Petition — Steelman v. All Continent Corp.

Supreme Court, U.S ~

=EFL ED

MAY 19 1978

Supreme Court of the United

38 4:

TAEL RODAK, JR.,

Ocroser Term, 1977 CLERK

No. ..€47 1648

—_

American Crivit Liserties Union,

Petitioner,

——\

FreperaL COMMUNICATIONS COMMISSION

and Unitepv States or AMERICA,

Respondents,

American Broapcastinc Companies, Inc., et al.,

Intervenors.

—_—_—_—_

—_—_—_——

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

—_all lO

Bruce J. Ennis

Jory M. Gora

Cuares 8. Simms

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Micuaet Botern

Communications Media Center

57 Worth Street

New York, New York 10013

Attorneys for Petitioner

ale

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......-cceecesees

OPINIONS BELOW... -sceecccccccsccvees

JURISDICTION... ccccccscesecesesscess

QUESTIONS PRESENTED. ...-eeeeeceesees

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.....-.seeeeee0

STATEMENT OF THE CASE...-sseeeeecees

REASONS FOR GRANTING THE WRIT.......

1. The Jurisdictional Question...

2. The Constitutional Issues.....

Ul erry Te ee ee ee

ii

afieo

TABLE OF AUTHORITIES

Cases:

American Civil Liberties Union v. FCC,

S23 F.24 1344 (9th Cir. 1975) .ccccccokd

Associated Press v. United States,

326 * ® l 6 eer ry Tere rT i

Brookhaven Cable TV, Inc. v. Kelly,

Nos. 77-6156 and 77-6157 (2d Cir.),

decided March 29, | Pree 11,12

Cohen v. California, 403 U.S. 15(1971).15

Columbia Broadcasting System, Inc. v.

Democratic National Committee, 412

SoBe FS (EFT FP cccceses scccccccecse SEBGIn

Cox v. New Hampshire, 312 U.S. 569

CRUGE) co ccccecscoscce TYTTTTTy ccccece -15

First National Bank of Boston v.

Bellotti, 46 U.S.L.W. 4371 (1978)..14,26

Kovacs v. Cooper, 336 U.S. 77(1949)...15

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) *seeeeeneeeeee Terres?

New York Times v. Sullivan, 376 U.S.

et |) ey .ceeeeceeuus 15

Police Department of Chicago v. Mosley

Gee Beas Bee Geers 045666666 66 660essens 26

Red Lion Broadcasting Co. v. FCC,

See Walle See Gees Kecosccevcocsse -Ppassim

-iii-

Cases Continued

Stark County Communications, Inc.,

ee & | | a) > ) eee 6

United States v. Midwest Video Corp.,

6466 U.8. G49 (A972) cvcvccecs ++.+-passim

United States v. Southwestern Cable Co.

Dee Gels, SET THEO Es besadcédeds .11,19,22

West Virginia Board of Education v.

Barnette, 319 U.S. 624 (1943).......15

Whitney v. California, 277 U.S. 357

[rh 6068666 ener eneeeeeeee “eevee neeeeee 15

Wooley v. Maynard, 435 U.S. 705

airy Fe *eeree. e*evnreef#rre* se eeeeeerefetee «© 15

Administrative decisions:

Cable Television Report and Order, 36

POC 24 143 (1972) ccccccccccscccs --6,16

Other citations:

Constitutional provisions:

Amendment Bese eeteovecescos 5,9,10

Miscellaneous:

Tribe, American Constitutional Law

Ey Tre errr er rT Te eer TT TTT: vs.

a ok

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

AMERICAN CIVIL LIBERTIES UNION,

Petitioner

Vv.

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents

AMERICAN BROADCASTING COMPANIES,

INC., et al,

Intervenors

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The American Civil Liberties Union

("ACLU") respectfully petitions for a writ

of certiorari to review the judgment of the

United States Court of Appeals for the

Eighth Circuit, setting aside as beyond its

jurisdiction the Federal Communications Com-

mission's ("Commission's") Report and Order

in Docket No. 20508, 59 FCC , recon-

sideration denied, 62 FCC 24 399 ("1976

Report").

-2-

.

OPINIONS BELOW

The opinion of the Court of Appeals

(App. A) is reported at 571 F.2d 1025 (8th

Cir. 1978). The Commission's 1976 Report

(App. B) and order denying reconsideration of

the 1976 Report (App.C) are reported at

59 FCC 2d 294 and 62 FCC 2d 399.

JURISDICTION

The judgment and opinion of the United

States Court of Appeals was entered on

February 21, 1978. Jurisdiction is conferred

by 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

Whether the Federal Communications Com-

mission has jurisdiction to issue regulations

designed to compel cable television operators

*/ Petitioner ACLU relies on and incorpor-

ates by reference the Petitioner's Appendix

in a companion case, Federal Communications

Commission v. Midwest Video Corp., No.

77-1575. That Appendix includes each of the

opinions required by Supreme Court Rule 23

(1).

o9~

to increase technological capacity of cable

systems, and to guarantee third-party

(public) access to cable channels and facil-

ities.

Whether the Federal Communications Com-

mission's jurisdiction to issue regulations

designed to compel cable television opera-

tors to increase technological capacity of

cable systems and to guarantee third-party

access to cable channels and facilities is

consistent with the First Amendment when

that power is exercised to increase the

diversity of information and communication

available to viewers.

Whether the Federal Communications Com-

mission's 1976 Report on Cable Television

Channel Capacity and Access Channel Require-

ments, insofar as it retreated irrationally

and without justification from the channel

capacity and access requirements of the

1972 Report, should be set aside as arbi-

trary, capricious, and contrary to constitu-

tional right.

ago

CONSTITUTIONAL AND STATUTORY

PROVIS INVOL

The First Amendment to the United States

Constitution provides:

Congress shall make no law...

abridging the freedom of speech,

or of the press....

The relevant provisions of the Communi-

cations Act of 1934, 48 Stat. 1064, as

amended, 47 U.S.C. § 151 et seq., are set

forth in App. E. The relevant rules and

regulations of the Federal Communications

Commission are 47 CFR § 76.251 (1972 ed.),

set forth in App. F, and 47 CFR §§ 76.254

and 76.256 (1977 ed.), set forth in App. B,

pp. 169-175.

STATEMENT OF THE CASE

This case proceeded in the Court of

Appeals on the basis of two petitions, one

by Midwest Video Corporation and one by

the American Civil Liberties Union, for

review of the Federal Communication Commis-

sion's Report and Order in Docket No. 20508

("1976 Report"), imposing mandatory access

and increased channel capacity requirements

==

upon cable television operators having 3500

or more subscribers. +/

Midwest Video Corporation, a cable oper-

ator subject to the new regulations, argued

that the regulations were beyond the juris-

diction of the Commission and violative of

the free speech clause of the First Amend-

ment. Midwest had raised nearly identical

arguments against a 1969 Commission regquire-

ment that cable operators originate some

programing and have available facilities for

local production and presentation of pro-

grams, arguments rejected by the Court in

United States v. Midwest Video Corp., 406

U.S. 649 (1972) ("Midwest Video I").

Petitioner here, the American Civil

Liberties Union, sought review of the 1976

Report on the ground that the access regula-

tions lacked a rational basis, but only to

the extent that the Commission retreated in

the 1976 Report from earlier regulations,

issued in 1972, which required all existing

systems to supply a public access channel,

an education access channel, a local govern-

ment channel, and a leased access channel,

1/ App. B.

~ =

by March 31, 1977.2/ The ACLU also argued

that the Commission's retreat from the 1972

rules was arbitrary, capricious, contrary to

constitutional right, or otherwise not in

accordance with law within the meaning of the

Acministrative Procedure Act, 5 U.S.C. § 706

(1970) insofar as the Commission's revised

access rules worked against the Commission's

longstanding objectives of "increasing the

number of outlets for self-expression and

augmenting the diversity of programs and

wees services available to the pub-

the Commission had not fulfilled its mandate

lic. However, although it believed that

to promote those public objectives, the ACLU

joined the Commission in rejecting Midwest's

jurisdictional argument, reasoning that the

basis for regulation of cable operators “for

2/ See Cable Television Report and Order 36

FCC 2d 143, 243-44 (1972) ("1972 Report") and

App. F. Shortly thereafter, the Commission

began granting waivers of the 1972 Report

requirements on ad hoc basis, see Notice of

Proposed Rulemaking, 53 FCC 2d 782 (1975),

usually by granting permission to operate

just one "conglomerate" channel for the

"dedicated uses". E.g., Stark County Com-

munications, Inc., 38 FCC 24 1147 TLaT ay

3/ App. B, pp. 102-103. See also Midwest

Video I, supra, 406 U.S. at 667-68.

oFea

the purpose of promoting the objectives for

which the Commission had been assigned over

broadcasting" was conclusively settled by

Midwest Video I, supra, 406 U.S. at 667. And

without contending that the regulations of

the 1976 Report were the only rules that

would have passed muster under the First

Amendment, or indeed without necessarily sup-

porting each specific provision of the Com-

mission's regulations, the ACLU argued that

the First Amendment did rot disable the Com-

mission from achieving "long-established,

regulatory goals in the field of television

broadcasting by increasing the number of out-

lets for community self-expression and aug-

menting the public's choice of programs and

types of services." Midwest Video I, supra,

406 U.S. at 667-68.

The Court of Appeals set aside the 1976

Report as beyond the Commission's jurisdic-

4/

tion. The majority— strongly disagreed

with the Commission's resolution of the

4/ Judge Webster concurred in the judgment.

App. A, p. 91. The opinion was authored by

Judge Markey, of the Court of Customs and

Patent Appeals, sitting by designation,

and joined by Judge Stephenson.

policy questions at issue.>/ The court held

that the Commission had failed to show a

sufficient nexus between the access rules

and its regulation of broadcast television.

It thereby disregarded this Court's judgment

in Midwest Video I that the goals of in-

creased outlets for community self-éxpres-

sion and increased objects of public choice

are within the Commission's mandate for the

regulation of television, and that the Com-

mission may regulate cable operators as well

as broadcasters in furtherance of those goals

so long as it has “reasonably determined”

that its regulations will further those “1

5/ Compare Chief Justice Burger's concur-

ring opinion in Midwest Video I, upholding

the Commission's jurisdiction to require

cable operators to originate programming:

[T]he scope of our review is lim-

ited and does not permit me to

resolve this issue as perhaps I

would were I a member of the Fed-

eral Communications Commission.

That I might take a different

position as a member of the Com-

mission gives me no license to do

so here. 406 at 676.

=~

goals, 406 U.S. at 667-68.°/

The Court made two further rulings on

the assumption (which it had rejected) that

the 1976 Report was within the Commission's

jurisdiction. First, it ruled that, if it

had been required to reach the First Amend-

ment question raised by Midwest, it would

have held the Commission's access rules con-

stitutionally impermissible on the authority

of Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) .2/ ana, substituting its

6/ In his pivotal concurrence in Midwest

Video I upholding the Commission's power to

require program origination by cable opera-

tors to further the goals of diversity and

increased choice, Chief Justice Burger ob-

served that "Congress has created its

instrumentality to regulate broadcasting,

and has given it pervasive powers, and the

Commission has generations of experience

and "feel" for the problem. I therefore

conclude that until Congress acts, the Com-

mission should be allowed wide latitude...."

Midwest Video I, supra, 406 U.S. at 676.

7/ App. A, pp. 72-74. The Eighth Circuit

apparently did not decide whether the in-

creased channel capacity requirement, alone,

would have violated the First Amendment.

However, if cable systems are "entitled

(continued on p. 10)

St=

own judgment for the Commission's as to the

wisdom or necessity of the rules under re-

view, the Court indicated that even if the

Commission did have jurisdiction to promul-

gate the increased capacity and access ruies,

the 1976 Report would probably have been

overturned as “reflective of agency action

er 8

arbitrary and capricious. °"/

to the same First Amendment rights as other

private media, such as newspapers", App. A,

p. 72, it would seem that imposition of any

requirements by federal or by local author-

ities would be forbidden. The decision

below, if left standing, would apparently

bar local imposition of access and capacity

regulations and would call into serious

question local licensing provisions gen-

erally, including the wide-spread practice

of granting cable operators exclusive fran-

chises.

8/ App. A, p. 91

ell-@-

REASONS FOR GRANTING THE WRIT

A. The Jurisdicticnal Question

This Court should decide whether the

Commission has jurisdiction to issue regula-

tions designed to increase cable channel

capacity and to guarantee part of that cap-

acity for public access in the interests of

increased diversity. The Eighth Circuit's

resolution of that question is patently in

error under the reasoning and holding of

previous decisions upholding Commission jur-

isdiction over cable television operation,

United States v. Midwest Video Corp., 406

U.S. 69 (1972), and United States v. South-

western Cable Co., 392 U.S. 157 (1968). It

is also directly contrary to two recent de-

cisions in the Courts of Appeals, American

Civil Liberties Union v. FCC, 523 F.2d 1344

(9th Cir. 1975), and Brookhaven Cable TV,

Inc. v. Kelly, F.2d _—, - Nos. 77-6156,

77-6157 (24 Cir. March 29, 1978).2/

9/ American Civil Liberties Union v. FCC,

523 F.2d 1344 (9th Cir. 1975), upheld the

(continued on p. 12)

ol) 3e

The Commission has sought, and inter-

venor National Black Media Coalition

("NBMC") intends to seek, certiorari to re-

view the decision below. The Commission,

of course, has a direct and vital interest

in the jurisdictional question. Petitioner

ACLU is confident that the Commission and

the NBMC will fully and ably present to the

Court the reasons why the Eighth Circuit's

jurisdictional holding should be reviewed.

Accordingly, Petitioner relies on those

presentations.

1972 Report's access rules against an argu-

ment that the Commission was required to go

further and treat cable operators as common

carriers in the manner provided by Sub-

chapter II of the Communications Act of

1934, 47 U.S.C. §§ 201-222. The Ninth

Circuit had no doubts, however, that the

Commission had ample jurisdiction to impose

either the relatively relaxed 1972 Report

access rules, or, indeed, full common car-

rier status if the Commission saw fit to do

so. Id., 523 F.2d at 1350-1351. In Brook-

haven Cable TV, Inc. v. Kelly, the Second

Circuit held that regulation of special pay

cable programming was preempted by the FCC.

Brookhaven followed Midwest Video I in up-

holding FCC jurisdiction over cable TV so

long as that regulation furthers "a goal

which [the Commission] is entitled to pur-

sue in the broadcast area." Slip. op. at 5.

=) 32

B. The Constitutional Issues

The ACLU is primarily concerned with

that portion of the decision below which held

that the First Amendment is an inflexible bar

to any imposition by Congress or by the

Commission of increased capacity and access

requirements. The issue is of overriding

national importance: the fundamental struc-

ture of television communication for millions

of Americans will be determined by its res-

Olution. Only this Court can determine

whether the Commission has properly weighed

the competing considerations relevant under

the First Amendment. 12/

At the heart of this case, should the

10/ The Court has been careful to exercise

its responsibility as a national tribunal to

decide the critical cases that have struct-

ured a national electronic communications

system consistent with the First Amendment's

prohibition of abridgement of freedom of

speech and the First Amendment's protection

of editorial diversity, independence, and

responsibility. See United States v. Mid-

west Video, supra (FCC has jurisdiction over

cablecasting); Columbia Broadcasting Systems

v. Democratic National Committee, 415 U.S. 394

(1974) (broadcaster discretion to reject

advertisements); Red Lion Broadcasting Co. v.

F.C.C., 385 U.S. 367 (1969) (fairness doctrine) ;

National Broadcasting Co. v. United States,

U.S. ) (requirement of licensee

independence).

o14<

Court reverse on the jurisdictional question,

is the problem of where cable television fits

into the First Amendment system of freedom of

expression. The majority below stated that

"care and concern [for First Amendment rights]

is remarkably absent from the 1976 Report."

App. A, p. 66. To the contrary, although

petitioners have urged that the Commission's

retreat from the broader 1972 channel capacity

and access rules was arbitrary and capricious,

petitoners believe that the Commission's

general approach to channel capacity and access

rules represents a sensitive balance of the

following five competing First Amendment

interests and principles implicated by the

medium of cable television:

l. The interest of a free press in

minimizing the dangers of govermnental

control or governmental editorial

intervention. See, e.g., Miami Herald

Publishing Co. v. Tornillo, supra;

CBS v. DNC, supra.

2. The interest of the public in

receiving the widest variety and di-

veristy of communications. See, e.g.,

First National Bank of Boston v.

Bellotti, 46 U.S.L.W. 4371 (April 26,

1978); Red Lion Broadcasting Co. v.

-15-

FCC, 395 U.S. 367 (1969); New York

Times v. Sullivan, 376 U.S. 254 (1964).

3. The interest in furthering self-

expression. See, e.g., Cohen v.

California, 403 U.S. 15 (1971);

Whitney v. California, 274 U.S. 357,

375 (1927) (Brandeis, J., concurring).

4. The principle that a person cannot

be forced to say what he does not wish

to say. See, e.g., Wooley v. Maynard,

430 U.S. 705(1977); West Virginia

Board of Education v. Barnette, 319

U.S. 624 (1943).

5. The principle that the government

can impose content-neutral time, place,

and manner regulations to further

important governmental interests not

aimed at suppressing speech so long

as the flow of information and ideas

is not unduly constricted. See, e.g.,

Kovacs v. Cooper, 336 U.S. 77 (1949);

Cox v. New Hampshire, 312 U.S. 569

(1941).

Without analysis, the Court of Appeals

held that cable operators are the exact

equivalent, in First Amendment terms, of

ol6<

newspaper owners, and are thus not subject

to regulation, because the factor that has

justified regulation of broadcasters - scarce

spectrum resources - is assertedly not appli-

cable to cable Tv. 1L1/ But the Court faiied

to consider whether, based on factors rel-

evant to cable TV, but not to newspaper

publishing, the Commission might legit-

imately have concluded, in its expertise and

discretion, that the First Amendment interests

and principles set forth do not apply to

cable television in precisely the same

manner as they apply to newspapers, and that

the differences between cable and newspapers

justify, under the First Amendment, minimal,

non-intrusive regulations designed to in-

crease third-party diversity and choice with-

1l/ Although there is no theoretical limit

on the number of cables that can be laid in

any locality, there are very substantial

practical limits. Cable operators have

generally demanded, and received, exclusive

franchises from local or state regulatory

authorities. Accordingly, even if cable

television channels are not "scarce" in

precisely the same way as are broadcast

frequencies, cable television may still be

“scarce” for purposes of First Amendment

analysis.

-17-

out subjecting cable operators to govern-

mental intervention or pressure. 12/

12/ In a perceptive summary of the competing

considerations at issue here, Professor

Lawrence Tribe has observed:

[the] decision to vindicate rights of

access with respect to the electronic

media but neti the print media may be

seen as simultaneously realizing two

competing constitutional values: “access

in a highly concentrated press and min-

imal governmental intervention.” By

regulating access in the electronic

media exclusively, one achieves sig-

nificant assurance that information not

disseminated by the regulated (electron-

ic) sector will be published by the un-

regulated (print) sector; and the com-

petition provided by such publication

should in turn help to offset any in-

direct tendency of access regulation to

induce narrow or timid coverage within

the regulated (electronic) sector....

Since each new medium tends to be

widely perceived as "a law unto itself,"

the danger of escalating from a tolerable

to an intolerable level of regulation

may be minimized by initially focusing

regulatory efforts on new technologies.

If it is correct that “[a]ccess regul-

ation in the print media would have

immediately signified a pronounced break

with traditional first amendment theory,”

with an attendant transformation in the

boundaries of the legally thinkable and

a corresponding increase in pressure to

regulate still more deeply, then perhaps

-18-

Differences in the characteristics of media

may justify differences in the First Amendment

standards applied to them. Red Lion Broad-

casting Co. v. FCC, supra, 395 U.S. at 386;

Columbia Broadcasting System, Inc. v. Demo-

cratic National Committee, 412 U.S. 94, 101

(1973) (hereinafter "CBS v. DNC”.)

As the Commission properly recognized,

cable does not share all the characteristics

of broadcasting; accordingly, different First

Amendment analysis may be warranted. 13/

[Footnote 12/continued]

the initial selection of the electronic

media as the regulated sector illustrates

a way of exploiting new technology to

permit regulatory experimentation while

maintaining vital links with con-

stitutional tradition.

Lawrence Tribe, American Constitutional Law

(1978) at 699-700 (footnotes omitted).

13/ For example, the Commission has ruled that

the fairness doctrine does not apply to cable

operators to the extent that they are passive

transmitters.

-19-

On the other hand, at least three character-

istics of cable television, ignored by the

majority below, suggest that the First Amend-

ment cannot automatically be applied as if

cable were the technological equivalent of

newspapers.

First, cable television relies on broad-

14/

cast signals. As the decisions in Mid-

west Video and Southwestern Cable indicate,

cable television's operation greatly affects

the broadcast media over which the Commission

has extensive, constitutionally permissible

power. Indeed, the crucial interdependence

and interrelationship between broadcasting

and cable television was apparently a major

factor in the Court's rejection of Midwest's

argument that, because of the First Amendment's

application to all nonscarce media, the 1969

program origination rules were beyond the

Commission's jurisdiction. See generally

Midwest Video I, supra,and Brief therein

for respondent Midwest Video Corporation.

14/ See Midwest Video I, supra, 406 U.S. at

662, nn. 21-22.

-20-

Second, in contrast to newspaper pub-

lishers, cable operators are by the very

nature of the medium unable to cperate freely,

at will, without public sufferance, licensing

and assistance. Publishers can simply print

and distribute; cable operators must enlist

governmental authority to gain access to

public rights of way, to dig up streets, to

lay cable, and to secure the local mono-

polies, enjoyed by nearly all cable operators,

that make cable operation financially possible

or attractive. Neither historically, nor

practically, can cable operators exist

completely independent of government.

To the extent that cable operators func-

tion as cablecasters, or "speakers", the First

Amendment prohibits governmental abridge-

ment of their free speech rights, and of the

correlative right "of the public to receive

suitable access to social, esthetic, moral,

and other ideas and experiences," Red Lion,

supra at 390. But the extensive governmental

assistance cable television operation requires

is not guaranteed by the First Amendment. Nor

does the First Amendment guarantee that such

assistance will be provided on demand, and

=2le@

free of accompanying regulation. 15/

The Court has observed that the government

could constitutionally impose access re-

quirements on broadcast frequencies, and the

words used by the Court are equally applicable

to cable television: "rather than confer

[cable operation] monopolies on a relatively

small number of licensees, in a Nation of

200,000,000, the Government surely could have

decreed that each [cable system] should be

shared by those who wish to use it, each being

assigned a portion of the ... day or the ...

week." Red Lion, supra, at 390.

15/ "As Mr. Chief Justice (then Judge) Burger

has stated in a related context:

The Petitioners [telephone companies

providing CATV channel distribution

facilities] have, by choice, inserted

themselves as links in this indivis-

ible stream and have become an integral

part of interstate broadcast transmission.

They cannot have the economic benefits

of such carriage as they perform and be

free of the necessarily pervasive juris-

diction of the Commission.”

Midwest Video I, supra, 406 U.S. at 662 n. 21

(citation omitted; emphasis added).

@22e

Third, as the Commission 16/ and che

Court 17/ have recognized, cable television

is technologically a “hybrid,” sharing sig-

nificant characteristics of both broadcasters

and common carriers. Indeed, cable television

is similar in important respects to electronic

broadcast media, to print media, and to

common carriers. The Commission's regulations

mandating increased capacity to twenty channels

and guaranteeing one (1976 Report) or four

(1972 Report) channels of that capacity for

public access on a first-come first-served

basis are founded on the common carrier

characteristics and capabilities of cable

technology. This suggests a different and

more accurate analogy for the purpose of

First Amendment analysis--the comparison of

cable systems with telephone systems. 18/

16/ Cable Television Report and Order, 36

FCC 2d 143 (1972).

17/ United States v. Southwestern Cable Co.,

392 U.S. 157, 172-178 (1968).

18/ The similarities are suggestive, and

striking. First, both cable and telephone

systems rely on cables laid, or wires strung,

from disparate points to a central trans-

mitting or switching facility. Second, with

each, although there is no theoretical limit

to the number of competing systems in any

~23e

The regulation of telephonic and telegraphic

cables as common carriers, with responsi-

bility indifferently to carry messages, has

never been held to violate the First Amend-

ment. AT&T is free to carry its own messages

on telephone lines; but it is also required,

in the public interest and consistent with the

First Amendment, to carry messages of the

public on a first-come, first-served basis.

These factors were overlooked or ignored

by the court below. The majority held that

cable television is not a public forum,

App. A, p. 68, and accordingly ruled that

public access was not constitutionally

[Footnote 18/ continued]

locality, economic constraints dictate

monopolistic operation. Third, although the

majority of telephone calls are still placed

by individual callers to selected, active

recipients, the advent of recorded notices

and public service messages has made it in-

creasingly clear that the telephone has no

more inherent audience discrimination than

cable television has. Finally, commercial

development of the picturephone and two-way

cable television capabilities has rendered

the uses and potentialities of cable tele-

vision and the telephone increasingly in-

distinguishable.

-24-

required. But deciding that cable television

is not a public forum does not answer the very

different question of whether public access

is constitutionally permissable. As the Court

has indicated, access may be permissable with-

out being required. Red Lion, supra, 395

at 390.

In CBS v. DNC, for example, the Court

did not appear to doubt that the Commission

could, consistent with the First Amendment,

"devise some kind of limited access that is

both practicable and desirable,"although it

held that political parties had no First

Amendment right of enforced access to broad-

cast time. CBS v. DNC, supra, 412 U.S.

at 131. The Court's citation of the Com-

mission's proposed rule on cable access did

not suggest any First Amendment bar. Id.

* * *

In CBS v. DNC, the Court warned against

freezing the dynamic process of designing

"reasonable regulation compatible with the

First Amendment rights of the public and the

licensees." 12/ That warning is especially

19/ CBS v. DNC, supra, 412 U.S. at 132.

-25-

important here, and argues strongly for the

exercise of this Court's authority to review

the decision below. The Eighth Circuit has

called a sharp halt to the search for a

"limited right of access that is both prac-

ticable and desirable," held out as a con-

tinuing option and opportunity in CBS v. DNC.

The decision renders any such right of access

violative of the First Amendment.

Although some forms of regulation would

involve the Commission and the courts in

continuous, intrusive oversight of message

content, impermissibly transforming govern-

ment officials into editors, not all regu-

lations designed to increase diversity and

access need necessarily do so, as the court

below apparently believed. For example, an

increased channel capacity requirement, by

itself, although foreclosed by the ruling

below, would theoretically raise none of the

dangers posed. 20/ Some forms of access,

20/ The Commission supported and enforced the

All Channel Receiver Act of 1962 expressly

in order to promote increased diversity

and program choice through the growth of

Ultra High Frequency television stations.

=26-

including the form chosen by the Commission's

rules, do not present the danger of "the risk

of an enlargement of government control of

broadcast discussion of public issues"

that has concerned the Court. See, e.g.,

CBS v. DNC, supra, 412 U.S. at 126. Just as

government regulation of telephonic commun-

ications on a first-come, first-served basis

has not involved the courts or the Commission

in a continuing oversight of message content,

increased capacity and first-come, first-

served public access regulation would carry

no danger of discrimination on the basis of

subject content, Police Department of

Chicago v. Mosley, 408 U.S. 92, 96 (1972),

or identity of speaker, First National Bank

v. Bellotti, supra. 21/

21/ The Commission has been required, under

the fairness doctrine, to judge broadly

whether a licensee's overall performance

indicates a sustained good faith effort to

meet the public interest in being fully and

fairly informed. CBS v. DNC, supra, 412 U.S.

at 127. Access on a first-come, first-

served basis could be implemented by the

Commission's cable rules without even that

minimal degree of oversight, which has been

thought consistent with the First Amendment.

Red Lion, supra.

oF

In the field of electronic communication,

where speakers depend on governmental assis-

tance and licensing, the Court has not found

the First Amendment a bar to the Commission's

consideration of the fact that "the ...

public interest in providing access to the

marketplace of ‘ideas and experiences' would

scarcely be served by a system ... heavily

weighted in favor of the financially

affluent or those with access to wealth."

CBS v. DNC, supra, 415 U.S. at 94. But

ignoring CBS v. DNC, the Eighth Circuit has

forbidden the Commission to rely on that

"public interest in providing access to the

market place" of ideas even where, because

of the technological characteristics of cable

television, it is possible to give full

rein both to the unfettered interests of

cable operators, as cablecasters, to program

whatever messages they choose, and to the

national policy, derived from the First

Amendment, of encouraging "'the widest

possible dissemination of information from

diverse and antagonistic sources.' Associ-

ated Press v. United States, 326 U.S. 1, 20,

Red Lion Broadcasting Co., Inc. v. Federal

Communications Commission, 395 U.S. 367

~++-" Midwest Video I, supra, 406 U.S. at

668 n. 27.

-28-

CONCLUSION

The Court below held that the increased

channel capacity and public access rules were

beyond the Commission's jurisdiction and, if

within that jurisdiction, violative of cable

operators' First Amendment rights.

Although the jurisdictional holding of

the Court below is erroneous, and should be

reversed, the First Amendment holding

particularly requires review. The majority

simply assumed that cable operators were the

First Amendment equivalent of newspaper

publishers, without consideration of the

characteristics of cable television that may

justify differences in the First Amendment

standards applied to it. Examination of

those characteristics is necessary to decide

whether the First Amendment bars the

Commission's imposition of channel capacity

and public access rules to achieve long-

standing regulatory goals of increasing out-

lets for community self-expression, and

augmenting the public's programming choice.

This case presents the question of where

cable television fits into the First Amend-

ment system of freedom of expression. The

-29-

Court should grant the writ of

certiorari.

Respectfully submitted,

BRUCE J. ENNIS

JOEL M. GORA

CHARLES S. SIMS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

MICHAEL BOTEIN

Communications Media Center

57 Worth Street

New York, New York 10013

Attorneys for Petitioner