Petitioners Brief — Steelman v. All Continent Corp.

Supreme Court, U. &

(aerate

|

NOV 16 1978

IN THE

Supreme Court of the United

Ocroser Term, 1978

No. 77-1648

<

American Civic Liperties Union,

Petitioner,

—vV.—

FreperaL Communications ComMission and

Unrrep States or AMERICA,

Respondents,

—and—

AmericaN Broapcastinc Companies, Inc., et al.,

Intervenors.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ooo

BRIEF FOR PETITIONER

AMERICAN CIVIL LIBERTIES UNION

eee —————————————— Ee

Burt NEUBORNE

40 Washington Square So.

New York, New York 10012

Bruce J. Ennis

Caries S. Sms

Micuare. Borein c/o American Civil Liberties

Davi M. Rice Union Foundation, Inc.

57 Worth Street 22 East 40th Street

New York, New York 10013 New York, New York 10016

Attorneys for Petitioner

i.

TABLE OF CONTENTS

Proceedings Below and Jurisdiction......... 1

Statement of the Case

The Precise Constitutional Issue

Presented for Review

ARGUMENT

THE FEDERAL COMMUNICATIONS

COMMISSION

MAY REQUIRE A CABLE OPERATOR TO

PERMIT PUBLIC ACCESS TO ONE OTHERWISE

UNUSED CABLE CHANNEL SINCE

: (A) SUCH

A REGULATION DOES NOT IMPINGE UPON A

SUBSTANTIAL FIRST AMENDMENT INTEREST

OF THE CABLE OPERATOR; (B)

SUCH A

REGULATION SUBSTANTIALLY ADVANCES THE

FIRST AMENDMENT INTERESTS

OF THIRD

PARTIES; AND (C) SUCH A REGULATION

APPROPRIATELY APPORTIONS A

SCARCE

COMMUNICATIONS RESOURCE WHICH IS

NECESSARILY THE SUBJECT OF

GOVERNMENTAL CONCERN.

A. The First Amendment Interests

of Cable Operators, Originators and

Viewers of Public Access Programming....

B. The Unique Attributes of the

Cable Television Medium as

fication for Public Access

CONCLUSION

a Justi-

BBEOS ccccesce

-13

20

32

40

ii.

TABLE OF AUTHORITIES

Cases:

Associated Press v. United States

States, 326 U.8. 1 (1945) #$£=seecccses 4, 30

Berger v. New York, 388 U.S. 41 (1967).. 3

Black Hills Video Corp. v. FCC,

399 £F.24€ 65 (6th Cir. 1968) .ccccccoce 2, 8

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) = j§<« eeeccsecs 4

Capital Broadcasting Co. v. Mitchell,

333 F.Supp. 582 (D.D.C. 1971), aff'd

405 U.S. 1000 (1973) j= i cescccccs 33

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) | jj ceeeccsess 32

Citizen Publishing Co. v. United States,

394 U.8. 131 (1969) = # ;+ i cesses oes 39

Cohen v. California, 403 U.S. 15 (1971)... 32

Columbia Broadcasting System v. Democratic

National Committee, 412 U.S. 94 (1973)

cocce 4, 213, 25, 27, 29, 34, 33, 34

Cox v. Louisiana, 379 U.S. 536 (1965) .... 7

Eastern Kentucky Welfare Rights Org. v.

Simon, 426 U.S. 26 (1976) ...... eee 14

FCC v. National Citizens Committee for

Broadcasting, U.S. (1978).... 4, 39

FCC v. Pacifica Fcundation, Inc.,

U.S. (1978) 4, 33, 34, 36

First National Bank of Boston v. Bellotti,

U.S. (2976) 8 = = —§ eeeeeccces 24

iii.

Freedman v. Maryland, 380 U.S. 51 (1965).. 4

Fortnightly v. United Artists Television,

392 U.S. 390 (1968) coccccce Sy S §

Gregory v. City of Chicago,

394 0.8. 243 (A968) 8 ceccevcesds coe 32

Hynes v. Borough of Oradell,

425 U.S. 610 (1976) eocccscccccccs FV

International Shoe Co. v. Washington,

326 U.S. 309 (1945) *“eeeoeeeveeeeeeenee 4

Katz v. United States,

389 U.S. 347 (1967) ccco0sebeees a

Lamont v. Postmaster General,

381 U.S. 301 (1965) 900068 6beebe - 24

Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85 (1977) ...... 28

Lorain Journal Co. v. United States,

368 U8 MS (ACE 0O—C~é«C ORO sooo oe

Martin v. City of Struthers,

319 U.S. 141 (1943) oeeeeeeneeeeeee 24

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974)

TTT TTTT 4, 20, 22, 26, 27, 29, 31

National Broadcasting Co. v. United

States, 319 U.S. 190 (1943)..... 4, 33, 34

Near v. Minnesota, 283 U.S. 697 (1931).. 23

New York Times v. United States,

403 U.S. 713 (1971) oeeeeveeneeeeee 23

iv.

Penn Central Transportstion Co. v.

New York, U.S. ae) )=§=~—sC SOS SS 17

Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations,

413 U.S. 376 (1973) «.eeeeeee 4, 22, 28, 33

Procunier v. Martinez, 416 U.S. 396 (1974)

ovecece 24

Red Lion Broadcasting Co. v. Federal

Communications Commisson,

395 U.S. 367 (1969)

eevccses S$, 235, 26, 20- 34, 336 B

Schmerber v. California,

381 U.S. 757 (1966) = qj - = eeececs 4

Smyth v. Ames, 169 U.S. 466 (1898) ...... 17

Spence v. Washington, 418 U.S. 405 (1974)

*eneee#ee 32

Teleprompter Corp. v. Columbia Broadcasting

System, 415 U.S. 394 (1974)

“eee enenenene Be 4, Se 18, 24

United States v. Midwest Video Corp.,

406 U.S. 649 (1972) ..... o $ B, De 36, 26

United States v. O'Brien,

7a was See tEeeee.—)—l—lUCtC~C~*~*‘i‘“‘“C;:*:S*‘SC HU 32

United States v. Southwestern Cable Co.,

392 U.S. 157 (1968)

*eeeveeee ee ee Be 4, 8, 16, 18, 24

United States v. United States District

Gourt, 667 0.8. 207 (i972) ccccse ceeee 3

Wooley v. Marynard, 430 U.S. 705 (1977).. 23

Yale Broadcasting Co. v. FCC,

414 U.S. 914 (1973) eenrerrrt ©# @ 21

Vv.

Administrative Decisions

Cable Television Report and Order,

36 FCC 2d 143 (1972) cee eeccoess 10

Cable Television Report and Order,

59 FCC 2a 294, reconsideration denied,

62 FCC 2d 399 (1976) j= ~~ ceesecves on ae

Constitutional Provisions

Amendment I passim

Amendment V lL pwenene ne oe

ie

Proceedings Below and Jurisdiction

The regulations at issue in this case

were adopted by the Federal Communications

Commission (FCC) in 1976, after a rulemaking

proceeding. Report and Order in Docket No.

20508, 59 F.C.C.2d 294, reconsideration

denied, 62 F.C.C.2d 399 (1976). The regula-

tions are set forth at 47 C.F.R. 76-252, et

seg. and are reproduced in the Appendix

prepared by the FCC as petitioner in 77-1575

at pp. 168-176. The regulations were chal-

lenged in two separate proceedings before the

United States Court of Appeals for the Eighth

Circuit. In Midwest Video Corporation v.

Federal Communications Commission, No. 76-1496

(8th Cir.), a cable operator challenged the

statutory and constitutional authority of the

FCC to issue the regulations. In American

Civil Liberties Union v. Federal Communica-

tions Commission, No. 76-1839 (8th Cir.), the

ACLU challenged the propriety, under principles

of administrative law, of the FCC's retreat

from 1972 rules which appeared to provide a

greater degree of public access to the cable

medium Given the resolution of the statutory

1 Numerous parties, including National Black

Media Coalition, Citizens for Cable Awareness

in Pennsylvania, and Philadelphia Community

Cable Coalition, all petitioners in 77-1662,

intervened as parties before the Eighth Circuit.

2.

and constitutional issues by the Eighth

Circuit, scant consideration was given to the

contention of the ACLU that the FCC's retreat

from the 1972 rules was questionable as a

matter of administrative law.? Until the

statutory and constitutional issues raised by

the Eighth Circuit's opinion are clarified,

however, petitioner agrees that it is not

appropriate to consider its administrative

law challenge. Accordingly, petitioner urges

this Court to reverse the decision of the

Eighth Circuit on the threshold question of

the FCC's statutory and constitutional power

to promulgate the 1976 regulations and to

remand the case for initial consideration

of petitioner's administrative law challenge. 3

. Petitioner contends that the rollback from

1972 to 1976 failed to consider the interests

of affected producers of public access programs

and failed to recognize the common carrier

aspects of cable television. Cf. Teleprompter

Corp. v. Columbia Broadcasting Systems, 41

U.S. 4); Fortnightly v. United Artists

Television, 392 U.S. 356 TIdeBy-

3 Such a procedure would be consistent with

this Court's decision in United States v.

Southwestern Cable Co., 352 U.S. 157 (1968),

upholding the powss of the FCC to impose reg-

ulations on cable operators while preserving

to the Circuits the initial responsibility

for passing upon administrative law issues

raised by such regulations. E.g., Black Hills

Video Corp. v. F.C.C., 399 F.2a65 th Cir.

1968) (upholding the regulations at issue in

Southwestern Cable).

3.

The Eighth Circuit's decision, holding

that the FCC lacked statutory authority to

issue the 1976 regulations and suggesting

that it lacked constitutional authority as

well, is reported at 571 F.2d 1025 (8th Cir.

1978). The judgment of the Court of Appeals

was entered on February 21, 1978. Timely

petitions for writs of certiorari were filed

by the FCC, the ACLU and the National Black

Media Coalition, et al. This Court granted

each petition on October 2, 1978

and ordered the cases consolidated for argu-

ment. Jurisdiction is invoked under 28 U.S.C.

1254(1).

Statement of the Case

This Court is no stranger to the chal-

lenge of integrating technological advances

which would have astounded the draftsmen of

the Constitution into the constitutional

scheme they wrought. Thus, whether it

involves the application of Fourth Amendment

doctrine to 20th century surveillance tech-

nology; * the Fifth Amendment to modern tech-

4 E.g., Berger v. New York, 388 U.S. 41

(1967); Katz v. United States, 389 U.S. 347

(1967). See generally, United States v.

United States District Court, 407 U.S. 297

T1972)

4.

5 the Due Process

niques of criminology;

Clause in the context of a society newly

made mobile by modern means of transport; ©

or the First Amendment to newly perfected

modes of communication, such as motion

pictures;’ radio and broadcast television; 8

a mass press;? and cable television,+° this

5 E.g., Schmerber v. California, 384 U S.

757 66).

6 International Shoe company v. Washington,

326 U.S. 309 (1945).

7 E.g., Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952); Freedman v. Maryland,

380 U.S. 51 (1965).

8 E.g., National Broadcasting Co. v. United

States, 319 U.S. 190 (1943); Red Lion Broad-

casting Co. v. Federal Communications Commis-

Sion, U.S. 367 (1969); Columbia Broad-

Casting System v. Democratic National Commitee,

412 U.S. ); Federal Commmications Commission,

Vv. iti f

Webbe (roy ey Fedecal Communications=

Commission v. Pacifica Foundation, Inc.,

U.S. (19°78).

9 E.g., Associated Press v. United States,

326 U.S. I (1945); Lorain Journal Co. v. United

States, 342 U.S. 143 (1951); Pittsburgh Press

’

Co. v. Pittsburgh Commission on Toman Relations

413 U.S. 376 CLaTay; Miami Herald Publishing

Co. v. Tornillo, 418 U.S.

10 E.g., United States v. Southwestern Cable

LL

Co., 2 U.S. 157 (1568); Fortnightly v.

United Artists Television, 392 a3. 350 (1968) ;

United States v. Midwest Video Corp., 496 U.S.

649 (1972); Teleprompter Corp. v. Columbia

Broadcasting System, 415 U.S. 394 (19574).

5.

Court has sought to defend the basic values

embedded in the constitution by seeking to

assure that modern technology is applied con-

sistently with those values. Whether the

latest product of modern communications tech-

nology - cable television - will be utilized to

advance - or to retard - basic First Amendment

values is what this case is all about.

Cable television began as a device to

re-transmit weak television broadcast signals

by wire. A weak television broadcast siqnal

was capable of reception by a cable facility

and re-transmission in amplified form over a

cable network to subscribing homes. In its

earliest form, therefore, cable television

consisted merely of a passive conduit which

served to broaden the availability of existing

ll

network broadcast signals. It quickly became

clear, however, that once a cable operator had

1l The essentially passive quality of cable

television's re-broadcast aspects has been

recognized in the copyright area in cases

holding that cable operators are not "perform-

ers" within the meaning of the Copyright Act

of 1909. Fortnightly v. United Artists Tele-

vision, 392 U.S. 350 (1968); Teleprompter Corp.

v.Columbia Broadcasting System, tis U.S. 394

4). Whether a cable operator who is

engaged merely in the passive re-transmission

of another's signal may be said to enjoy

strong First Amendment interests is discussed,

infra, at 22-31.

6.

secured an economic foothold based upon his

ability to re-transmit a strong television

broadcast signal to paying subscribers, he

would be in a position to originate program-

ming which was independent of existing televi-

sion broadcast signals. Moreover, because the

number of simultaneous transmissions over a

cable system is limited only by the nature of

the cable a cable operator may re-transmit

existing broadcast signals and originate his

own programming simultaneously. Finally,

given the dramatic capacity for simultaneous

transmission inherent in the cable process,

it rapidly became apparent that community

groups seeking access to an inexpensive yet

effective method of communication might be

accomodated on one or more cable channels

without interfering with the simultaneous re-

transmission of broadcast signals and the

simultaneous origination of independent

programming.

As an understanding of the potentiali-

ties of the cable process grew, so did a

recognition of its limitations. It rapidly

became apparent that economic factors created

a functional ceiling on the number of cable

systems which could operate with reasonable

efficiency in a given community. Moreover,

wholly apart from economic considerations,

ve

the dislocation inherent in the installation

12 and

of cable systems under the public streets

the difficulty of assuring secure and efficient

maintenance of a cable system running into

thousands of private homes , 23 led local author-

ities to impose stringent controls upon persons

seeking to operate cable systems. Under current

conditions, entry into the cable field remains

subject to restrictive local franchising

arrangements which assure existing CATV oper-

ators of a monopoly (or, in very few areas of

high population density, an oligopoly) over

the cable process.

Not surprisingly, FCC regulation of

cable television paralleled the evolution of

an understanding of its possibilities and

limitations. Initial FCC regulation of cable

operators centered on their perceived role as

passive re-transmitters of existing broadcast

signals. Thus, the first set of FCC cable

regulations to reach this Court required

operators to:

(a) re-transmit simultaneously

the signal of a local television

broadcaster who was subjected to

enhanced competition because a cable

12 Cf. Cox v. Louisiana, 379 U.S. 536 (1965).

13 Cf. Hynes v. Borough of Oradell, 425

U.S. 610 (1976).

operator had chosen to re-transmit

a distant signal which would not

otherwise have been directly compe-

titive with the local broadcaster;

(b) avoid, on request, same day

duplication of local television

programming; and

(c) refrain from introducing distant

signais into the 100 largest television

broadcast markets.

In United States v. Southwestern Cable Co.,

392 U.S. 157 (1968), this Court upheld the

statutory authority of the FCC to promulgate

14

such “reasonably ancillary" regulations.

14 The regulations themselves were upheld

on the merits in Black Hills Video Corp. v.

F.C.C., 399 F.2d 65 (8th Cir. 1968), cited

with approval in United States v. Midwest Video

Corp., 406 U.S. 649, 659, n. 17 (1973). It should

be noted that one regulation at issue in

Southwestern Cable required a cable operator

to make a channel available for a local tele-

vision broadcast signal which was subjected

to enhanced competition because of the cable

re-transmission of an otherwise non-competi-

tive distant signal. Thus, the Southwestern

Cable regulation contemplated pre-empting a channel

and forcing a cable operator to carry pro-

gramming which it might otherwise have omitted.

The public access regulation at issue in this

case is less onerous in that it operates only

to the extent a cable operator has an other-

wise unused channel. If the FCC was empowered

to compel cable operators to pre-empt a channel

in order to re-transmit a given broadcast

signal in Southwestern Cable, no obstacle

should exist to an FCC rule requiring the

transmission of public access programming on

an otherwise unused channel. In fairness, it

t unclear in both Southwestern Cable and Black

Hills Video Corp. whether First Amendment

objections to the compulsory transmission rule

were advanced.

9.

Paralleling the realization that cable tele-

vision need not be confined to a passive

re-transmission role, the FCC promulgated a

second set of regulations designed to assure

that cable television developed the necessary

technical capacity for the origination or

independent programming. The second set of

FCC regulations required cable television

operators to:

(a) engage in a significant degree

of independent program transmission; and

(b) establish facilities to permit

the local origination of independent

programming.

In United States v. Midwest Video Corp., 406

U.S. 649 (1972) (Midwest Video I), this Court upheld

the power of the FCC to promulgate such

15

program origination regulations.

The third set of FCC regulations (which

are the subject of this appeal) deal with the

capacity of cable television to serve as a

medium of communication for local groups

15 The regulations upheld in Midwest Video I

required a cable operator to pre-empt channels

for use in independent program transmissions.

Thus, cable operators under Midwest Video I are

compelled to carry original programming which

they might otherwise have omitted. The public

access regulation issue in this case is less

onerous since it requires the transmission of

public access programming only on otherwise

unused channels.

10.

seeking an efficient yet inexpensive mode of

communication. The initial FCC approach to

public access to cable television was a

vigorous one. Cable Television Report and

Order, 36 F.C.C.2d 143 (1972). Pursuant to

the 1972 order, cable television operators

were obliged to dedicate four channels to

pre-emptive public uses by March 3l, 1977.

However, in the years following the 1972

order, demand for public access use did not

match 1972 estimates. Accordingly, in 1976,

the FCC scaled down its public access regul-

ations to require one (as opposed to four)

public access channels. Moreover, the 1976

rules should be read to require a cable operator

to provide the single public access channel

only to the extent of otherwise unused channel

capacity. Report and Order in Docket No.

20508, 59 F.C.C.2d 294, reconsideration

denied, 62 F.C.C.2d 399 (1976).1®

In addition to scaling down the 1972

public access rules, the 1976 rules require

cable operators currently transmitting on a

12 channel capacity:

16 The 1976 rules are set out in the

petitioner's (F.C.C.) appendix in 77-1575

and are reported in 47 C.F.R. §76.252 et seq.

ll.

(a) to establish a capacity to

transmit simultaneously on 20 channels

by 1986;17

(b) to establish local facilities

for program origination; and

(c) to permit local groups to use

program origination facilities at

reasonable cost.l

The Court below ruled that the FCC lacked

statutory authority to promulgate any portion

of the 1976 (and, presumably, the 1972) rules.

Moreover, two members of the Court suggested

in dicta that even if statutory authority

existed, the 1976 regulations would violate

the First (and, perhaps, the Fifth) Amendment.

Finally, the public record reveals that

Midwest Video Corporation, the primary chal-

lenger of the F.C.C. public access rules, is

not itself transmitting on all] 12 currently

available channels, to say nothing of the 20

channels which will be available to it by

17 By deferring the 20 channel requirement

until 1986, the FCC assured that it would be

attained at moderate cost in connection with

replacement of existing equipment. Subscrib-

ers are not required to install equipment

capable of receiving all 20 channels.

18 Local groups using program origination

facilities for less than five minutes would

not be required to pay any fee.

1986. 29

12.

19 According to the public records maintain-

ed by Cable Television Bureau of the FCC,

Midwest Video's most recent channel utiliza-

tion status may be summarized as follows:

Channel Capacity Actual Channel

Physical System No. Current 1986 Transmission

002596-01 (Bloomfield,

Mo.) 12 20 8

002598-01 (Polar Bluff,

Mb.) 12 20 7

002594-01 (Greenville,

Miss.) 12 20 10

002593-01 (Clovis,

N.Mex. ) 10

002595-01 (Paris,

Tex.) 12 20 10

002592-01 (College Sta.,

Tex. ) 12 20 11

(excluding

automated time-

weather signal

on twelfth

channel. )

13.

The Precise Constitutional Issue

Presented for Review

The 1976 FCC rules at issue in this case

impose three obligations upon operators of

cable television systems. First, cable opera-

tors serving more than 3,500 subscribers must

establish a capacity to transmit simultaneously

on 20 channels by 1986 (the "capacity" require-

ment). Second, cable operators must maintain

local facilities for the origination (as opposed

to re-transmission) of local programming and

must make such facilities available at reason-

able cost to local groups wishing to use the

facilities to produce programs for the public

access channel (the "origination" requirement).

Finally, cable operators must, at a minimun,

permit public access to one otherwise

unused channel on a first come-first served

basis (the "public access" requirement).

Two factors complicate a definition of

the precise constitutional question before

this Court.

First, substantial ambiguity exists as

to the precise “public access" obligation

imposed on a cable operator by the 1976 regul-

ations. At a minimum, the 1976 regulations

require a cable operator to make available one

channel not otherwise engaged in program trans-

mission to local community groups on a first

14.

come-first served basis. The regulations are

ambiguous, however, as to whether a hypotheti-

cal cable operator transmitting broadcast

signals on all available channels must pre-empt

its regular programming to allow public access

programming on one or more channels. In addi-

tion, the regulations are ambiguous concerning

the obligation of a cable operator confronted

with expansive demands for public access

which cannot be satisfied by a single

channel. Petitioner suggests that neither

ambiguity is ripe for resolution on this record.

It is doubtful whether Midwest Video

possesses standing to challenge any reading of

the FCC regulation requiring it to pre-empt

a channel in regular use for use as a public

access channel, since the public record indi-

cates that Midwest Video does not currently

operate at its current 12 channel capacity

(to say nothing of the 20 channel capacity

required by 1986). See supra at 12, n. 19.

In order for Midwest Video to present a case

or controversy challenging a "pre-emptive"

public access regulation, it must demonstrate

an injury in fact fairly traceable to the

challenged regulation. E.g., Eastern Kentucky

Welfare Rights Org. v. Simon, 426 U.S. 26

(1976). Since Midwest Video does not utilize

its current 12 channel capacity, it can hardly

ne

15.

claim to be injured ina "pre-emptive" sense by

a rule requiring it to set aside one otherwis-

unused channel for public access use.

Similarly, the demand for public access

to the Midwest Video system has not been shown

to exceed the capacity of a single otherwise

unused channel. If and when demand for public

access broadcasting becomes so great as to

exceed the capacity of a single channel, this

Court may be confronted with a case or contro-

versy requiring consideration of whether the

1976 regulations require multi-channel public

access and, if so, whether such regulations

are valid. However, on the present record,

the issue of multi-channel public access is

simply not ripe for adjudication.

Since neither the "pre-emptive" nor the

"multi-channel" issues potentially posed by

the FCC regulations are properly before the

Court, the minimum reading of the 1976 regul-

ations, requiring a cable operator to set

aside one otherwise unused channel for public

access broadcasting, is the only access issue

properly before the Court.

The second factor which complicates the

precise delineation of the constitutional

issue is the insistence of the court below on

treating the "capacity," "origination" and

"access" aspects of the 1976 rules as a single

16.

package for First Amendment purposes. In fact,

the requirement of a 20 channel capacity by

1986 and the obligation to establish local

program origination facilities do not raise

substantial First Amendment issues. If the FCC

is authorized to impose regulations of any kind

on cable operators, regulations delineating the

minimum technical capabilities of a cable opera-

tor, both as to channel capacity and studio

equipment, fall at the core of the regulatory

power. Origination regulations at least as

substantial as the origination regulation at

issue in this case were upheld by this Court in

United States v. Midwest Video Corp., 406 U.S.

649 (1972), and channel content controls far

more onerous than the 20 channel capacity reg-

ulation at issue in this case were sustained

in United States v. Southwestern Cable Co.,

392 U.S. 157 (1968). Indeed, were this Court

to take seriously the suggestion of the court

below that the 1976 "capacity" and "origina-

tion" regulations raise substantial First

Amendment issues, the regulations upheld in

Midwest Video and Southwestern Cable would be

placed in jeopardy, to say nothing of the bulk

of the FCC regulations governing broadcast

signals and broadcast equipment. 2°

20 Echoing the jurisprudence of an earlier

era, the court below suggested that the e xpend-

iture of funds necessary to comply with the

(continued next page)

17.

petitioner suggests, no substantial constitu-

tional question is raised with respect to the

"capacity" or “origination"™ rules. However,

the regulation providing for public access to

a single otherwise unused cable channel does

raise a substantial First Amendment issue which

petitioner urges should be resolved in favor of

public access to cable television. *+

"capacity" or "origination" rules might con-

stitute an unlawful taking of property for

public use without compensation in violation

of the Fifth Amendment. E.g., Smyth v. Ames,

169 U.S. 466 (1898). However, under modern

analysis, the expenditure of funds incidental

to compliance with a rationally based adminis-

trative regulation is not a "taking" of prop-

erty within the meaning of the Fifth Amendment.

Cf. Penn Central Transportation Compan . New

Vorke oS T1978); Duke Power CO. v.

Carolina Environmental Study Group, Inc.,

U.S. (1978).

Moreover, by postponing the 20 channel capac~-

ity requirement to 1986 in order to allow

compliance in the ordinary course of equipment

replacement and by providing for reasonable

compensation whenever a public access broad-

caster uses local origination facilities for

more than five minutes, the FCC removed any

serious financial sting from the regulations,

rendering the Eight Circuit's Fifth Amendment

discussion wholly artificial. Certainly,

nothing in the record would support a finding

that Midwest Video faces se:‘ious economic

consequences as the result »f complying with

the "capacity" or "“originat.on” rules.

21 (Please see next page for footnote 21)

18.

21 The issue of the statutory authority of

the FCC to impose the 1976 regulations is, of

course, a substantial one. Petitioner claims

no expertise on the statutory questions and,

thus, defers to the FCC and the Department of

Justice. However, it would seem that the

Rubicon was crossed on the statutory author-

ization issue when this Court extended the

"reasonably ancillary" concept of Southwestern

Cable to cover regulations which were not con-

cerned with the competitive impact of cable

television on UHF and VHF broadcasters. United

States v.Midwest Video Corp., 406 U.S. 649

(1972). It does not appear that the regula-

tions at issue in this case are generically

different from the regulations at issue in

Midwest Video I.

Moreover, a rationale for FCC regulation

of cable television exists entirely apart from

an expansive reading of the "reasonable ancil-

lary" concept. The ability of cable televi-

sion to flourish as a viable economic process

rests directly upon its role as a re-trans-

mitter of VHF-UHF broadcast signals. Since

it is the conventional broadcast industry

which makes possible the continued existence

of cable operators and since the existence of

cable operators will inevitably exert influ-

ence on the broadcast paggeanteen! 2 the FCC

possesses an interest in regulating

the symbiotic relationship

which exists between cable operators and

conventional broadcasters. Cf. Teleprompter

Corp. v. Columbia Broadcasting System, 415

U.S. 4). Once that symbiotic rela-

tionship has resulted in a cable industry

capable of independent program origination,

the FCC possess an obvious interest in assur-

ing that the capacity for independent program

origination, which owes its very existence to

conventional broadcast re-transmission, is

utilized consistently with the policies which

Congress sought to advance in providing for

the regulation of conventional broadcasting

in the first place.

19.

Accordingly, the sole substantial

constitutional question presented here is:

Does the First Amendment bar the

Federal Communications Ccmmisson from

requiring a cable television operator

to make one otherwise unused channel

available for public access programming?

20

ARGUMENT

THE FEDERAL COMMUNICATIONS COMMISSION

MAY REQUIRE A CABLE OPERATOR TO PERMIT

PUBLIC ACCESS TO ONE OTHERWISE UNUSED

CABLE CHANNEL SINCE: (A) SUCH A REGUL-

ATION DOES NOT IMPINGE UPON A

SUBSTANTIAL FIRST AMENDMENT INTEREST

OF THE CABLE OPERATOR; (B) SUCH A

REGULATION SUBSTANTIALLY ADVANCES THE

FIRST AMENDMENT INTERESTS OF THIRD

PARTIES; AND (C) SUCH A REGULATION

APPROPRIATELY APPORTIONS A SCARCE

COMMUNICATIONS RESOURCE WHICH IS

NECESSARILY THE SUBJECT OF GOVERN-

MENTAL CONCERN,

The Court below reasoned that the inval-

idation in Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), of a Florida

statute granting political candidates a right

to equal space to reply to newspaper attacks

on their qualifications compelled a similar

invalidation of the FCC rule providing for

public access to one otherwise unused cable

television channel. The Court reasoned that

governmental attempts to impose even a bene-

ficent degree of control over the content of

a cable operator's program transmission

violate the First Amendment because they open

the door to less palatable forms of govern-

mental intrusion. Such an absolutist approach

has the virtue of both simplicity and caution

21.

and has been embraced by at least one member

of this Court. Columbia Broadcasting System

v. Democratic National Committee, 412 U.S. 94,

154 (1973) (Douglas, J. concurring). See

also, Yale Broadcasting Co. v. F.C.C., 414

U.S. 914, 916 (1973) (Douglas, J., dissenting

from denial of certiorari). See also,

Columbia Broadcasting System v. Democratic

National Commi.tee, supra, at 132-134 (Stewart,

J. concurring). Although the risk of the

"slippery slope" is undoubtedly present, a

principled stopping point exists which

permits the FCC to advance First Amendment

values by fostering public access to other-

wise unused cable television channels without

subjecting those values to an intolerable

level of risk. Where, as here, the regulation

1) does not impinge on a substantial First

Amendment interest of a cable operator;

2) substantially enhances the First Amendment

interests of third parties wishing to origin-

ate and to receive public access programming;

and 3) involves a mode of communication nec-

essarily requiring a governmental choice as

to who may be permitted to engage in it,

reasonable access rules strengthen the First

Amendment and should be sustained.

22.

A. The First Amendment Interests of

Cable Operators, Originators and

Viewers of Public Access Programming

Participants in the act of communication

generally play one of three roles - speaker,

hearer or conduit. Speakers and hearers fit

neatly within the "Hyde Park" model of speech.

Conduits, however, neither endorse nor receive

a given message, but merely provide the tech-

nological capacity to increase its audience

range. The electronic media, both broadcast

and cable, display aspects of both speaker

and conduit. Thus, in originating programs

and in making editorial judgments about which

program to transmit, broadcasters and cable

operators perform classic speaker roles in

initiating the dissemination of ideas. How-

ever, when they provide merely a technologi-

cal capability for third persons to originate

a message, without exercising selective judg-

ment or editorial control, broadcasters and

cable operators perform as passive conduits

rather than active speakers a Although this

22 A similar division of functions exists in

the print media between the newspaper as

speaker and the newspaper as conduit. Compare,

Miami Herald Publishing Co. v. Tornillo, 480

U.S. 241 (1973), with Pittsburgh Press Co. v.

Pittsburgh Commission on Human Relations, 413

U.S. Se

23.

Court has assiduously guarded the First

Amendment interests of speakers and hearers,

it has refused to afford substantial First

Amendment protection to mere conduits.

Traditional First Amendment analysis has

centered on the primacy of the speaker.

Viewing the communicative process as the

creation of a "marketplace of ideas," this

Court has systematically acted to prevent

government interference with the freedom of

speakers to introduce potentially new ideas

into the marketplace. E.g., Near v. Minne-

sota, 283 U.S. 697 (1931); New York Times v.

United States, 403 U.S. 713 (1971). Since

the FCC rule at issue in this case merely

provides for access to an otherwise unused

channel, it in no way impinges upon cable

operators in their role as speakers. More-

over, since cable operators remain free to

disavow material appearing on a public access

channel, the access rule does not even impinge

upon a cable operator's interest in refraining

from appearing to endorse ideas with which he

disagrees. Cf. Wooley v. Maynard, 430 U.S. 705

(1977).29 Thus, viewed from the perspective of the

cable operator as speaker, the FCC access rules do not

impinge upon a substantial interest. Moreover, viewed

from the perspective of speakers seeking access to

cablecasting, the regulations are obviously beneficial.

23 (See next page for footnote)

24.

In recent years, this Court has identi-

fied the hearer as a significant participant

in the communicative process and has estab-

lished protections designed to protect a

hearer's access to the marketplace of ideas.

E.g., Martin v. City of Struthers, 319 U.S.

141 (1943); Lamont v. Postmaster General, 381

U.S. 301 (1965); Procunier v. Martinez, 416

U.S. 396 (1974); First National Bank of

Boston v. Bellotti, U.S. _—s_« (1978).

Indeed, especially in the broadcast area,

23 To the extent current or future FCC

regulations require cable operators to pre~-

existing broadcasting in favor of public

access broadcasting, a more serious issue of

interference with a cable operator's role as

speaker would be presented. Even under such

circumstances, the role of cable operators

as mere re-transmitters of an existing

broadcast signal may cause them to be viewed

as conduits rather than speakers. Cf. Tele-

prompter Corp. v. Columbia Broadcasting

System, 415 U.s. 394 (1974). In United

States v. Southwestern Cable Co., 392 U.S.

I57 (1968), this Court approved an FCC rule

which compelled a cable operator to pre-empt

one channel for the transmission of a local

broadcast signal. However, given the record

in this case, this Court need not confront

legal issues posed by a pre-emptive regula-

tion since no showing can be made that

Midwest Video is utilizing its entire

available channel capacity.

23.

hearers rather than speakers appear to be the

prime beneficiaries of First Amendment doc-

trine. Thus, in Red Lion Broadcasting Co. v.

Federal Communications Commission, 395 U.S.

367 (1969), this Court noted:

--.-it is the right of the viewers

and listeners, not the right of

the broadcasters which is para-

mount.... It is the right of the

public to receive suitable access

to social, political, esthetic,

moral and other ideas and exper-

iences which is crucial here.

That right may not constitution-

ally be abridged either by

Congress or the F.C.C. Id. at

390.

See also, Columbia Broadcasting System v.

Democratic National Committee, 412 U.S. 94,

102 (1973}, The FCC regulations at issue in

this case act to benefit hearers by assuring

that the silence of an otherwise unused

channel is replaced by speech. Thus, viewed

from the perspective of a hearer, the FCC

access rules are wholly positive.

Given the central roles played by speak-

ers and hearers, relatively little attention

has been expended on the First Amendment

rights and obligations of conduits. Cases

which appear to deal with the legal status

of conduits often actually turn on the rights

of speakers or hearers. Thus, in Miami Herald

26.

Publishing Co. v. Tornillo, 418 U.S. 241 (1974),

this Court invalidated a right of reply statute

which compelled a newspaper to provide equal

space to reply to editorial attacks on a candi-

date's qualifications. However, as the

Tornillo opinion demonstrates, this Court was

seriously concerned with the impact which the

statute would have on the newspaper's status

as an originator of speech. This Court noted

in Tornillo that a newspaper's role as speaker

was adversely affected by the statute in two

ways. First, the space devoted to the reply

would, of necessity, pre-empt other material

which the newspaper wished to originate. Since

the FCC access rules in this case apply onlv to

otherwise unused channels, no possibility

exists of similarly pre-empting a cable opera-

tor's speech. Second,

Faced with the penalties that

would accrue to any newspaper that

pubiished news or commentary

arguably within the reach of the

right of access statute, editors

might well conclude that the safe

course is to avoid controversy.

418 U.S. at 257.

Unlike Tornillo, however, the FCC access rules

this case would not act to "chill" a cable

operator from engaging in controversial pro-

gramming. Indeed, the existence of a public

access channel would

27.

enhance a cable operator's ability to "speak"

on controversial subjects since he would not

risk pre-emption of regular programming for

rebuttal.

Similarly, in Columbia Broadcasting

System v. Democratic National Committee, 412

U.S. 94 (1973), this Court ruled that broad-

casters who had decided to refrain entirely

from transmitting political advertisements

were not constitutionally required to accept

paid political advertising. The impact of a

contrary ruling in CBS v. DNC would have com-

pelled broadcasters to transmit political

advertising in spite of an editorial judgment

to avoid the area completely in favor of transmitting

alternative material. Such a constitutionally

imposed veto of a broadcaster's judgment on

program content would have constituted a

direct interference with the broadcaster's

role as initiator of speech. Moreover, as

in Tornillo, mandating political advertising

would have pre-empted the broadcaster's first

choice of material.** thus, both Tomillo and CBS v.

DNC turn on the adverse impact of the regulation ir

question on the ability of the newspaper-broadcaster

to act as a speaker.

24 This Court expressly left open the question of

whether the FCC could compel stations to accept

political advertising. 412 U.S. at 119.

28.

Where, as here, a regulation aimed at a

conduit does not impinge upon its ability to

act as an originator of speech, and does not

adversely affect the ability of third parties

to act as speakers or hearers, this Court has

upheld the regulation against First Amendment

challenge. This Court has consistently recog-

nized that, unlike speakers and hearers, mere

conduits do not possess independent First

Amendment interests of substantial magnitude.

In Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations, 413 U.S. 376

(1973), this Court considered a pure "conduit" case.

In Pittsburgh Press, the newspaper challenged

a prohibition on employment advertisements

carried in sex-designated columns. Since the

newspaper itself was not the speaker, but was

merely the conduit for a third party; and

since the prohibition did not inhibit or pre-

empt material which the newspaper itself

wished to disseminate, this Court sustained

the prohibition. >

Similarly, in Red Lion Broadcasting Co.

v. Federal Communications Commission, 395

25 Whether the regulation would have survived consti-

tutional scrutiny were it directed at the speaker (the

putative employer) rather than the newspaper as conduit

is more doubtful. Cf. Linmark Associates, Inc. v.

Township of Willingboro, 431 U.S. 85 (1977).

29.

U.S. 367 (1969), this Court recognized that

once a broadcaster exercises the editorial

judgment described in CBS v. DNC and deter-

mines to transmit political information, the

First Amendment is not violated by - and,

indeed, may compel - FCC regulations assur-

ing "balanced" coverage. Since, unlike CBS

v. DNC, the "Fairness Doctrine" at issue in

Red Lion did not interfere with a broadcaster's

editorial judgment as to whether to enter an

area at all and since it did not adversely

affect the rights of third parties as speakers

or hearers, this Court sustained it against

First Amendment challenge.

In Red Lion, this Court rejected an argu-

ment similar to that advanced in Tornillo,

that the existence of an FCC Fairness Doctrine

might well deter broadcasters, acting as

speakers, from discussing material which could

trigger the Fairness Doctrine. Mr. Justice

White noted that if the existence of a Faimess

Doctrine were found to, in fact, exercise a

"chilling effect" on the willingness of broad-

casters to discuss controversial areas, he

declined to speculate on possible "chilling,"

leaving the issue for future consideration on

an appropriate factual record. Thus, to the extent

30.

that even the Fairness Doctrine threatens to

impinge on a broadcaster's speech role rather

than his role as a conduit, it would be con-

stitutionally suspect. Since, in Red Lion,

the Court viewed the Fairness Doctrine solely

as acting on broadcasters as conduits, rather

than as speakers, it upheld the doctrine.

Finally, in Associated Press v. United

States, 326 U.S. 1 (1945), and Lorain Journal

Co. v. United States, 342 U.S. 143 (1951),

this Court sustained the application of anti-

trust principles to the newspaper industry by

reasoning that the anti-trust laws acted on

newspapers solely in their role as a conduit.

Thus, in Associated Press, the Court stressed

that the decree in question exerted no effect

upon the newspaper's role as an originator of

speech. 326 U.S. at 26, n. 18. Similarly,

in Lorain Journal, the predatory advertising

policy condemned by the Court in no way

impinged upon the role of the newspaper as

speaker rather than conduit.

Since the FCC access rules in this case

do not adversely affect cable operators as

speakers and since the rules benefit cable

subscribers as hearers and the public as speakers,

they clearly satisfy First Amendment scrutiny. More-

over, when the substantially different interest of a

31.

broadcaster serving as a conduit 7° rather than as

a speaker is coupled with the unique charac-

teristics of the cable television mediun,

the constitutionality of the access rule is

_Clearly established.

26 A broadcaster performing as a conduit

rather than as a speaker is not without some

First Amendment protection. Thus, to the

extent a regulation aimed at a conduit adversely

affects a broadcaster's capacity to function

as a speaker, or adversely affects third par-

ties in their attempts to function as speakers

or hearers, the requlation is subject to

—— Amendment review, Compare,

os” Mian Herald Publishing Co. v. Tornillo,

U. 241 (1974), and Columbia peoenoners ng

S Prong Vv. Democratic National Committee, 41

U.S. 94 (197s), with Pittsburgh Press Co. v.

Pittsburgh Commission on Human Relations, 413

U.S. ), and Red Lion Broadcasting Oo.

v. Federal Communications Commission, U.S

367 (1969). Moreover, even apure "conduit"

regulation may raise extremely difficult First

Amendment issues. Thus, a law requiring print-

ers to accept all proferred manuscripts or a

regulation requiring printers to set aside

presses (in use or idle) for public access

printing, would raise serious First Amendment

questions. The difficulty in charting the

outer reaches of the government's power to

regulate speech conduits argues against

resting the constitutionality of the FCC access

rules solely on the conduit function performed

by cable operators. It is enough t. note that,

as conduits, the First Amendment interests of

broadcasters are far less significant than

those of speakers and hearers.

32.

B. The Unique Attributes of the

Cable Television Medium as a

Justification for Public

Access Rules

Three modes of verbal communication are

currently in general use: face-to-face oral

communication, written communication and elec-

tronic communication. Although face-to-face

oral and most written communications are largely

exempt from government regulation,’ this Court

27 The most significant government regulation

of face-to-face communication involves charting

the grey area between constitutionally protect-

ed offensive speech and fighting words. Compare,

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

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Written communication, apart from constraints

imposed by libel and obscenity law, remains

largely free from government regulation.

A fourth mode of communication, relying

substantially on non-verbal forms of commmica-

tion, such as symbolic speech and physical

demonstration, isalso in widespread use. E.g.,

Gregory v. City of Chicago, 394 U.§. 111 ( ;

Spence v. Washington, 418 U.S. 405 (1974). How-

ever, government regulation of such non-verbal

modes of communication has tended to stress the

impact which the speaker's "conduct" has upon

governmental interests unrelated to the sup-

pression of speech. E.g., United States v.

O'Brien, 391 U S. 367 68). No such analysis

is open to the government in a verbal conmmmications case.

33.

has tolerated a substantial degree of regula-

tion of electronic communication. E.g.,

National Broadcasting Co. v. United States,

319 U.S. 190 (1943); Red Lion Broadcasting

Co. v. Federal Communications Commission, 395

U.S. 367 (1969); Capital Broadcasting Co. v.

Mitchell, 333 F.Supp. 582 (D.D.C. 1971), aff'd

mem. sub nom. Capital Broadcasting Co. v.

Kleindienst, 405 U.S. 1000 (1973); Federal

Communications Commission v. Pacifica Founda-

tion, Inc., U.S. __—s_ (1978). Two explan-

ations are generally advanced to justify the

difference in treatment between essentially

unregulated oral and written communication

and highly regulated electronic communication.

First, it has been argued that

the pervasive impact of the electronic media,

which reaches into the home and exerts enor-

mous influence on its targets, justifies a

degree of regulation calculated to safeguard

the interests of hearers. Thus, in Pacifica,

this Court imposed a direct interference on a

broadcaster performing as a speaker in order

to protect the interests of hearers, and up-

held an application of an FCC regulation

banning vulgar, but not obscene, words from

the airwaves in the afternoon. 28

28 (See next page for footnote 28)

34.

Second, it has been argued that

the limited broadcast spectrum available to

radio and television broadcasters requires a

governmental choice among competing applicants

as to who will be permitted to exploit the

limited resource. Given the necessity for a

governmental choice among competing applicants

for a lucrative monopoly, the FCC has argued

that it may impose reasonable requirements as

a condition of its grant of a monopoly to

. , 29

exploit a scarce communications resource.

28 The Pacifica Court expressly declined to

reach the validity of the broad FCC regulation

before it, preferring, instead, to decide the

case narrowly on its facts. Pacifica is one

of the few cases in which the FCC has chosen

to interfere with a broadcaster performing as

a speaker as opposed to a conduit. The full

scope of the FCC's power to require broad-

casters to perform as conduits has not been

explored. The issue was expressly reserved

in Columbia Broadcasting System v. Democratic

National Committee, 412 os 93, 119 (1973). How-

ever, if Pacifica permits interference with a

broadcaster acting as speaker, it is an a

fortiori proposition that broadcasters May also

be regulated when they perform as conduits,

since, as conduits, they advance less sub-

stantial First Amendment claims.

29 The "scarcity" rationale was first

advanced in National Broadcasting Co. v.

United States, 319 U.S. 190 TLSE ay

‘iti aati

35.

The Eighth Circuit noted the substantial

degree of regulation of broadcasters already

approved by this Court, but ruled that cable

television operators should be governed by the

considerably more stringent First Amendment

standards applicable to written and oral speech.

The Eighth Circuit was clearly wrong in analo-

gizing cable television to the publication of

a newspaper rather than to the broadcast of a

television show.

First, to the extent the pervasive effect

of broadcasting on its hearers justifies

increased government regulation, no principled

distinction exists between the "hearers" of a

television broadcast or a television cablecast.

Candor compels petitioner to concede that

“viewer impact" is a weak justification

for regulating either broadcasting or

cablecasting. it is unclear whether

broadcasting exercises a greater or lesser

impact on hearers than newspapers. Certainly,

36.

untested assumptions concerning the relative

impact of print and broadcasting provide a

slender basis for drawing constitutional lines.

Moreover, to the extent broadcasting does exer-

cise a greater impact, it is unclear why such

an increased impact justifies increased regula-

tion. If broadcasting does possess sogreat a

potential impact, traditional First Amendment

doctrine would appear to counsel caution in

permitting the government to exercise control

over it. It would be a strange view of the

First Amendment which forbade the state from

regulating print and oral communication because

of the potential for governmental a>buse, but

which permitted regulation of the electronic

media precisely because the potential for

abuse is far greater .°° If, however, viewer

impact is a valid justification for regulat-

ing broadcasters, it would seem equally vaiid

as a justification for regulating cable operators.

30 Reliance on a "viewer impact"

rationale invites unfortunate exercises

in regulatory power designed to "protect"

hearers from material deemed harmful or

offensive by vocal segments of the

society. As Pacifica attests, such an

approach is fraught with danger.

ee re eee

37.

Second, the critical factor justifying

FCC regulation of broadcasters - the neces-

sity for a governmental choice among compet-

ing applicants for a monopoly to exploit a

scarce communications resource - is present

for both broadcasters and cable operators.

In the broadcast area the "scarcity" which

gives rise to a need for a governmental choice

among competing applicants is imposed by the

inherent limitation on the availability of

frequencies on the broadcast spectrum. Thus,

in the broadcast area, technological factors

impose a ceiling on the number of possible

broadcasters, necessitating a government

decision as to who they should be. No such

technological ceiling exists in the cablecast

area, since, theoretically, an unlimited

number of cables may be laid by competing

cablecasters. However, unlike print or oral

speech, entreé to cable television is governed

by a ceiling no less formidable than the tech-

nological ceiling which bars unlimited entry

to broadcasting. In order to lay a cable, a

potential cable operator must often engage in

extensive excavation of the public streets.

Moreover, in order to connect and to maintain

a cable system, cable operators must have

virtually continuous access to private homes.

The local dislocation inherent in the instal-

lation of a cable system and the day-to-day

38.

intrusion into the privacy of homes required

to maintain the system, has led virtually

every local community confronted with

the issue to impose rigid entry restraints

upon prospective cable operators. Thus,

unlike oral or written speech, government

permission is required before a cable opera-

tor may seek to engage in installation and

transmission.

Moreover, the economic structure of the

cable industry is such that only a limited

number of cable operators can operate effi-

ciently in a given community, rendering it

necessary for localities to license natural

monopolies (or natural oligopolies) to

insure that the demand for cable service is

efficiently and economically satisfied.?+ Of

course, technology may evolve to the point

where the operation of a cable system does

not entail social dislocation traceable to

its installation and maintenance. Moreover,

technoiogical advances may render it econom-

ically feasible to expand the number of poten-

31 Whether economic factors alone could

justify the imposition of regulations on the

broadcast industry was expressly reserved by

the Court in Red Lion, 395 U.S. at 401, Nn.

28. This Court need not reach the issue in

this case either, since the ceiling on the

number of possible cable operators does not

flow exclusively from ecomomic factors.

39.

tial cable systems capable of operating in a

given community. At the point when cable sys-

tems may be established and maintained without

social dislocation and may be operated as some-

thing other than natural monopolies, the current

justification for government regulation may

cease to exist. However, under current condi-

tions, a cable television franchise is fully as

scarce a communications resource as a place on

the broadcast spectrum.

Unlike broadcasting and cable operation,

however, entry into oral or written speech is

not subject to a ceiling on the number of poten-

tial speakers. No technological factors limit

the number of speakers or writers. No social

dislocation comparable to excavating the public

streets flows from the establishment of a news-

paper or the delivery of a public speech. No

economic factors operate to render print or

oral communication the province of a limited

number of entities. Accordingly, society

32 Recent developments in the newspaper industry point

toward the growth of an oligopolistic pattern of

operation. This Court has upheld regulations designed

to sever ownership of newspapers and broadcast outlets

in an effort to spur competition in the communications

industry. E.g., Federal Commission Commmications v.

National Citizens Conmittee for Broadcasting, U.S.

(1978) ; Citizen Publishing Co. v. United States,

394 U.S. 131 (1969). However, the economic factors

which cambine to render cable television a natural

monopoly are not present in the print media where

competition, though shrinking, remains pervasive.

40.

makes no attempt - nor could it - to limit the

maximum number of oral speakers and writers

and, thus, is never called upon to exercise a

choice between competing applicants for

limited positions. Since society does not

grant any benefit to a speaker or writer, it

may impose no burden. Conversely, however,

the grant of a benefit to broadcasters and

cable operators justifies, if it does not conpel,

the minimal burdens at issue in this case.

CONCLUSION

Since the FCC access rule in no way

interferes with a cable operator's role as

an originator of speech; since the FCC access

rule exerts a strongly beneficial impact upon

the First Amendment interests of third parties

as speakers and hearers; and since the access

rule is imposed as a guid pro guo for a grant

of a natural monopoly to exploit a scarce

communications resource, the rule is constitu-

tionally permissible. Accordingly, the decision

of the Eighth Circuit on the question of the FCC's

power to issue the 1976 regulations should be reversed

and the case remanded for consideration of the

remaining issues presented by the record.??

33 (Please see next page for footnote)

41.

33 As petitioner has suggested, the record

on this appeal does not require this Court to

address the issues of multi-channel or pre-

emptive public access to cable television.

Moreover, a decision upholding a narrow

reading of the FCC access rules will not end

the controversy over demands for greater

public access to cable television. To the

extent that the reasonably foreseeable demand

for public access broadcasting exceeds the

capacity of a single channel, the question of

whether the FCC may - or must - require multi-

channel public access will, no doubt, arise.

Moreover, to the extent a cable operator

desires to utilize all 20 channels in its

"regular" programming, the question of whether

the FCC may - or must - direct a cable operator

to pre-empt regular programming in favor of

public access programming will, no doubt, arise.

In deciding the "pre-emptive" public access

issue, this Court will be required to decide

whether a cable operator engaged in the re-

transmission of a broadcast signal should be

treated as a speaker or a conduit for the pur-

poses of First Amendment analysis. Finally,

this Court will be asked to decide whether, in

serving the interest of hearers and Originators

of public access programming, the FCC may -

Or must - impinge on the speaker status (if

any) of cable operators and render them invol-

untary conduits. Although such issues are not

free from doubt, petitioner believes that the

substantial First Amendment interests served

by increased public access to cable television

justify, and perhaps compel, FCC regulations

designed to treat cable operators as common

carriers over a portion of their 20 channel

capacity.

42.

Respectfully submitted,

BURT NEUBORNE

40 Washington Square So.

New York, New York 10012

BRUCE J. ENNIS

CHARLES S. SIMS

c/o American Civil Liber-

ties Union Foundation

22 East 40th Street

New York, New York 10016

MICHAEL BOTEIN

DAVID M. RICE

57 Worth Street

New York, New York 109013

*

Attorneys for Petitioner

November 16, 1978

Counsel acknowledge the valuable assistance

of Ms. Joe Schneider, a third-year student at

New York Law School, in the preparation of this

brief.