# Petitioners Brief — Steelman v. All Continent Corp.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1034%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1938
- **Citation:** 305 U.S. 665

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1034%3A2. Public record. Not legal advice.