Amicus Curiae Brief — Turner Broadcasting System, Inc. v. FCC

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IN THE : —

Supreme Court of the United States

OCTOBER TERM, 1993

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TURNER BROADCASTING SYSTEM, INC., et al.,

Appellants,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF AMICUS CURIAE OF COURTROOM

TELEVISION NETWORK IN SUPPORT

OF APPELLANTS

FLOYD ABRAMS

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amicus Curiae

Of Counsel:

JANET A. BEER

CAHILL GORDON & REINDEL

(a partnership including

a professional corporation)

November 9, 1993

(BEST AVAILABLE COPY

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases PAGE

Century Communications Corp. v. FCC, 835 F.2d 292

(D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988) 6n

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir.

1985), cert. denied, 476 U.S. 1169 (1986)........... 6n

Turner Broadcasting System, Inc. v. FCC, 819 F. Supp.

32 (D. D.C.), prob. juris. noted, 114 S. Ct. 38

ccc ca ckcacccccscccccccccce. 1]

Statutory Materials

Cable Television Consumer Protection and Competition

Act of 1992, 47 U.S.C.A. §§ 534, 535 (West Supp.

EEG RECN sce nccccccccccsccsccccccccs passim

Other Materials

Comment: Here's Justice, The New Yorker, Oct. 11, 1993.

The D.C. Circuit Review—F ederal Communications

Commission: Must-Carry and the Continuing Search

for a First Amendment Standard of Review for Cable

Regulation, 57 Geo. Wash. L. Rev. 1248 (1989) ___.. 6n

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-44

>

TURNER BROADCASTING SYSTEM, INC., et ail.,

Appellants,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

>

BRIEF AMICUS CURIAE OF COURTROOM

TELEVISION NETWORK IN SUPPORT

OF APPELLANTS

PRELIMINARY STATEMENT

Courtroom Television Network (“Court TV”) submits this

brief amicus curiae in support of the appellants in this case.

Each party to this suit has given Courtroom Television Network

written consent to the filing of this brief pursuant to Rule 37.3

of this Court, and copies of their consents have been filed with

the Clerk of this Court.

2

INTEREST OF AMICUS CURIAE

Court TV is a 24-hour-a-day, 7-day-a-week cable legal news

network and cable programmer dedicated to reporting on the

U.S. legal and judicial systems. Court TV began operations on

July 1, 1991. It is a joint venture of corporations from both the

cable and broadcast television industries. Court TV creates all

of its Own programming and specializes in extended, “gavel-to-

gavel” coverage of civil and criminal trials, both live and on

tape, supplemented by attorney commentators who explain the

proceedings to a lay audience. Court TV's programming, which

covers the judicial process not with sound bites but with full,

objective reports of the proceedings, has been widely praised

as an innovative form of public service television.

Like commercial television networks, Court TV depends for

its Continued existence on its ability to secure viewers for its

programming, both because cable systems pay On a per-sub-

scriber basis for the programming they carry and because

national advertising rates are Strongly dependent on the num-

ber of viewers a program attracts. Like other cable program-

mers, Court TV is almost entirely dependent upon cable system

operators to deliver its programming. It cannot gain access to

any appreciable body of viewers without securing positions in

the channel line-ups of a significant number of the thousands

of cable systems throughout the country.’

The “must-carry” rules that are challenged in this case, 47

U.S.C.A. §§ 534 and 535, mandate that cable Operators set

aside a certain number of channels to carry local broadcast sta-

tions. Because every cable system has a finite number of chan-

nels, the must-carry rules reduce the number of channels

available to cable programmers and thus make it more difficult

for Court TV and other cable programmers to Zain positions in

, Unless Court TV's programming is carried by cable system

operators, the network can reach only the smal! percentage of viewers

who have satellite dishes and can thereby obtain its signal without sub

scribing to a cable system.

cable system line-ups and, in consequence, more difficult to

secure the viewers they need if they are to continue creating

and distributing programs.

Court TV is deeply interested in the outcome of this case.

The central issue before the Court is whether Congress, con-

sistent with the First Amendment, may require the operators of

cable television systems to devote channels to local broadcast

stations regardless of the operators’ programming preferences

and regardless of the effects on other, congressionally disfa-

vored programmers. When the Court decides this case it will

determine whether cable operators that would otherwise choose

to carry Court TV's innovative news programming will be

required to forgo or curtail Court TV's channel access in order

to provide channels to local broadcast stations, including shop-

ping networks.

This brief is filed to set forth for the Court the practical

impact on a relatively new cable network of the must-carry

rules embodied in Sections 4 and 5 of the Cable Television

Consumer Protection and Competition Act of 1992 (“the 1992

Act”), codified at 47 U.S.C.A. §§ 534 and 535 (West Supp.

1993), and to show that those must-carry provisions, entirely

apart from their impact on the First Amendment rights of cable

system operators, have a substantial negative impact on the

First Amendment interests of cable programmers.

SUMMARY OF ARGUMENT

Court TV's day-to-day experience illustrates the impact that

must-carry rules have on cable programmers in general and, in

particular, on relative newcomers endeavoring to bring inno-

valive or distinctive programming options to the public. That

impact has been to make it significantly more difficult for

national cable programmers, particularly new ones, to reach the

public—and, of course, for the public to receive such pro-

gramming. To demonstrate this, this brief summarizes four

recent situations in which the 1992 Act’s must-carry rules

4

adversely affected Court TV's ability to be shown at different

locations in the country.

ARGUMENT

THE IMPACT OF MUST-CARRY LEGISLATION

HAS BEEN TO SUPPRESS THE SPEECH OF CABLE

PROGRAMMERS AND TO DEPRIVE THE PUBLIC

OF THE OPPORTUNITY TO SEE PROGRAMS OF

ITS CHOICE

A. Court TV’s Programming And Access To Viewers

Since its creation in 1991, Court TV has specialized in

“gavel-to-gavel” coverage of trials, both live and taped, com-

mencing with opening statements and continuing through the

jury verdict. Each trial is anchored by a team of experienced

attorneys and legal journalists; in voice-overs and during

breakaway interviews, commentators highlight significant sub-

stantive issues and explain procedural matters. A recent com-

mentary in The New Yorker magazine noted “{t}he superb

coverage of state trials by the two-year-old Court TV cable net-

work.” Comment: Here's Justice, The New Yorker, Oct. 11,

1993, at 8.

Court TV covers both civil and criminal trials. as well as

parole hearings, death penalty hearings, and municipal and

night courts across the United States. The network has tele-

vised proceedings in state, federal, and municipal courts

throughout the United States, as well as trials from the former

Soviet Union, from El Salvador and Serbia, and from the World

Court at the Hague. By broadcasting extended, often live, cov-

erage of a broad range of court proceedings, Court TV aims to

enable its audience to understand how trials are actually con-

ducted and to appreciate the broad impact of legal issues and

the legal process on public and private life. Court TV's

uniquely comprehensive trial coverage provides the public with

5

an Opportunity to observe and understand the reality of the

judicial system.

In addition to its comprehensive trial coverage, Court TV

reports legal and judicial news several times each day and pro-

vides a daily wrap-up and analysis of trial highlights. Several

regular weekly and quarterly series present in-depth analyses

of aspects of the legal system, background reports on contro-

versial high-profile cases, analysis and commentary on Wash-

ington-based legal news and judicial issues, and opportunities

to call in to voice opinions or to obtain consumer law infor-

mation.

Court TV also provides programs specifically designed for

education. Each month Court TV selects and summarizes a trial

for its “Cable in the Classroom” program, which aims to

encourage junior high and high school students to discuss

important legal and social issues and analyze the role of the

judicial system in settling disputes in society. Each weekend

Court TV’s programming includes six hours of Continuing

Legal Education (CLE) seminars from accredited CLE

providers. The network also produces “town meeting” public

affairs specials in selected cities several times cach year.

As is true of any commercial television network, Count TV's

financial success and, indee” its continued existence depend

on its ability to secure vic + ers for its programming. Court TV

earns its revenue from two sources, and both depend on the

number of viewers the network can attract. First, cable systems

pay fees for programming based on the number of subscribers

who have access to the programming. Second, advertisers pay

for time, and national advertising rates are strongly dependent

on the number of viewers a program attracts.

Court TV, a relatively new cable network al just over two

years old, is currently available to 14 million viewers.

Although Court TV reaches cable subscribers in 48 states, the

District of Columbia, and Puerto Rico, it has access to fewer

6

than one-fourth of the more than 60 million cable sets in the

United States.

Court TV gains access to viewers principally by securing

positions in the channel line-ups of the thousands of cable sys-

tems throughout the country. Securing channel access for Court

TV's programming involves in-person solicitation and nego-

tiation with cable system operators. Where competition is

intense because few channels are open to add new cable pro-

grammers, the process of seeking channel access typically

becomes more expensive and more protracted, often requiring

numerous meetings, detailed proposals, and intense negotiation

of terms. At the same time the likelihood of success is dimin-

ished, since many of the cable channels launched in the last

several years are competing for those few available channels.

B. The Must-Carry Provisions of the 1992 Cable Act

Congress passed the Cable Television Consumer Protection

and Competition Act of 1992, now codified at 47 U.S.C.A.

§§ 531 et seq., on October 5, 1992. The 1992 Act authorizes

extensive regulation of the cable industry by the Federal Com-

munications Commission (“FCC”). Sections 4 and 5 of the

1992 Act, 47 U.S.C.A. §§ 534 and 535, require cable system

operators, ON request, to carry the signals of certain local

broadcast stations.”

Section 4 requires cable system operators to carry, on

request, the signals of licensed commercial broadcast television

stations whose signals are received over the air in the same

. Must-carry rules were first formulated by the FCC in 1965. See

The D.C. Circuit Review—F ederal Communications Commission: Must.

Carry and the Continuing Search for a First Amendment Standard of

Review for Cable Regulation, 57 Geo. Wash. L. Rev. 1248, 1251 n.26

(1989). The FCC's must-carry rules were twice struck down by the D.C.

Circuit. See Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir.

1985), cert. denied, 476 U.S. 1169 (1986), and Century Communications

Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032

(1988).

television market as the cable system. A cable system operator

with 12 channels or fewer but at least 300 subscribers must

deliver the signals of at least three local broadcast stations. If

the cable system operator has more than 12 channels, it may be

required to set aside as many as one-third of its active, usable

channels. If the number of local broadcast stations does not fill

all of those channels, the operator must also carry one or two

“qualified” low power broadcast stations.

Under Section 5 of the 1992 Act, a cable system operaior

with 12 channels or fewer must carry the signal of one local

non-commercial educational broadcast station. Cable system

operators with more than 12 but fewer than 36 channels must

carry from one to three qualified non-commercial stations. A

cable system operator with more than 36 channels must carry

the signal of every local non-commercial educational broadcast

station that requests carriage, unless a station’s programming

substantially duplicates that of another station the cable system

already carries.

Both sections prohibit the cable system operator from accept-

ing or requesting payment from local broadcasters; both require

that the cable system operator carry the broadcaster's entire

programming schedule; and both give the broadcaster the

option of retaining its current channel position.

C. The Adverse Impact Of Must-Carry Rules On Court

TV’s Ability To Be Seen

1. Connecticut

Cablevision of Connecticut (“CVC”) and Cablevision of

Southern Connecticut (“CVSC”) are charter Court TV affili-

ates—both launched the network on its first day on the air in

1991 and both have expressed to Court TV their high degree of

satisfaction with subscribers’ response to Court TV's pro-

gramming. Together, the two systems serve approximatcly

183,300 subscribers in the area of Fairfield County, Con-

necticut.

8

Even before the 1992 “must-carry” rules were enacted, the

Systems’ limited channel capacity often made it necessary for

several satellite services to share one channel. Nonetheless,

CVC carried Court TV 24 hours a day (except for minimal

interruption for certain sports programs). CVSC carried Court

TV from 6 a.m. until 6 p.m. on Mondays through Fridays.

The 1992 must-carry provisions have severely limited the

viewable hours of Court TV on these cable systems. CVC has

been required to carry three local broadcast stations. Two of

these stations had previously shared one cable channel, but

under the 1992 Act the cable system was forced to dedicate a

full channel to each. It was also required to add a shopping

channel that leases its 6:00 p.m. to 9:00 p.m. time to others. As

a consequence, Court TV has gone from full-time Carriage with

minimal interruptions to sharing a channel with two sports pro-

grammers, with Court TV preempted for all live sports events.

CVSC was also forced to carry the shopping channel. As

a result, Court TV has been moved from a daytime sched-

ule that allowed subscribers to view more than 80 percent of

Court TV’s live trial coverage to the time slot from midnight to

11:30 a.m.

Since the first day of the new schedule viewers have com-

plained about interruptions in Court TV’s programming, about

the reduction in its air time, and about the quality of pro-

gramming on the must-carry channels. Nonetheless, even fur-

ther reductions may soon be required to accommodate

additional “local” broadcast stations that the systems will be

required to carry.’ Solely because of the must-carry rules, Court

TV risks losing its carriage entirely on one of the largest cable

Systems in the country.

3 o ”

One of these “local” stations is in New Jersey; two others are in

New York.

—

2. New Jersey

Approximately 230,000 subscribers in Northern New Jersey

are served by Suburban Cablevision, the tenth largest cable

system in the United States. In December 1991 Court TV sub-

mitted a formal proposal, the first step in attempting to seil its

programming to Suburban Cablevision. Six months and several

meetings later, Court TV submitted its second proposal.

After another three months had passed, Court TV was told

that it could not secure a slot in the basic tier, but might wina

position on a new tier the system was considering testing.

Negotiations on pricing stretched over approximately two

months, finally resulting in a deal letter. The test of the new tier

began, with Court TV on Channel 53. After two months, plans

for the new tier were put on hold, in large part because Sub-

urban was not sure it would have enough channel capacity for

all of the programming services in the test after “must-carry”

absorbed several channels.

Court TV then submitted a third proposal, this time seeking

a slot in the basic tier because at least two of the channels Sub-

urban had planned to use for the new tier had been lost to must-

carry. Court TV did not win a slot on Suburban’s basic tier.

Because of the must-carry requirements, the system had no

room for Court TV.

The network then identified an opportunity for partial car-

riage and is now carried from 6 a.m. to 8 p.m. on a channel

shared with another programmer. Subscribers cannot watch

many of Court TV’s popular evening programs, so its adver-

lising revenues are reduced. Court TV’s audience is further

reduced by the fact that it is now carried on Channel 96, a posi-

tion on the dial that is seldom reached by viewers browsing for

a viewing choice. An executive of Suburban wrote to Court TV

that he believed Suburban’s customers “would prefer to have

Court TV instead of the extremely marginal broadcast chan-

nels” the cable operator had been forced to add.

10

3. Illinois

Continental Cablevision provides cable programming ser-

vices to approximately 110,000 subscribers in the suburban

Chicago area. The Chicago area is a major television market

and one that should play a significant part in Court TV’s future

growth. After more than a year of intensive marketing effort,

and nearly three months after a corporate deal had been final-

ized, the system began expressing concems about the impact of

the must-carry rules. A few months later, Court TV was told

that it still had a good chance if the system were not hit hard

with loss of channel capacity. Ultimately, however, Court TV

failed to secure a channel slot because the cable system had to

award its last spaces to four local broadcasters that had

demanded carriage.

4. California

For more than a year Court TV worked closely with execu-

lives of Crown Cable, a cable system serving approximatcly

150,000 subscribers in Riverside, Pasadena, and Alhambra,

California. Court TV hosted and produced a televised town

meeting with the cable system’s owner. Ever since Crown

Cable carried Court TV’s programming of the Reginald Denny

trial on its public access channels, subscribers have contacted

both Court TV and Crown Cable to request continued carriage.

Crown Cable said that it wanted to carry Court TV and would

do so were it not for the 1992 Act’s mandatory carriage pro-

visions, but the 1992 must-carry rules forced Crown Cable to

add three local broadcast channels, which filled all of its excess

Capacity.

5. Summary

The examples described above are just that. They are not

special cases; nor do they involve unusual circumstances. They

illustrate the pervasiveness of the influence of must-carry rules

on Court TV’s day-to-day relations with cable system opera-

tors. The subject of must-carry rules is raised almost immedi-

1]

ately in every conversation with every cable operator. The

must-carry rules consistently serve as an impediment to access

for Court TV’s programming, blocking access to a large per-

centage of the available slots on nearly all cable systems.

As a result, Court TV is seen less: viewers who prefer Court

TV's programming over that provided by the local broadcast

stations are disabled from making that choice; and cable sys-

tem operators who would prefer to offer Court TV's pro-

gramming are not permitted to make that editorial judgment.

The impact of all this is contrary to the most basic First

Amendment notions. Court TV and other cable programmers

are impermissibly deprived of their opportunity to be heard

when they are denied channel access to accommodate the local

broadcasters favored by Congress. Judge Williams's conciusion

in his dissenting opinion below is unanswerable: “Given the

finite number of cable channels, replacement of the cable-

caster’s choice of programs with those of local broadcasters

suppresses the alternative programs as completely as if

Congress had ordered them shutdown. . . .’ ” Turner Broad-

casting System, Inc. v. FCC, 819 F. Supp. 32, 59 (D. D.C.),

prob. juris. noted, 1148S. Ct. 38 (1993) (Williams, J., dissent-

ing) (footnote omitted). Such a result cannot be reconciled with

the First Amendment.

12

—

CONCLUSION

The decision of the United States District Court for the Dis-

trict of Columbia should be reversed.

Dated: November 9, 1993

Respectfully submitted,

FLOYD ABRAMS

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amicus Curiae

Of Counsel:

JANET A. BEER

CAHILL GORDON & REINDEL

(a partnership including

a professional corporation)