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

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No. 93-44

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

TURNER BROADCASTING SYSTEM, INC.. ef a/..

Appellants,

FEDERAL COMMUNICATIONS COMMISSION, et ai...

Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF AMICUS CURIAE OF THE

CALIFORNIA CABLE TELEVISION ASSOCIATION

IN SUPPORT OF APPELLANTS

SPENCER R, KAITZ FRANK W. LLoyp, III *

President MINTZ, LEVIN, COHN

JEFFREY SINSHEIMER FERRIS, GLOVSKY &

Director of Regulatory Porro, P.C.

Affairs 701 Pennsylvania Ave., N.W.

CALIFORNIA CABLE Suite 900

TELEVISION ASSOCIATION Washington, D.C. 20004

4341 Piedmont Avenue (202) 431-7300

P.O. Box 11080 Counsel for Amicus Curiae

Oakland, California 94611 California Cable Television

(510) 428-2225 Association

November 9, 1993 * Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS CURIAE. 1

SUMMARY OF ARGUMENT ....................... beans 3

pt tS | 4 re ariel a 3

I. THE MUST CARRY RULES IMPINGE UPON

THE CURRENTLY ROBUST EXERCISE OF

EDITORIAL DISCRETION BY CABLE

TELEVISION OPERATORS ................ 3

A. Specific First Amendment Harm Has Been

Suffered By California Cable Television

SRR SSI are ie roa ee 4

B. Other California Cable Television Operators

Make Editorial Programming Selections

That Are Inhibited By the Must Carry

I iit ae a. deep idladeetdbinaaassenainarsbennaeinc eles cies R

C. The Must Carry Rules Also Hamper Direct

Communication Between Cable Television

Operators And Their Subscribers... 9

Il. CABLE TELEVISION SPEAKERS ARE EN-

TITLED TO THE HIGHEST FIRST AMEND-

MENT PROTECTION COEXTENSIVE WITH

THAT ACCORDED THE PRINT PRESS... 12

Ill. THE GOVERNMENT CANNOT REDRESS A

PERCEPTION OF MARKET IMPERFEC-

TION BY COMPELLING A CABLE TELEVI-

SION OPERATOR TO ALTER ITS CABLE

TELEVISION CHANNELS INCONSISTENT

WITH THE MANNER IT WOULD OTHER-

WISE EXERCISE ITS EDITORIAL RIGNTS . 16

IV. THE MUST-CARRY PROVISIONS ARE NOT

PRECISELY DRAWN TO FURTHER ANY

GOVERNMENTAL INTEREST .............. Sasanhaes 19

I cumsualuern, 22

il

TABLE OF AUTHORITIES

CASES

Page

Arkansas Writers’ Project, Inc. v. Ragland, 481

US. 281 (1087) .......-.ccccccsccccccesscssmeeses ae 19

Associated Press v. United States, 326 U.S. 1

¢\ |.) ONDECEE EE 16

Bantam Pooks, Ine. v. Sullivan, 372 U.S. 58

(1963) . covcesscessénes sannceen Uepdalsenaeeenelaaenn 9

Buckley v. Valeo, 424 U Ss. 1 (1976) easkeetis ae 19

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

292 (D.C. Cir. 1987), cert. denied, 486 U.S. 1082

CTOBB) ............0..0:.cccnnesesseeceercenseeceenesneeeen anna 4

Century Federal, Inc. v. City of Palo Alto, 648

F. Supp. 1465 (N.D. Cal. 1986) 0. 13, 14, 15

Certury Federal, Inc. v. City of Palo Alto, 710 F.

Supp. 1552 (N.D. Cal. 1987) udsaveauaaa ae

City of Los Angeles v. Preferred Communications,

Ine., 476 U.S. 488 (1988) .........0--...ccccccecceeeees ; ae

Community Cablevision Co. v. FCC, No. CV 93-

3104 R (C.D. Cal., pending) ....................-00.. 3,7

Consolidated Edison Co, v. Public Service Commis-

stom, 447 U.S. BO (1GBB) cccccccceasenee 20

FCC +. Midwest Video rag = 440 U.S. 689 (1979) . ; 3

Group W. Cable, Inc. v. City of Santa Cruz, 669

F. Supp. 954 (N.D. Cal. i: | ee. Bove Hn 15

Herts Society for Krishna Consciousness,

Inc, v. Lee, 112 8. Ct. 2701 (Kennedy, J. con-

see nvcocoosevssesees esgorseneseuuiueseennnseinniannnnnnennnEEE 16

Joseph PBurstun, Ine. v. Wilson, 348 US. 495

Gi | OORT 14

Lampvrecht v. FCC, 9: 58 F.2d 382 (D. C. Cir. 1992). 20

Landmark Communications, Ine. v. Virginia, 435

UG. GBD (2OTB) onccccccccccvecececsccocssseuene 20

Leathers v. Medlock, 499 U.S. —~—, 111 S. Ct.

1438 (1991)

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

241 (1974) roe saesneeste-sceseieueiennnaan

Miller v. California, 413 U.S. 15 (1978)

Minneapolis Star & Tribune Co. +. Minnesota

Commissioner of Revenue, 460 U.S. 575 (1983)

Pein senneesaig ae ae

...12, 13, 16

20

_—

iii

TABLE OF AUTHORITIES—Continued

Pacitie Gas & Electrie Co. v. Public Utilities

Comm'n, A475 U.S. 1 (1986)

Paris Adult Theatre I v. Slaton, 418 U.S. 49

Fee ecevueaseerecececasoose.

Preferred Communications, Inc. v. City of Los

Angeles, T54 F.2d 1396 (9th Cir. 1985), aff'd

on narrower grounds, A476 U.S. 488 (1986)

Preferred Communications, Inc. v. City of Los

Angeles, California, and Department of Water

and Power, Nos. 91-55625, 91-55665, (9th Cir.,

pending) |

Quincy Cable TV, Ine. ’, . FCC, 768 F.2d 1 134 (D.C,

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

Riley v. National Federation of the Blind of North

Carolina, Ine., 487 US. 721 (1988)

Sable Communications of California, Inc. v. FCC,

492 U.S. 115 (1989) ee a

Turner Proadcasting System, Ine. v. FCC, 112

S. Ct. 1806 (1993) |

Turner Broadcasting Sustem, Ine. v. FCC, 819 F.

Supp. 32 (D.D.C, 1993)

Viacom International, Inc. v. FCC, No. C-93-1984

(N.D. Cal., pending)

Wooley ». Maynard, 130 US. 705 (1977)

STATUTES

47 U.S.C. § 534 and 535 ag

47 U.S.C. § G15(b) (1) ..............................

Cable Television Consumer Protection and Com-

petition Act of 1992 (“The 1992 Cable Act”),

Pub. L. No, 102-385, 106 Stat. 1160

LEGISLATIVE HISTORY

H.R. No. 628, 102 Cong. 2d Sess. 52 (1992)

S. Rep. No. 92, 102 Cong., 1st Sess. 48 (1991)

OTHER

MM Docket No, 89-600, FCC 90-276

Page

18,

4,

12, 13, 16, 17, 18, 19,

19

> ro

Li)

21

21

IN THE

Suprenwv Court of the United States

OcTOBER TERM, 1993

No. 93-44

TURNER BROADCASTING SYSTEM, INC., ef al.,

‘ Appellants,

FrDERAL COMMUNICATIONS COMMISSION, ef al.,

Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF AMICUS CURIAE OF THE

CALIFORNIA CABLE TELEVISION ASSOCIATION

IN SUPPORT OF APPELLANTS

STATEMENT OF INTEREST OF AMICUS CURIAE

The California Cable Television Association (“CCTA” )

submits this brief as amicus curiae in support of ap-

pellants.’

CCTA is a trade association representing cable tele-

vision system operators that provide cable television service

to over five million California residents. CCTA brings

information to the Court concerning the extent of First

Amendment activities engaged in by cable television

' Consistent with S. Ct. R. 37.3, all parties have given CCTA

their consent to the filing of this brief.

2

operators and the impact of the must carry law on cable

television systems in California. This amicus brief will illus-

trate that resolution of the issues before this Court in this

case will affect the ability of California cable television

operators and other cable television operators to engage

in conduct protected by the First Amendment.

CCTA is a central clearinghouse for information on

programming provided by its member cable television

operators, much of it relating to the core concern of the

First Amendment. This programming is threatened by the

must carry provisions * of the Cable Television Consumer

Protection and Competition Act of 1992 (“The 1992

Cable Act”).” In addressing the issues before it, the

Court should give substantial weight to the robust ex-

pressive activity that is undertaken by the cable television

medium in California.

Since 1958. CCTA has participated in proceedings

before a wide range of administrative, legislative, and

judicial bodies on behalf of the cable television industry

in California and its individual members. CCTA has a

wide range of experience advocating the First Amend-

ment rights of cable television operators before this Court *

and before the Ninth Circuit Court of Appeals.” Most

recently and most in point. CCTA filed amicus briefs

when certain of its individual cable television system

members sought to enjoin enforcement of the must carry

247 U.S.C. § 534 and 535.

4 Pub. L. No. 102-385, 106 Stat. 1460.

4 See amicus brief filed by CCTA in Leathers v. Medlock, 499

Us. ——, 111 S. Ct. 1438 (1991).

°CCTA filed amicus briefs in Preferred Communications, Inc. v.

City of Los Angeles California, and Department of Water and

Power, T54 F.2d 1396 (1985); and Preferred Communications, Inc.

ve. Citu of Los Angeles, California, and Department of Water and

Power, Nos. 91-55625, 91-55665, argued on June &, 1993.

tyd

provisions of the Cable Act in pending cases in the

Northern © and Central‘ Districts of California.

SUMMARY OF ARGUMENT

This case presents the fundamental question of whether

government can exercise control over, and restrain the

rights of, cable television operators who are important

sources of news, information and entertainment to their

subscribers, to promote the relative power of the voices

of a competing class of speakers—local broadcast tele-

vision stations—based upon a congressional perception

that the broadcast industry is in economic decline.

In this brief CCTA argues that. based upon the facts

presented below as to the First Amendment protected

activities of cable television operators, this Court should

hold the mandates of the must carry restrictions uncon-

stitutional. As active and robust First Amendment speak-

ers, cable television operators are entitled to the highest

degree of First Amendment protection.

ARGUMENT

I. THE MUST CARRY RULES IMPINGE UPON THE

CURRENTLY ROBUST EXERCISE OF EDITORIAL

DISCRETION BY CABLE TELEVISION OPERA-

TORS

While the Supreme Court has not yet delineated the

precise limits of the First Amendment protections extended

to cable television, it has observed that cable television

operators exercise “a significant amount of editorial dis-

cretion regarding what their programming will include.” °

In 1991 the Court stated:

® Viacom International, Inc. v. FCC, No. C-93-1984 EFL (N.D.

Cal.).

7™Community Cablevision Co. v. FCC, No. CV 98-3104 R (C.D.

Cal.).

‘City of Los Angeles v. Preferred Communications, Inc., 476

U.S. 488, 494, quoting FCC v. Midwest Video Corp., 440 U.S. 689,

707 (1979).

4

Cable television provides to its subscribers news,

information, and entertainment. It is engaged in

“speech” under the First Amendment, and is, in much

of its operation, part of the “press.” °

For seven years, from the 1985 D.C. Circuit decision

striking down the FCC’s former local broadcast signal

“must carry” rules until the enactment of the 1992 Cable

Act, these editorial decisions were solely those of the cable

television operator."

The importance of the editorial discretion exercised by

cable television operators is amply illustrated in this case

by the deleterious results that implementation of those

provisions have had in California, and the public outcry

in response.

A. Specific First Amendment Harm Has Been Suf-

fered By California Cable Television

The must carry obligations of cable television systems

located in large television markets such as those in Cali-

fornia are particularly onerous. Two cable television oper-

ators in such California markets have challenged the must

carry rules as applied to them.

In the San Francisco Bay Area the must carry rules

forced Viacom International, Inc. (“Viacom”) to drop

several cable television programming networks from a

number of its cable television systems in favor of broad-

cast signals." Viacom requested an injunction of the must

* Leathers v. Medlock, 499 U.S. at ——., 111 S. Ct. at 1442

(1991).

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

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

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

1032 (1988).

1! Here, as in other contexts, a right may be valued by the con-

sequence of its loss. The attached copy of a June 2, 1993 San

Francisco Examiner article describes some of the public outery

over Viacom's planned channel changes as a result of must carry.

See Appendix attached hereto.

5

carry provisions for its systems in the East Bay, Marin

County, San Francisco, Petaluma, Pinole, and American

Canyon.

At the time of implementatson of the must carry rules,

Viacom was forced to add four stations in the East Bay

Area: Concord and San Jose stations with primarily reli-

gious formats, a San Francisco Asian language station,

and a San Jose Spanish language station. To make room

for those broadcast station additions, Viacom was forced

to delete three non-broadcast channels it had been carry-

ing: a channel that provided local religious programming.

a channel that carried CNBC business news as well as the

Comedy Central, and a channel called Sneak Preview.

which promoted Viacom's pay-per-view programming.

In Marin County, Viacom was forced to add three sta-

tions: a San Francisco Asian language station, a San Jose

Spanish language station, and a non-commercial San

Mateo station mixing PBS and instructional program-

ming. To make room for these additions, Viacom was

forced to drop Bravo, which is a cultural arts cable tele-

vision network, the evening programming of C-SPAN If,

portions of a preview guide service, and a PBS station

from San Jose that did not have must carry rights.

In San Francisco, Viacom had to add three stations:

Concord and San Jose stations with primarily religious

formats and a San Mateo non-commercial station offering

a mix of PBS and instructional programming. To make

room for these additions, Viacom was forced to limit

C-SPAN I solely to live coverage of the U.S. House of

Representatives, eliminating all its other public affairs

programming, and pair it with the Playboy Channel.

move the American Disabilities Channel and pair it with

Bravo (which resulted in reduction of Bravo program-

ming from full to part time), and delete portions of Sneak

Preview programming and one-and-one-half pay-per-view

channels.

6

This June, in granting the initial request by Viacom

for a temporary restraining order and enjoining the FCC

and the United States from implementing or enforcing

the must carry provisions against Viacom, Federal Dis-

trict Judge Eugene Lynch recognized that the must carry

rules interfere with cable television operaiors’ editorial

discretion and elevate the speech of local broadcast sta-

tions over cable television speakers. This statutory scheme

implicates constitutional issues that rest at the heart of

the First Amendment."”

The must carry rules have had an equally invasive

effect on the First Amendment rights of Community Cable.

vision Company, doing business as Dimension Cable

Services (“Dimension”), in Orange County in Southern

California."* The Los Angeles Area of Dominant Influ-

ence (“ADI”) contains 21 commercial broadcast stations

and five non-commercial educational stations.’ Systems

such as Dimension, with 38 channels just barely over the

37-channel threshold that the 1992 Cable Act sets for

requiring carriage of a// nonduplicative noncommercial

Stations that request carriage.” have been particularly in-

hibited by the must carry rules. The rules required Di-

mension not only to carry five non-commercial television

stations, but also to set aside 13 channels for the carriage

of qualified commercial stations. The total number of

'* See Temporary Restraining Order issued by Judge Lynch,

dated June 1, 1993 in Viacom International Inc. v. FCC, No. C-93-

1984 EFL (N.D. Cal.) at 4 (“[ilt is beyond all doubt [that

Viacom’s claims] raise serious First Amendment questions”): see

also at 6 (“there is simply no denying that Viacom’s suit raises

serious First Amendment questions”). This case was eventually

decided on res judicata grounds. See Order, August 26, 1993.

'S See Id., Memorandum of Points and Authorities in Support of

Ex Parte Application for Temporary Restraining Order and Order

to Show Cause Re: Preliminary Injunction, filed on May 28, 1993.

141992 Broadcasting Yearbook.

547 U.S.C. § 615(b) (1),

5

stations Dimension was thus required to carry is 18, or

nearly 50 percent of its channel capacity. before Dimen-

sion had the opportunity to exercise any editorial discre-

tion to decide how best to serve the needs and desires of

its subscribers.

In its attempt to overthrow the must carry rules as

applied to Dimension Cable, Dimension alleged that the

must carry provisions required it to carry four additional

commercial broadcast stations which it did not wish to

carry. The must carry provisions also required that Di-

mension provide full-time carriage to one other commer-

cial broadcaster that it currently carried on a part-time

basis. Dimension’s entire channel capacity was already

being used for other programming services desired by its

customers: thus, the must carry provision forced Dimen-

sion to reduce to a part-time basis its carriage of its own

locally originated programming. C-SPAN, VH-I and the

Weather Channel and required it to displace The Movie

Channel and Continuous Hits I, a pay-per-view service,

from its channel lineup."

Dimension, Viacom, and other similarly situated major

market California cable television operators are deprived

of even more than one-half of their capacity by govern-

mental flat when their leased access. public, educational.

and governmental access and must carry requirements

are aggregated. Far from being a precisely balanced

legislative approach to a perceived problem. as applied

to cable television operators in major California markets.

the must carry rules sweep far too broadly. Thev inhibit

cable television operators from exercising editorial dis-

cretion over their channel lineups consistent with their

'® The Central District in the Dimension Cable case, like the

Northern District in the Viacom case, never reached the First

Amendment issues since the motion for preliminary injunction here

was also denied on the basis of res judicata. Community Cable-

vision Co. v. FCC, No. CV 93-3104 R (C.D. Cal.), September 23,

1993.

8

own status as First Amendment-protected speakers. The

must carry rules also shut out many other diverse speak-

ers—cable television programming networks and _ local

origination producers—who would otherwise gain access

to these channels of communication.

B. Other California Cable Television Operators Make

Editorial Programming Selections That Are In-

hibited By the Must Carry Rules

Absent the must carry provisions challenged here. other

California cable television system operators also make

editorial choices among a wide variety of broadcast sig-

nals and satellite-delivered networks designed specifically

for cable television system use. They select local broad-

cast signals, choosing among the three major network

affiliates, Fox affiliates and other commercial independ-

ents, and public television stations in the local area. which

in most California television markets comprise over a

dozen broadcasters in total. California cable television

operators also decide whether to import broadcast signals

that cannot be received over the air with an ordinary

home antenna. These signals. such as “superstations”

WTBS, Atlanta. or WGN, Chicago, are brought into the

cable television operator’s service area either by micro-

wave or by satellite.

California cable television operators also select from

among more than 100 satellite program networks created

specifically for the cable television industry. Nearly all

of the over five million California cable television sub-

scribers have access to twenty-four hour news from CNN

and coverage of the United States Senate and House of

Representatives from C-SPAN as part of their basic pro-

gramming.

A cable television system operator's selection of pro-

gramming involves a classic editorial function protected

by the First Amendment. The fact that the expression

may in some cases be originated by another party does

9

not remove the First Amendment protection that these

editorial decisions usually enjoy. The Los Angeles Times

or San Francisco Chronicle is not entitled to less First

Amendment protection when it publishes an article as

reported by the Associated Press or the opinion of a

syndicated columnist. A broadcaster is not less protected

when it selects network or syndicated programming."

Nor is a book or magazine seller entitled to any less

protection in deciding what publications to stock and how

to display them. Seldom do two cable television systems

in California select precisely the same programs to offer

to the public. And. even if they did, it would be irrele-

vant to a First Amendment analysis of their speech rights.

C. The Must Carry Rules Also Hamper Direct Com-

munication Between Cable Television Operators

And Their Subscribers

There are a number of state and regional networks

unique to California. California cable television system

Operators also produce their own local programming.

Much of this programming concerns public affairs. In

deed, sometimes cable television is the only source of

such local information and opinion in California cities.

The must carry rules thus not only create a chilling effect

on highly valued programming, but also impermissively

place the government in the position of handicapping

competition in the marketplace of ideas.

Many California cable television operators. in con-

junction with local broadcasters or newspapers, provide

six minutes of local news and public affairs “Local Edi-

tion” inserts each half-hour to the national C™N Head

line News cable television service. This “Local Fdition”

service reaches 1.4 million California cable television

subscribers. In addition to these services, in some Cali-

7M ler v. California, 413 U.S. 15 (1973); Paris Adult Theatre I

vr. Slaton, 413 U.S. 49 (1973): Bantam Books, Inc. v. Sullivan, 372

U.S. 58 (1963).

10

fornia communities. local origination programs produced

by cable television operators are highly developed, with

daily newscasts that rival those of local broadcasters, and

with depth of coverage that goes well beyond a “Metro”

section of the local newspaper. Other cable television

operators present weekly public affairs cablecasts that

feature interviews with local officials, community leaders

and candidates for local elections. Local programs also

include live and tape delav cablecasts of city council

meetings and local community events. such as sporting

events and parades. As Orange County continues to de-

velop a separate identity from Los Angeles. for example.

cable television local origination has become the most

logical way to serve the television news needs of the

community.

In almost six years. Centurv Cable’s Los Angeles svs-

tem has produced almost 500 locally-originated public

affairs programs distributed on a regular basis to thirty

Los Angeles area cable television companies, with wider

distribution when events warranted. Century's regular

“Week in Review” program features politicians, press.

and pundits discussing issues of community concern. Issue

specials spotlight particular questions of public concern.

including issues concerning the Cable Act and its imp!e-

mentation. Personality profiles highlight individuals in

politics, business, and etitertainment. Election specials

have included candidate profiles. debates. press confer-

ences, interviews. and critiques of political commercials.

Century distributed statewide the onlv video debate be-

tween the candidates for state treasurer to all California

cable television systems.

Viacom 6, the local origination channel of Viacom of

San Francisco, emplovs twelve persons who produce local

public affairs programming and facilitate public access

programming. Viacom 6 has three regular weekly half

hour shows: “Viewpoint.” an interview show that features

public officials: “City Desk.” a live round table discussion

that features journalists discussing San Francisco news

and events; and “Helping Hands,” a public health show

that features a particular emphasis on AIDS. Monthly

shows and specials on the arts, politics, neighborhood

viewpoints, and earthquake safety are also produced.

California cable television operators also carry unique

regional news networks. In September 1990, a regional

cable television news network, Orange County News-

Channel. began 24-hour televised local news, sports, pub-

lic affairs and cultural events coverage of Orange County,

California, where most over-the-air news comes from the

television stations that focus on neighboring Los Angeles

County.'" NewsChannel is being operated by Freedom

Newspaper Corporation, which owns the Orange County

Reevister, a local newspaper, and newspaper staff are help-

ing to write and produce the programming for this channel.

Moreover, California cable television operators run the

California Channel. The California Channel transmits

live and taped coverage of the California Legislature, its

committees and subcommittees almost three million Cali-

fornia cable television subscribers. In many cases, the

ability of cable television operators—including — those

serving on the California Channel's Board of Directors—

to provide this service to subscribers depends upon having

channel capacity. which is depleted as a result of the

must carry rules.

Finally, California cable television operators gain the

ability to communicate with their subscribers by retain-

ing rights to local advertising time on cable television

networks. Much of this time is dedicated to commercial

speech. However, cable television operators also use this

time to advocate with their subscribers on issues affecting

operators before franchise authorities, the State, and Con-

gress. Cable television operators have used their time to

1s NewsChannel is currently distributed to almost all of the

500.000 cable television subscribers in Orange County.

12

urge subscribers to contact city council members to op-

pose ‘ocal utility user taxes. They have used this time

to urge subscribers to contact legislators and the Gov-

ernor to oppose statewide cable television taxes. They

have used this time to urge subscribers to petition Con-

gress in opposition to the Cable Act.

This is the most highly protected form of political

speech. By limiting the ability of cable television oper-

ators to control their channel lineups, the must carry pro-

visions inhibit cable television operators from exercising

their right to communicate directly with their subscribers.

Il. CABLE TELEVISION SPEAKERS ARE ENTITLED

TO THE HIGHEST FIRST AMENDMENT PROTEC-

TION COEXTENSIVE WITH THAT ACCORDED

THE PRINT PRESS

Thus, California cable television operators are full-

fledged electronic publishers. possessed of all the editorial

prerogatives of any of the newspaper publishers with

whom they may co-produce channels, and are entitled to

co-extensive First Amendment protections. Because the in-

trusive regulatory scheme in the must carry provisions

could never be upheld in the context of the print press,

they must be struck down.”

'% See Miami Herald Publishing Co. v. Tornillo, 418 U.S, 241, 258

(1974); Turner Broadcasting System, Ine. v. FCC, 113 S. Ct. 1806,

1807, 1808 (1993) (Rehyquist, J., in chambers) (“Congress plainiy

could not impose the must-carry provisions on privately owned

newspapers”); Quincey Cable TV, Inc. v. FCC, 768 F.2d 1434, 1453

(D.C. Cir. 1985); cert. denied, 476 U.S. 1169 (1986) (“Quincey”)

(“if Miami Herald supplies the appropriate mode of First Amend-

ment analysis, our inquiry would be at an end”); Preferred Com-

munications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1401 n.1

(9th Cir. 1985), aff'd on narrower grounds, 476 U.S. 488 (1986)

(“lilmposing access requirements on the press would no doubt be

invalid”); Century Federal, Inc. v. City of Palo Alto, 710 F. Supp.

1552, 1554 (N.D. Cal. 1987) (“Century Federal IT’) (Clearly, if

. access requirements were applied to the traditional press, such

as newspapers, they would violate the first amendment.” ).

13

CCTA believes that this Court must declare the must

carry provisions to be invalid under the prevailing prin-

ciples of First Amendment law applicable to the juris-

diction, notwithstanding the divided decision of the three-

judge district court below in Turner Broadcasting System,

Inc. v. FCC.”

The level of First Amendment protection to be ac-

corded cable television is a critical legal issue with

far reaching ramifications not only to cable, but also to

the entire communications industry, especially as the

technological revolution in that industry continues to un-

fold. Cable television has become the electronic embodi-

ment of the print press: an important source of news,

opinion, and other information to millions of people

throughout this country.”'

The development of the newspaper industry was due tn

part to a historical pattern of fu'l and robust First Amend-

ment protection—a protection that does not tolerate any

interference with the exercise of editorial discretion.”

*” 819 F. Supp. 32 (D.D.C. 1993).

*! As stated by Judge Lynch in Century Federal, Inc. v. City of

Palo Alto, G18 F. Supp. 1465, 1474 (N.D. Cal. 1986) (Century

Federal 1), “\i)n an age when most people receive their daily news

via the television, that medium has established a role as critical to

the free flow of ideas and information in this society as any of

the more traditional media.” See also Leathers v. Medlock, 111

S. Ct. at 1442 (1991) (“lelable television provides to its subscribers

news, information, and entertainment. It is engaged in ‘speech’

under the First Amendment, and is, in much of its operation, part

of the ‘press’"). See also City of Los Angeles v. Preferred Com-

munications, Inc., 476 U.S, 488, 494 (1986) (“through original

programming or by exercising editorial discretion over which sta-

tions or programs to include in its repertoire, respondent seeks to

communicate messages on a wide variety of topics and in a wide

variety of formats”).

2 See Tornillo, 118 US. at 258 (invalidating Florida statute re-

quiring right of reply in newspapers because it impairs editorial

functions}.

14

Like the editorial functions of the print editors protected

by the Supreme Court in Tornillo, cable television oper-

ators create, gather, package and distribute news, infor-

mation and entertainment to their subscribers.“” Given the

similarities between functions exercised by the print edi-

tors and cable television operators, as well as the role of

cable television as the electronic press of the modern era,

cable television operators are entitled to the same First

Amendment protection as that accorded the print media.

Rights of cable television operators to full First Amend-

ment protection is not merely the product of analogizing

its editorial functions with those of the print press. The

Starting point in any constitutional analysis of the regula-

tion of any medium is that the particular medium at issue

is entitled to the same protection as that afforded the print

press. Some rationale must then justify reducing that

medium’s First Amendment protection. This is the anal-

ysis applied by California Federal District Judge Lynch

in Century Federal 1-* Confronted with the issue of

whether cable television was more akin to broadcast tele-

vision or the print press, Judge Lynch noted that protec-

tion less than that accorded the print press “was the

exception to the rule that must be justified by a particular

difference.” ~~ Judge Lynch went on to state: “Conse-

2° See Century Federal 11, 710 F. Supp. at 1555 (“this Court

believes [the function of newspaper editors! is closely analogous

to the editorial functions of a CTV operator”).

“4 Judge Lynch's opinion in Century Federal I remarked upon

how the Supreme Court, in Joseph Burstyn, Ine. v. Wilson, 343

U.S. 495 (1952), had faced the question as to whether a lesser

First Amendment standard applied to films. There the Supreme

Court held that “'t!here is no justification in this case for making

an exception” to the rule that “the basic principles of freedom of

speech and the press, like the First Amendment's command, do not

vary.” Century Federal 1, 648 F. Supp. at 1470 citing Burstyn,

343 U.S. at 508.

*5 Century Federal 1, 618 F. Supp. at 1470.

15

quently, in developing the first amendment standard to be

applied .. . the question becomes whether there are any

differences in the characteristics of the CTV medium that

justify a lesser standard of protection for it... .” After

considering a number of rationales submitted as justifying

reduced protection for cable, Judge Lynch concluded, as

a matter of law on the record before him, that

[alithough the fact that cable television places a

heavier burden on the public domain than more

traditional forms of the media may justify some gov-

ernmental reguiations of that burden .. . there are

[not] any other differences attributable to cable tele-

vision that can justify a degree of first amendment

protection similar to that applied to the broadcast

medium.

This case calls for an identical analysis. And, like the

conclusion reached in Century Federal I, there is no

rationale here that can justify relegating cable television

to a reduced standard of First Amendment protection.

Because there is no rationale to justify reducing the

First Amendment protection of cable television opera-

tors.” this Court must conclude that cable television is

entitled to First Amendment protection coextensive with

that of the print press. And, since the must carry provi-

sions could not be applied to the print press, they must

be struck down.

“"Id.; see also Group W. Cable, Ine. rv. City of Santa Cruz, 669

F. Supp. 954, 961 (N.D. Cal. 1987) (“the starting point for the

Court’s analysis is that unless cable television differs in some mate-

rial respect from the print media, the First Amendment standards

that apply to newspapers apply with equal force to cable”).

*? Century Federal 1, 648 F. Supp. at 1475.

** Because of the nature of the must carry provisions, CCTA can-

not conceive of a manner in which any other possible justification

for lower First Amendment scrutiny (e¢.g., Economie or Physical

Searcity, Use of Public Rights of Way, Forum Analysis or Sub-

sidy Law) might apply.

16

Ht. THE GOVERNMENT CANNOT REDRESS A PER-

CEPTION OF MARKET IMPERFECTION BY COM-

PELLING A CABLE TELEVISION OPERATOR TO

ALTER ITS CABLE TELEVISION CHANNELS IN-

CONSISTENT WITHTHE MANNER IT WOULD

OTHERWISE EXERCISE ITS EDITORIAL RIGHTS

The must carry provisions are not mere economic reg-

ulation subject to a deferential standard of judicial scru-

tiny like that applied in Associated Press v. United

States.~

The majority's opinion in Turner turns on its finding

that Congress intended “to restore competitive balance

and assure a functional market in the distribution of

video signals.” and terming the must carry provisions as

“essentially .. . economic regulation,” the majority upheld

the must carry provisions.” But Teornillo instructs that

government cannot redress a perception of market im-

perfection by compelling speakers to alter the package of

information that they would otherwise voluntarily

disseminate.”

In addition. the majority’s conclusion that the must

carry provisions are mere “economic regulation” derives

from its flawed signals with a commercial commodity

*¥ 326 U.S. 1 (1945).

“° Turner, 819 F. Supp. at 41.

' Taken to its ends, with this analysis, under the guise of

redressing “monopoly” conditions, as determined solely at the exer-

cise of its diseretion, government could require newspapers to

devote substantial portions of their publication to local columnists

or movie theaters to run locally produced movies two days per week.

The First Amendment cannot tolerate such behavior. It is a shield

that protects against government, not a sword to be wielded at

the government's whim. Torn//io, 118 US. at 254: see aleo Inter-

national Sue'y for Krishna Consciousness, Ine. «. Lee, 112 8. Ct.

2701, 2716 (Kennedy, J. concurring).

17

market.” But the must carry provisions are not “com-

modity regulation” and do not regulate aspects of the

video signal that cable television operators use (¢.g.,

by setting standards for signal strength or quality).

Rather, these provisions force operators to carry local

broadcast stations and provide that message to subscrib-

ers. Thus, these provisions are more akin to regulation

that dictates to a theater owner whose movies to place

inside its movie projector or that tells a newspaper owner

whose columns to place inside its printing press. The

Turner majority’s effort to divorce cable’s message from

the medium fails, and, as the majority opinion itself

acknowledges, “video signals have no other function than

to convey information.” ”

In contrast to the Turner majority's analysis, there is a

significant body of precedent that requires application of

strict scrutiny to the must carry provisions.

First, the must carry provisions are content-based.

They directly usurp a cable television operator’s editorial

discretion to select programming on a broadcaster versus

broadcast and broadcasters’ versus cable television pro-

grammer basis, and do so, as a result of Congress’

judgment about the content of programming provided by

“local” broadcast stations. As Circuit Judge Williams

noted in his dissent in Turner, the must carry provisions

provide mandatory access to a special class of speakers—

local commercial and noncommercial television stations—

%2 According to the majority’s opinion, the fact that cable speakers

use video signals as their means of communicating “speech” is “of

no particular significance” because similar arguments could be

made for commodities like printing presses or movie projectors

commodities subject to regulation without impinging upon -the

First Amendment rights of those who use them. Turner, 819 F.

Supp. at 40.

33 Jd.

18

chosen by Congress as a result of an explicitly content-

related finding.”

Second, the must carry provisions compel speech by

overriding a cable television operator's editorial discre-

tion. That is constitutionally suspect under the First

Amendment and requires strict scrutiny.”

Third, the must carry provisions subjugate the speech

rights of cable television operators to their direct competi-

tors—broadcast television—based on a perception that

the speech of the latter requires governmental assistance.

By so providing, Congress has contravened a core prin-

ciple of the First Amendment.”

“Jd. at 58 (Williams, J., dissenting) (citing 47 U.S.C. § 532

(a)(1l)).

* In dissent, Circuit Judge Williams agreed that strict scrutiny

applied because the must carry provisions infringed upon cable

operators’ editorial discretion to select programming. Z/d. at 59.

See Riley v. National Fed'’n of the Blind of North Carolina, Ine.,

487 U.S. 781, 795(1988) (“{m/andating speech that a speaker would

not otherwise make necessarily alters the content of the speech”

and is “content-based”). In Riley, the Court expressly stated that

“\tihe First Amendment mandates that we presume the speakers,

not the government, know best what they want to say and how to

say it,” 487 U.S. at 790-91, and that any statute “regulating how a

speaker may speak” directly affects that speech. Jd. at 790 n.5.

Riley thus stands for a salient principle: government “even with

the purest of motives, may not substitute its judgment as to how

best to speak for that of speakers.” Jd. at 791. See also Pacific

Gas & Elec. Co. v. Publie Utils. Comm'n, A475 U.S. 1, 9 (1986)

(plurality opinion) (“compelled access -; both penalizes the ex-

pression of particular points of view and forces speakers to alter

their speech to conform with an agenda they do not set”); Tornillo,

418 U.S. at 256, 258 (intrusion upon function of editors is constitu-

tionally impermissible). See also Wooley v. Maynard, 430 U.S.

705 (1977).

“ Although Congress may not intentionally have sought to sup-

press the speech of cable programmers because of any disagreement

with their views, but rather have sought to advance the fortunes of

broadcasters and what it believed were First Amendment values,

Congress has accomplished its mission only at the expense of

19

Fourth, the must carry provisions aim at a narrow

group of First Amendment speakers-—cable television

operators—and impose burdens upon them that are not

generally applicable, in fact, not even applicable to other

multichannel video programming distributors, such as

MMDS or DBS. That is constitutionally suspect and

subject to strict scrutiny.”

IV. THE MUST CARRY PROVISIONS ARE NOT PRE-

CISELY DRAWN TO FURTHER ANY GOVERN-

MENTAL INTEREST

Since the must carry provisions trigger strict scrutiny,

the government bears the heavy burden of demonstrating

that these provisions serve a compelling interest and are

precisely drawn to further that interest.” The govern-

ment cannot meet its burden.

silencing the voices of cable programmers. As recognized by the

dissent in Turner, “|giiven the finite number of cable channels,

replacement of the cablecaster’s choice of programs with those of

local broadcasters suppresses the alternative programs as com-

pletely as if Congress had ordered them shut down... .” Turner,

819 F. Supp. at 59. (footnote omitted). The result is constitu-

tionally impermissible. See Buckley v. Valeo, 424 U.S. 1, 48-49

(1976) (“the concept that government may restrict the speech of

some elements of our society in order to enhance the relative voice

of others is wholly foreign to the First Amendment”). The must

carry provisions impose a burden “on one set of speakers for the

direct and explicit advantage of a limited class of their competi-

tors.” Turner, 819 F. Supp. at 60. Legislation simply cannot

establish a “pecking order” for speakers. Id.; see also Pacific Gas

& Elec. Co., A475 US. at 14 (speaker has First Amendment right

“to be free from government restrictions that abridge its own rights

in order to ‘enhance the relative voice’ of its opponents”).

87 See Leathers v. Medlock, 111 8. Ct. at 1443-44 (strict scrutiny

appropriate when government “targets a small group of speakers”) ;

Arkansas Writers’ Project, Inc. +. Ragland, 181 U.S, 221, 228

(1987) (“singling out the press as a whole or targeting individual

members of the press —poses particular danger of abuse by the

State”).

20

Congress offers, and Government relies upon, a num-

ber of “findings” concerning a perceived threat to local

broadcasting stations’ competitive viability and the in-

terest IN Maintaining their economic strength as justifica-

tions for a punitive regulatory regime. Several of Con-

gress’ “findings” are nothing more than wholesale adop-

tions of long-standing assertions by the broadcast indus-

try.” In the context of the First Amendment, these “find-

ings” must be carefully scrutinized.” Among the more

dubious findings are:

* as a result of cable’s deriving revenue from adver-

tising. cable’s purported “economic incentive to

limit the voice of broadcast stations in the tele-

vision market,” despite the fact that the over-

Whelming source of cable television operators’ rev-

enue derives from subscriptions, not advertising;

* cable television subscribers’ inability to receive

over-the-air broadcast signals when common sense

indicates such individuals could use antennae:

* See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comim'r

of Revenue, 460 U.S. 575, 585 (1983): Consolidated Edison Co. +.

Public Serv. Comm'n, 447 U.S. 530, 540 (1980).

* See Turner, 819 F. Supp. at 65 (Williams, J., dissenting) (“the

legislative findings simply do not support the inferences needed to

Sustain must-carry” and “[i]f findings as scantily connected to the

conclusion as these can justify must-carry, then the door is open,

even in the area of First Amendment rights to exercise of the

most naked interest-group preferences” ).

" Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843

(1978) ‘(“Deference to a legislative finding cannot limit judicial

inquiry when First Amendment rights are at stake.”). See also

Sable Communications of California, Ine. v. FCC, 492 U.S. 115,

129 (1989) (“it is our task in the end to decide whether Congress

has violated the Constitution. This is particularly true where the

Legislature has concluded that its product does not violate the First

Amendment.”) ; Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir.

1992) (“{I)f a legislature could make a statute constitutional

simply by ‘finding’ that black is white or freedom, slavery, judicial

review would be an elaborate farce.”).

* cable’s purported widespread dropping or reposi-

tioning of broadcast stations."

While the legitimacy of any of these findings is cer-

tainly Open to question, none rise to the level of a com-

pelling governmental interest. Moreover, if any govern-

mental interest is at stake here, Congress could easily

have furthered that interest in a less intrusive manner.”

In the area of the First Amendment, such overbreadth

is fatal.

*! As to this, the House Report admits that “the [House] Com-

mittee has not found that cable systems are engaging in a wide-

spread pattern of denying carriage of local television stations.”

(H.R. No. 628, 102 Cong., 2d Sess. 52 (1992)). Further, the FCC

admits that its 1988 FCC study from which Congress “extrapolated”

its “figures” (see S. Rep. No. 92, 102 Cong., Ist Sess. 43 (1991) ),

did not “focus on or attempt to explain the factors affecting cable

systems’ carriage decisions.” See MM Docket No. 89-600, FCC

90-276 at © 165.

*2 For example, if the protection of local broadcast stations was

a compelling governmental interest, Congress could require tele-

vision manufacturers, cable operators or broadcasters themselves

to supply cable subscribers with antennae, or Congress can pro-

vide direct subsidies to local broadcast television. In either case,

cable’s First Amendment rights would not be impaired as with

must carry.

ee L

a4

CONCLUSION

California and other cable television operators exercise

editorial discretion in programming their channel lineups

and speaking directly to their subscribers. Often their

speech involves the highest level of protected political

speech. Imposition of the must carry statutory scheme

upon the speech of these cable television operators is ab-

horrent to their free speech rights and cannot be sup-

ported under the principles of the First Amendment and

the precedents of this Court.

Respectfully submitted,

SPENCER R, KAITZ

President

JEFFREY SINSHEIMER

Director of Regulatory

Affairs

FRANK W. LLoyp, ITI *

MINTZ, LEVIN, COHN

FERRIS, GLOVSKY &

PorpeEo, P.C.

701 Pennsylvania Ave, N.W.

CALIFORNIA CABLE

TELEVISION ASSOCIATION

4341 Piedmont Avenue

_P.O. Box 11080

Oakland, California 94611

(510) 428-2225

November 9, 1993

Suite 900

Washington, D.C. 20004

(202) 434-7300

Counsel for Amicus Curiae

California Cable Television

Association

* Counsel of Record

APPENDIX

—

la

APPENDIX

{from the San Francisco Examiner, June 2, 1993}

CABLE TV CAN KEEP

POPULAR PROGRAMS

Court lets Viacom ignore

‘must-carry’ rules—for now

By Michael Dougan

Examiner Marin Bureau

SAN RAPHAEL—A federal judge has temporarily

blocked new FCC rules that would force cable TV oper-

ators to drop popular channels in favor of local stations

carrying religious instruction, foreign-language movies and

classroom lectures.

Under a temporary restraining order issued Tuesday

by U.S. District Judge Eugene Lynch, Viacom Interna-

tional systems in San Francisco, Marin, Sonoma, Napa

and Contra Costa counties can ignore a Wednesday dead-

line to follow “must carry” rules Congress imposed on

the Federal Communications Commission under the Cable

Consumer Protection Act of 1992.

The so-called “must carry” rules would require cable

operators to broadcast the signals of local TV stations.

Because many cable operators don’t have empty chan-

nels to spare, that means more distant stations would be

dropped from their systems.

I.vnch’s restraining order delaying the new rules for

30 days, which came in response to a lawsuit by Viacom,

does not apply to other cable operators in Northern Cali-

fornia but it could set precedence for future cases.

A three-judge panel will accept written and oral argu-

ments on the case over the next few weeks, before ruling

on the case.

2a

In “Marin County, Viacom planned to eliminate KTEH-

IV (Channel 54), a San Jose public TV station noted

for its unusual “theme nights” and its preponderance of

British programming. Viacom isn't required to carry

KTEH because the station is outside its “must-carry

zone.

Angry anglophiles descended on Viacom's Marin County

headquarters in San Rafael Tuesday morning to picket

for unbroken access to such British programs as “East

Enders,” a cockney soap opera, and “Rumpole of the

Bailey.” a comedy series, carried on KTEH.

Marin’s Viacom planned to replace KTEH with KCSM

(Channel 60), a San Mateo-based PBS channel that fea-

tures college classroom instruction.

‘The most viewer-responsive’

“The programming on KTEH is unique,” said Gage

Taylor, 51. of Sausalito. “They carry some programs that

are unique to the country, and they're the most viewer-

responsive of any PBS station.”

Elana Ellis of Larkspur said about half of the demon-

Strators like herself, hailed from Britain.

On hand to videotape their comments was Maura Daly

Phinney, a Channel 54 producer. “We have about 6.000

members in Marin,” she said, “and those are just the

people who actually gave us money.”

Viacom also planned to drop the Bravo cultural arts

premium channel and cut drastically its coverave of C-

Spin, which airs U.S. congressional sessions.

In San Francisco, Tuesday's ruling means Viacom won't

have to juggle several channels to accommodate KCSM

and KLXWV (Channel 65). a Christian channel out of San

Jose.

3a

“This really is a victory for our customers,” said Sue

Levitin, Viacom’s San Francisco spokeswoman.

In Marin, where Spanish- and Asian-language channels

would have been added under the new rules, Viacom’s

North Bay general manager Tim Rea said the “must-carry”

policy was troublesome to Bay Area cable operators.

He noted that many cable systems had limited channel

capacity and that there were an unusually high number of

broadcast stations that could claim “must-carry” status.

By 1995, when Marin’s Viacom customers will get 54

channels on an upgraded system, meeting the rules won't

be a problem, Rae said.

In Fairfield, the 25,000 subscribers to MultiVision area

cable system were to lose KPIX (Channel 5), San Fran-

cisco’s CBS affiliate, on Wednesday.

“According to the FCC's mew rules, KPIX is located

out of our area of dominant interest,” said Fran Parkey,

MultiVision vice president and Northern California _re-

gional manager.

Under the new setup, MultiVision will begin carrying

KSCH (Channel 58). a Sacramento independent station

that airs movies, cartoons and syndicated reruns—but no

newscasts.

Since MultiVision carries Sacramento's CBS affiliate,

said Parkey, “our subscribers will get to see the network

stuff, but they'll be cut off from KPIX’s local productions,

San Francisco-area news coverage and personalities

they've come to identify with during the last decade.”

At Cable Oakland, general manager Clay Owens

planned to ignore the FCC’s June 2 deadline for “must-

carry” compliance.

“My dilemma is that KFCB (Channel 42) in Oakland

and KLXV in San Jose both want to be on our system.”

4a

said Owens. “Both are dedicated to Christian religious

broadcasting and are owned by the same company. |

don't believe the FCC wants duplication, so to prevent fur-

ther chaos | will stand pat until July or until such time

as I get further guidance from the FCC.”

Despite the court ruling, Viacom’s battle is far from

won, said Rae. “Between now and the end of the year a

number of other actions could create other disruptions for

our customers.”

They include rules that allow broadcasters to insist on

payment from cable companies that carry them, unless

they choose to declare themselves a “must-carry”™ station.

“The stronger channels might decide they want to make

some money off this deal,” Rae said. “But if negotiations

don’t go well, we'll literally drop these stations.”

And if an agreement comes, he said, the costs could be

reflected in customers’ bills.

Al Morch of The Examiner staff contributed to this

report.

[Picture Omitted in Printing |