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

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FIFED

NOV - 9 1993

NO. 93-44 OFFICE OF WME CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

TURNER BROADCASTING SYSTEM, INC., ET AL.,

APPELLANTS

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

BRIEF OF THE MEDIA INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF APPELLANTS

Sol Schildhause

Counsel of Record

The Media Institute

1000 Potomac St., N.W.

Washington, D.C. 20007

(202) 298-7512

BEST AVAILABLE COPY

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

STATEMENT OF THE CASE;

OPINION BELOW

SUMMARY OF ARGUMENT

ARGUMENT

THE COURT BELOW RELIED ON

THE WRONG TEST IN ASSESSING

THE CONSTITUTIONALITY OF THE

MANDATORY CARRIAGE RULES

(a) The Standard of Judicial

Review in Speech Cases Turns

on the Degree of Government

Intrusion

(b) Court Below Adopts O’Brien,

but its Decision Favoring

Validity of Must-Carry Fails

to Satisfy O’Brien Standards

Page

(1) Making Conclusive a

Congressional Finding of

Substantial Government Interest,

as does the Majority Below, is

Intolerable; would Undermine

the First Amendment by Giving

Congress Free Scope to Abridge the

Freedom to Speak, all without

Judicial Probing into the

Correctness of the Rationale for

Congressional Action 1]

(2) Dissent Below, Unlike

Majority, does Measure and

Evaluate the Record before Congress

on Must-Carry, and Concludes that a

Substantial Government Interest--

or a Problem Demanding Correction--

has not been Established 12

Fact, Content-Specific and Demand

Strict Judicial Scrutiny 13

(1) Majority Below would Invoke

Strict Scrutiny only when Specific

Speech or a Particular Message

is Compelled 13

II.

ill

(2) Accepting Majority View of

Strict Scrutiny, the 1992 Cable

Act’s treatment of the Carriage

Rights of Home Shopping Stations

does Target, does Compel

Specific Speech and Message,

and Finally makes Clear that

Must-Carry is Pure Content Control

(d) The Strict Scrutiny Test

Applies to These Content-Driven

Requirements and the Decision Below

must be Reversed and the Must-

Carry Rules Deemed Invalid

COURT BELOW REACHED

WRONG RESULT EVEN UNDER

THE MORE FORGIVING

O’BRIEN TEST

(a) Substantial Government

Interest Not Sufficiently

Established

(1) Readiness to Assume that

Cable must be Compelled to Carry

Broadcast Stations Defies History

and Logic

(2) Failure or Refusal to Carry

is not Established as a Significant

Problem and a Substantial Government

Interest is not Demonstrated

Ill.

(b) Assured Access to Cable

Television’s Audience is Available

to Broadcast Television without

Burdening the Speech of the

Cable Industry

(1) The Congress and the FCC,

by Abandoning the No Longer

Sustainable Ban on Broadcast

Ownership of Cable, can Make

Available to Broadcast Television

Access to the Cable Audience

(2) The Leased Access Provisions

of the 1984 and 1992 Cable Acts also

Guarantee Broadcast Television’s

Access to the Cable Audience

CONCLUSION

TABLE OF AUTHORITIES

CASES

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987)

Buckley v. Valeo, 424 U.S. 1 (1976)

Carey v. Brown, 447 U.S. 455 (1980)

Carter Mountain Transmission Corp. ,

32 FCC 459 (1962), aff'd,

321 F.2d 359 (D.C. Cir.),

cert. denied, 375 U.S. 951 (1963)

Century Communications Corp. v. FCC,

835 F.2d 292 (D.C. Cir. 1987),

cert. denied, 486 U.S. 1032 (1988)

Consolidated Edison Co. v. Public

Service Commission,

447 U.S. 530 (1980)

FCC v. Midwest Video Corp.,

440 U.S. 689 (1979)

Home Box Office v. FCC,

567 F.2d 9 (D.C. Cir. 1977),

cert. denied, 434 U.S. 829 (1978)

Miami Herald Publishing Company v.

Tornillo, 418 U.S. 241 (1974)

PAGE

Quincy Cable TV, Inc. v. FCC,

768 F.2d 1434 (D.C. Cir. 1985),

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

Turner Broadcasting System v. FCC,

113 S.Ct. 1806 (1993)

(Rehnquist, C.J., in chambers)

Turner Broadcasting System v. FCC,

819 F. Supp. 32 (D.D.C. 1993)

United States v. O’Brien,

391 U.S. 367 (1968)

Ward v. Rock Against Racism,

491 U.S. 781 (1989)

AGENCY ACTIONS

Second Report and Order in Dockets

14895, 15233, and 15971,

2 FCC 2d 725, 6 Rad. Reg. 2d

(P&F) 1717 (1966)

Notice of Proposed Rule Making and

Notice of Inquiry in Docket 18397,

15 FCC 2d 417 (1968)

Second Report and Order in Docket 18397,

19 Rad. Reg. 2d (P&F) 1775 (1970)

4, 6,

19, 20, 21

Vii

Memorandum Opinion and Order in

Docket 18397, 26 Rad. Reg. 2d

(P&F) 739 (1973)

Notice of Proposed Rule Making in

Docket 18894, 25 FCC 2d 38 (1970)

Cable Television Report and Order,

36 FCC 2d 143, 24 Rad. Reg. 2d

(P&F) 1501 (1972)

Report, Economic Inquiry,

45 Rad. Reg. 2d (P&F) 853 (1979)

Rule Making to Delete Mandatory

Signal Carriage, 55 Rad. Reg. 2d

(P&F) 1365 (1984)

Report and Order in MM Docket 85-349

(Adopting Must-Carry Rules),

61 Rad. Reg. 2d (P&F) 792 (1986)

Report and Order in MM Docket 93-8

(Home Shopping Station Issues),

58 Fed. Reg. 39156,

73 Rad. Reg. 2d (P&F) 355 (1993)

STATUTES AND AGENCY RULES

Cable Communications Policy Act of 1984,

Pub. L. No. 98-549, 98 Stat. 2779,

codified at 47 U.S.C. §§521 et seq.

7, 16, 17

Vill

Cable Television Consumer Protection

and Competition Act of 1992,

Pub. L. No. 102-385,

106 Stat. 1460, amending

47 U.S.C. §§521 et seq.

47 U.S.C. §§534, 535

47 U.S.C. §531

47 U.S.C. §532

47 U.S.C. §533(a)

47 C.ER. §76.501

47 C.F.R. $76.60

LEGISLATIVE HISTORY

H.R. Rep. No. 98-934, 98th Cong.,

2d Sess. 22 (1984)

CONSTITUTION

U.S. CONST. amend I

10, 24, 25

passim

OTHER MATERIALS

Bollinger, Freedom of the Press and

Public Access, 75 MICH. L.

REV. 1 (1976)

de Sola Pool, TECHNOLOGIES OF

FREEDOM (1983)

INTEREST OF AMICUS CURIAE

The Media Institute is a nonprofit research foundation

specializing in the study of communications policy. As an

independent and principled advocate of a robust press and a

dynamic communications industry, the Institute dedicates its

work to protecting freedom of speech, encouraging excellence

in journalism, and fostering competition within the communi-

cations industry. The First Amendment rights of all speakers

are now at risk in this case that is testing the authority of

government to compel cable television to carry certain

broadcast television signals. Any diminishment of the speech

rights of cable television operators inevitably threatens the

constitutional nghts of all speakers.

That is the case because cable television, by freeing

electronic communication from the limitations of radiated

electro-magnetic waves, has created, and is continuing to

develop, a medium of communications that is more diverse,

more pluralistic, and more open than the present broadcast

system. In the view of The Media Institute, more like the

print medium. In fact, technological change is galloping at so

rapid a pace that cable television and newspaper publishing are

on the verge of using the same electronic means of communi-

cating.

The Media Institute subscribes to the proposition that

the way our society handles the electronic media is the

preeminent free speech problem of our time. Ithiel de Sola

Pool puts it starkly in TECHNOLOGIES OF FREEDOM, 10

(1983):

The onus is on us to determine whether free

societies in the twenty-first century will con-

duct electronic communication under the condi-

tions of freedom established for the domain of

print through centuries of struggle, or whether

that great achievement will become lost in a

confusion about new technologies.

Indisputably, this new medium of cable television

engages in speech that is protected by the First Amendment.

Turner Broadcasting System, Inc. v. FCC, 113 S. Ct. 1806

(1993) (Rehnquist, C.J., in chambers). The Media Institute

submits that the Congress has violated the First Amendment

rights of cable television system owners by compelling that a

substantial part of system channel capacity be devoted to the

carriage of local broadcast television stations, programmers

that are favored by Congress, which has now set aside the

preferences of the cable system owner who, in the absence of

the must-carry constraint, might choose to carry other pro-

grammers who will now be losing out to local broadcasters.

STATEMENT OF THE CASE; OPINION BELOW

Appellants are contesting the requirements of those

provisions, §§4, 5 (47 U.S.C. §§534. 535) of the Cable

Television Consumer Protection and Competition Act of 1992,

Pub. L. No. 102-385, 106 Stat. 1460, that compel cable

television operators to carry the programming of local

broadcast television stations. The requirement is not insub-

stantial, has the potential to remove from system owner

control perhaps as much as 50% of channel capacity. Thus,

a cable system with a capacity of more than 12 activated

channels must devote up to one-third of those channels to the

carriage of local commercial TV stations. 47 U.S.C. §534(b).

In addition, cable operators must carry three noncommercial

TV stations when system capacity is from 13 to 36 channels,

and perhaps even more noncommercial stations when capacity

is in excess of 36 channels. 47 U.S.C. §535(b). Beyond that,

the holdover provisions of the Cable Communications Policy

Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779, require a

cable operator to relinquish editorial and business control over

(1) such channels as the local cable franchise extracts for

public, educational, and government access channels, 47

U.S.C. §531, and (2) for high-capacity systems, as much as

15% of channel capacity for leased access by persons unaffili-

ated with the system operator, 47 U.S.C. §532.

| The dispute is here on appeal from a decision of a

three-judge district court. Turner Broadcasting System, Inc.

v. FCC, 819 F. Supp. 32 (D.D.C. 1993). Appellants contend

that the mandating by government of cable carriage of

broadcast TV stations violates their rights to freedom of

speech and of the press, rights guaranteed by the First

Amendment to the United States Constitution. The District

Court, by a 2-1 vote, rejected the contention and upheld the

constitutionality of the must-carry requirements. Evidence

was not adduced; the dispute was resolved below on motions

for summary judgment.

The District Court majority decided that must-carry

was economic regulation, not regulation of speech, that the

standard of strict judicial scrutiny did not apply, that the

applicable standard was that established in United States vy.

O’Brien, 391 U.S. 367 (1968), and that the must-carry

provisions satisfied the O’Brien test. Turner Broadcasting,

819 F. Supp. at 41, 45-7.

The majority opinion by District Judge Jackson noted:

“That the First Amendment is to some extent implicated

whenever a government endeavors to regulate a cable com-

ponent...is a proposition now too-well established to recon-

sider [footnote, omitted]." Jd. at 41. A concurring opinion

by District Judge Sporkin, the other vote making up the

majority of two judges, lashed at the cable industry for its

“mischievous” attempt to invoke the First Amendment.’ It

was “inconceivable,” according to the concurring opinion,

"that our forefathers at any time contemplated that the First

Amendment would be used to regulate an industry that came

into existence over 150 years after the Bill of Rights was

adopted." Jd. at 56.

Both majority opinions found that a significant govern-

ment interest had been established by the record made in

Congressional committee hearings, sufficient to satisfy the

O’Brien test. Both are seemingly content to accept without

more the Congressional judgment on the adequacy of the

showing. This is to a large extent, key to the government’s

support of the must-carry provisions in the 1992 Cable Act.

Earlier, on two occasions, must-carry rules produced

by the FCC had been invalidated because of the insufficiency

of proof that there is a problem, proof that cable systems are

not carrying broadcast signals, and that there is, for that

reason, a substantial government interest. Quincy Cable TV,

Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied,

476 U.S. 1169 (1986); Century Communications Corp. ¥.

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

1032 (1988). In both cases, it was concluded that the FCC

had failed to determine whether the problem that must-carry

rules sought to correct “is a real or fanciful threat." Quincy

at 1463; Century at 305. In both cases, too, certiorari was

denied.

' In FCC v. Midwest Video Corp., 440 U.S. 689 (1979),

the court at 709 n. 19 observed that a First Amendment claim

against forced access "is not frivolous."

Despite the reliance of the majority below on the fact

of a Congressional finding and on the sanctity of that finding,

the opinions do go on to gesture in the direction of dealing

with the basis for the Congressional judgment. But the

exploration is principally given over to a recitation of the

length of hearings and the number of witnesses, the bulk of

which has to do with the entire 1992 Cable Act, not necessari-

ly with the problem of cable’s dropping or threatening to drop

broadcast television stations. Turner Broadcasting, 819 F.

Supp. at 39 n. 14.

The dissent of Judge Williams, on the other hand, does

delve into the Congressional record. Jd. at 63. It was the

judgment of Judge Williams that there was some evidence that

broadcast stations had been dropped but that 80% of cable

systems had never discontinued carriage of a single local

broadcaster. In his view, the facts behind the recitation of

long hearings and numerous witnesses "...do not support an

inference that over-the-air TV is at risk." Jd.

SUMMARY OF ARGUMENT

Cable television’s prominent experience with govern-

ment regulation has been to try to break out of FCC rules that

persistently restrained the industry’s authority to carry

broadcast TV signals. In short, cable has from the outset of

its development been plagued by government limits on the

amount of broadcast signal carriage that would be permitted.

Thus, between 1966 and 1972, there was every two years a

new FCC program that continued to shackle cable’s carriage

of broadcast stations. The majority below dwells extensively

on the growing supremacy of cable as a delivery mechanism

for video programming but offers only small (e.g., "They vie

with broadcasters for ‘local’ advertisers," 819 F. Supp. at 44)

rationale for any possible interest of cable in wanting to

discontinue the carriage of broadcast TV stations.

Assuming that O’Brien is the appropriate standard for

assessing the constitutionality of must-carry, it is contended

here that:

(1) As in the Quincy and Century cases, there has been

a failure again to establish that there is a significant govern-

ment interest to be protected. Or, stated graphically, that

there is a problem that must be cured by government's

compelling cable systems to carry broadcast TV stations.

Only the dissent in the decision below bothered to examine the

evidence before the Congress. The majority is content to rely

on what it apparently believes is a large number of witnesses

and hearing days, all without analysis of how much of the

Congressional exploration was given over to must-carry,

which ended up as only two sections in an omnibus cable bill

of 28 sections.

(2) The decision below and the mandatory carriage

rules must fail because must-carry is an overbroad solution

and burdens the speech of cable television system owners

more than is necessary to cure the perceived problem. By

way of example, there are at hand or available other avenues

for broadcast television to assure access to the larger cable

audience, all without intruding on cable TV’s First Amend-

ment rights: Broadcast television ownership of co-located

cable television is barred by Congressional statute and by FCC

regulation. 47 U.S.C. §533(a); 47 C.ER. §76.501. The

original reasons for imposing the ban--to contribute to

diversity and to avoid the possibility that broadcast TV might

impede the development of cable--no longer obtain. Dropping

of the ban would allow local broadcast stations, separately or

in concert, to build their own cable television facilities for

carnage of their signals. Additionally, access to cable’s

audience may be leased from the cable system. Leased access

is guaranteed by 47 U.S.C. §532.

Overridingly, however, amicus contends that the must-

carry rules are content-based and subject to strict judicial

scrutiny. See, e¢.g., Arkansas Writers’ Project, Inc. ¥,

Ragland, 481 U.S. 221, 231 (1987). There is semantic

dispute in the decision below as to when government conduct

constitutes Suppression of free expression or is merely an

incidental burden on speech. The majority appears to accept

the proposition that government can be said to be intruding on

free speech only when it dictates the message or the subject

matter to be carried. Turner Broadcasting, 819 F. Supp. at

42. The dissent of Judge Williams, on the other hand, finds

that “In requiring cable systems to carry a special group of

competing speakers, Congress directly, not incidentally,

yor cable operators’ exercise of editorial discretion."

. at 67.

| Clearer evidence that must-carry is not content-neutral

is at hand in the language of §4 of the 1992 Cable Act, 47

U.S.C. §534, where in subsection (g)(1) the right to must-

carry status is denied to television stations that are "...predom-

inantly utilized for the transmission of sales presentations or

program length commercials." But the same §4 in subsection

(g)(2), directs the FCC to conduct a proceeding to ascertain

whether such stations’ are serving the public interest, conve-

mience, and necessity. Standards are next provided for making

* Labeled “home shopping stations” in FCC proceedings.

-8 (Home Shopping

Station Issues), 58 Fed. Reg. 39156, 73 Rad. Reg. 2d (P&F)

355 (1993).

that assessment. If the FCC concludes favorably for such

stations, must-carry status is conferred. Tellingly, finally, and

in the event the FCC finds against home shopping stations, the

Commission is directed to allow such stations to qualify for

mandatory carriage by giving up the speech associated with

sales presentations and program length commercials.’ The

preciseness of these instructions as to program content clearly

demonstrates that the must-carry rules are inescapably

involved with directing the message.

ARGUMENT

I. THE COURT BELOW RELIED ON THE WRONG

TEST IN ASSESSING THE CONSTITUTIONAL-

ITY OF THE MANDATORY CARRIAGE RULES

(a) The Standard of Judicial Review in Speech

Cases Turns on the Degree of Government

Intrusion

The standard of review in First Amendment cases

depends on whether the government regulation is content-

based or content-neutral. If the intrusion mandates or

suppresses particular speech, it is subject to strict scrutiny by

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

U.S. 221, 231 (1987); Carey v. Brown, 447 U.S. 455, 461-62

(1980). If, on the other hand, speech and nonspeech elements

are combined in the same source of government conduct, a

> 1992 Cable Act, §4(g)(2), 47 U.S.C. §534: "...the

Commission shall allow the licensees of such stations a

reasonable period within which to provide different program-

ming...."

sufficiently important governmental interest in regulating the

nonspeech element can justify incidental limitations on First

Amendment freedoms. In that case, a more lenient judicial

review is indicated under the formula of United States v.

O’Brien, 391 U.S. 367 (1968), as modified in Ward v. Rock

Against Racism, 491 U.S. 781 (1989).

A government regulation is sufficiently justified under

O'Brien: "...if it is within the constitutional power of the

Government; if it furthers an important or substantial govern-

mental interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restric-

tion...[on speech] is no greater than is essential to the further-

ance of that interest." O’Brien, 391 U.S. at 377. The

features of the O’Brien test that are in dispute in the subject

challenge to mandatory carriage have to do with whether a

substantial government interest--or the existence of a

problem--is sufficiently demonstrated, and whether the cure is

tailored--no greater than is essential--to curing the problem.

(b) Court Below Adopts O’Brien, but its Deci-

sion Favoring Validity of Must-Carry Fails

to Satisfy O’Brien Standards

The majority in the 2-1 decision below concluded in

favor of the government on both disputed features of the

O’Brien test. With respect to the establishment of an impor-

tant government interest, the opinion of Judge Jackson relies

only on an inference that Congress had devoted substantial

time to uncovering the problem of broadcast stations being

dropped or not carried. Thus, Turner Broadcasting, 819 F.

Supp. at 39 n. 14, has Judge Jackson relying on this quote

from Sen. Inouye: ("“[T]he bill before us is the result of 13

days of hearings and 113 different witnesses. We have had

countless numbers of communications experts and lawyers

look over the measure. We have conferred with, in addition

to the 113 witnesses, at least 500 knowledgeable citizens").

But 39 n. 14, where Judge Jackson spells out the details of the

Congressional labor over a cable bill, appears to identify only

one date, October 25, 1989, when inquiry was given over to

must-carry. Neither in the statement of Senator Inouye nor in

the majority opinions are details supplied having to do with

numbers of stations dropped or not carried.

The must-carry provisions of the 1992 Cable Act, it is

relevant to observe, involve only two sections, 4 and 5, in a

statute that consists of 28 sections that deal with such promi-

nent matters, in a bill that heralds “Consumer Protection and

Competition,” as Sec. 3. Regulation of Rates, Sec. 6. Retrans-

mission Consent for Cable Systems, Sec. 7. Award of

Franchises; Promotion of Competition, Sec. 8. Consumer

Protection and Customer Service, Sec. 9. Leased Commercial

Access, Sec. 10. Children’s Protection from Indecent Pro-

gramming on Leased Access Channels, Sec. 11. Limitations

on Ownership, Control, and Utilization, Sec. 12. Regulation

of Carriage Agreements, Sec. 13. Sales of Cable Systems,

Sec. 14. Subscriber Bill Itemization, Sec. 15. Notice to Cable

Subscribers on Unsolicited Sexually Explicit Programs, Sec.

16. Technical Standards; Emergency Announcements; Pro-

gramming Changes; Home Wiring, Sec. 17. Consumer

Electronics Equipment Compatibility, Sec. 18. Franchise

Renewal, Sec. 19. Development of Competition and Diversity

in Video Programming Distribution, Sec. 20. Customer

Privacy Rights, Sec. 21. Theft of Cable Service, Sec. 22.

Equal Employment Opportunity, Sec. 23. Judicial Review,

Sec. 24. Limitations on Franchising Authority Liability, Sec.

25. Direct Broadcast Satellite Service Obligations, Sec. 26.

Sports Programming Migration Study and Report, Sec. 27.

Applicability of Antitrust Laws, and Sec. 28. Effective Date.

(1) Making Conclusive a Congressional

Finding of Substantial Government Interest, as does the

Majority Below, is Intolerable; would Undermine the First

Amendment by Giving Congress Free Scope to Abridge the

Freedom to Speak, all without Judicial Probing into the

Correctness of the Rationale for Congressional Action.

Writing separately,* Judge Sporkin, the other vote making up

the 2-1 majority, is content to rely on Judge Jackson’s vague

findings as to the extent of the non-carnage problem that

must-carry is designed to cure. Turner Broadcasting, at 53 n.

4. Moreover, and even though O’Brien, 391 U.S. at 385,

does not require it, both judges fall back on their understand-

ing that courts do not “ordinarily” review the adequacy of the

record that the Congress acted on.°

* The concurring opinion seems inordinately laden with

reproach and incongruity. Plaintiffs are scolded for coming

before the court "...not because their freedom of speech is

seriously threatened, but because their profits are." Turner

Broadcasting, at 54. “Programmers and broadcasters," it is

asserted, “are not constitutionally protected groups." Id. at

56. And, "If the Cable Act compe 'ed the cable programmers

to carry the broadcasters’ speech, or compelled the operators

to relay a particular message, the Act undoubtedly would run

afoul of the First Amendment." Id.

* Judge Jackson at 41: "The record in support of the 1992

Cable Act...was made by Congress. Federal courts do not

ordinarily review the adequacy of the record before Congress

to support the laws it enacts." Judge Sporkin at 51 (later at

53 n. 4, relying on Judge Jackson’s recitation of number of

days given over to large numbers of witnesses): “Congress’

finding is based on an exhaustive Congressional record, and

deserves the Court’s deference."

That position is, however, intolerable where speech is

at risk because it would render the First Amendment vulner-

able to circumvention. The purpose of the First Amendment

is, inter alia, to keep Congress from legislating to abridge the

freedom of speech. The courts have tempered the seeming

absoluteness of the ban by allowing intrusions when a suffi-

cient government interest is established. But the First

Amendment is diminished if Congressional action does not

have to run the gauntlet of judicial review as to the correct-

ness of a finding of government interest. Without judicial

review of the record, for example, a venal legislature could

declare that preserving full-service newspapers is a substantial

government interest that justifies a rule that bans tabloids,

shopping and real estate guides, etc. Without judicial review

of the legislative finding, O’Brien would be no test at all and

the safeguards of the First Amendment would be nullified. As

if recognizing the weakness of the position, both majority

opinions do make a pass at probing the record made before

Congress, however imperceptibly their review touches on the

problem of the extent of broadcast stations being dropped or

not carried in the first instance.

(2) Dissent Below, Unlike Majority, does Measure

and Evaluate the Record before Congress on Must-Carry,

and Concludes that a Substantial Government Interest--or

a Problem Demanding Correction--has not been Estab-

lished. The dissenting opinion of Judge Williams, on the

other hand, goes extensively into the details of the evidence

available to the Congress. Id. at 63-4. There, the evidence

before Congress of the numbers of stations dropped and

carried is marshalled in specific support of the conclusion of

Judge Williams that such activities "do not support an infer-

ence of peril to the broadcast industry or even any segment of

that industry." Jd. Thus, "80% of cable systems have never

dropped a single local broadcaster." Jd. at 63. “What

pertinent data there is on the record states that the average

cable system in 1990 carried just over eight local broadcast

signals (7% more than were carried in 1985)." Id.

Specific and Demand Strict Judicial Scrutiny

It is clear, it is here contended, that the must-carry

rules compel the speech of some and suppress the speech of

others. Even the FCC concedes that. Thus: "These rules

[must-carry]...are intended to compel carriage of broadcast

signals in place of alternate programming that subscribers, if

given their choice, might otherwise choose." Rule Making to

Delete Mandatory Signal Carriage, 55 Rad. Reg. 2d (P&F)

1365, 1367 (1984). .

(1) Majority Below would Invoke Strict Scrutiny

only when Specific Speech or a Particular Message is

Compelled. The majority opinions below are of the apparent

view that, to invoke the strict scrutiny standard of review, the

actual wording of the message, or something approaching that,

must be government prescribed. Judge Jackson at 42: "A

compulsory speech requirement...is to be strictly scrutinized

only if it appears that the government has prescribed the

content - either the message or the subject matter - of the

speech to be spoken [footnote omitted]." Judge Sporkin at 56:

"If the Cable Act compelled the cable programmers to Carry

the broadcasters’ speech, or compelled the operators to relay

a particular message, the Act undoubtedly would run afoul of

the First Amendment."

At the same time, Judge Sporkin at 55 takes the

position that: “The right-of-reply statute in Tornillo...plainly

[was] based on the content of the regulated speech."° That

seems curiously at odds with his apparent view that the

message must be “particular,” perhaps as to wording or at

least as to view. The particulars of the compelled speech or

message in Jornillo, it may be observed, were not govern-

ment-prescribed. All that was required was that a right of

reply be accommodated, without regard to the content of that

reply.

(2) Accepting Majority View of Strict Scrutiny, the

1992 Cable Act’s Treatment of the Carriage Rights of

Home Shopping Stations does Target, does Compel Specific

Speech and Message, and Finally makes Clear that Must-

Carry is Pure Content Control. But, even accepting the

view that, to invoke strict scrutiny, the government intrusion

must deal with and identify specific speech, it is the view here

that that is precisely what the Congress has done, has

identified specific speech. To demonstrate, the evidence as to

how the Congress is treating the must-carry status of home

shopping stations is impressive.

$4 of the 1992 Cable Act, 47 U.S.C. §534, in sub-

section (g), withholds the must-carry option trom television

stations that are "...predominantly utilized for the transmission

of sales presentations or program length commercials." Stated

otherwise, the target is home shopping stations.’ At the

outset, then, the must-carry entitlement is extended only to

local broadcast stations that are not "...predominantly utilized

6 Miami Herald Publishing Company v. Tornillo, 418

U.S. 241 (1974).

’ See n. 2, supra.

for the transmission of sales presentations or program length

commercials." That language in §4 (g) of the 1992 Cable Act

persuades that a feature of the must-carry requirement does

identify and does separate out--withholds--particular speech

from the entitlement otherwise extended to local broadcasters.

But other aspects of shopping station carriage seem even more

conclusive of the question of whether the government’s

insistence on mandatory carriage of broadcast television

stations has to do with broadcast program content.

§4(g) also directs the FCC to conduct a proceeding to

ascertain whether home shopping stations are serving the

“public interest, convenience, and necessity." In making that

appraisal, the Commission is required to consider: "...the

viewing of such stations, the level of competing demands for

the spectrum allocated to such stations, and the role of such

Stations in providing competition to nonbroadcast services

offering similar programming." If the Commission finds that

home shopping stations--and their program content--do serve

the public interest, convenience and necessity, it must qualify

those stations for must-carry status.

Almost certainly for the proposition that must-carry is

content-driven, the Commission, if it finds against home shop-

ping stations on the issue of service in the public interest,

convenience, and necessity, is directed in §4(g) to allow such

stations to qualify for mandatory carriage by giving up home

shopping programming. Thus, at 47 U.S.C. §534(g)(2):

In the event that the Commission concludes that

one or more of such stations are not serving the

public interest, convenience, and necessity, the

Commission shall allow the licensees of such

Stations a reasonable period within which to

provide different programming...."

To put it more vividly, a class of licensees is told that, in

certain eventualities, they may have to suppress the speech

associated with home shopping programming in order to

qualify for the right to demand distribution by cable.

Further demonstrating the unmistakable import of the

Congressional language of §4, that programming--or content--

is a benchmark of the imposition of mandatory carriage, is the

FCC’s subsequent reaction to, and implementation of §4(g).

Thus, to comply with the Congressional direction, the

Commission undertook and completed a proceeding to

measure whether home shopping stations may be said to serve

the public interest, convenience, and necessity. Report and

Order in MM Docket 93-8 (Mandatory Carriage of Home

Shopping Stations), 58 Fed. Reg. 39156, 73 Rad. Reg. 2d

(P&F) 355 (1993). That Report and Order is replete with

evidence of the Commission’s understanding that it was

required to, and did, consider content in estimating whether

shopping stations deserve must-carry Status.

For example, at 429, under “Public Interest Obliga-

tions," the Commission relies, inter alia, on evidence that:

...licensees of home shopping stations have

addressed such issues as drug and alcohol

abuse, AIDS, race relations, homelessness,

basic legal knowledge for non-English-speaking

viewers, and local political debates and election

returns.

By way of further illustration, there is reliance in 430 on

evidence that some shopping stations weekly devote 7.6% of

total broadcast hours to local programming, 7.6% to news and

public affairs, and 10.2% to nonentertainment programming.

Additional insight is provided in the Separate Statement

of FCC Chairman James H. Quello and the Dissenting

Statement of Commissioner Ervin S. Duggan, both statements

appearing as attachments to the Report and Order on home

shopping stations. Commissioner Duggan notes, 73 Rad. Reg.

2d (P&F) 355, 371, that Chairman Quello:

"...has fought the must-carry battle valiantly

throughout his career at the Commission; I

know that he cares deeply about it, and I share

his concern that we not damage must-carry’s

ultimate defense."

What Commissioner Duggan is referring to is the candid

confession by Chairman Quello, id. at 365, that:

...l am concerned that a decision in this pro-

ceeding to exclude home shopping stations

from must carry status solely because of their

content would have jeopardized the legal de-

fense of the must-carry rules [footnote

omitted].

The omitted footnote spells out the Chairman’s awareness that

a content-based imposition on speech would involve a higher

level of First Amendment scrutiny and undermine the constitu-

tionality of the must-carry rules.

The Chairman’s concern about not excluding shopping

stations on the basis of content, lest the legal defense of must-

carry be jeopardized, would seem to be conclusive of the point

that the Congressional legislation is content-based. Thus,

§4(g) clearly provides that home shopping stations cannot

claim must-carry entitlement until the FCC completes a

proceeding favorable to those stations on the question of their

programming or content. Therefore, what Chairman Quello

felt would be a giveaway of a defense was in fact already

surrendered by the Congress in this language from Sec. 4, 47

U.S.C. §534(g)(1):

Pending the outcome of the proceeding under

paragraph (2) [Commission proceeding to

determine whether home shopping stations are

serving the public interest, convenience, and

necessity], nothing in this Act shall require a

cable operator to carry on any tier...the signal

of any commercial television station. ..that is

predominantly utilized for the transmission of

sales presentations or program length commer-

cials.

(d) The Strict Scrutiny Test Applies to These

Content-Driven Requirements and the Deci-

sion Below must be Reversed and the Must-

Carry Rules Deemed Invalid

Since the must-carry rules are demonstrably content-

based, they are a direct and not an incidental burden on

speech. Government must, therefore, justify the requirements

of forced carriage on the basis of a compelling government

interest, and the requirements must be closely drawn to avoid

unnecessary abridgement of speech. See, e.g., Consolidated

Edison Co. v. Public Service Commission, 447 U.S. 530, 535,

540 (1980); Buckley v. Valeo, 424 U.S. 1, 25 (1976). As will

be demonstrated infra, the rules are invalid for, at the very

least, failing the test that they be closely drawn.

Il. COURT BELOW REACHED WRONG RESULT

EVEN UNDER THE MORE FORGIVING

O’BRIEN TEST

(a) Substantial Government Interest Not Suffi-

ciently Established

The purpose of the must-carry requirements of the

1992 Cable Act is to assure local broadcast television’s access

to cable television’s audience. But the history of govern-

ment’s persistence in insisting on mandatory carriage is puz-

zling® because cable television, from the outset, has not only

* The Quincy court, 768 F.2d at 1440, noted that the FCC

considers broadcasting to be “society’s chosen instrument for

the provision of video services." In that connection, it is

useful to reflect that broadcast networks pay their affiliated

TV stations to carry network program lineups. In that

context, it may be speculated that must-carry surfaced at an

early stage to ward against TV stations having to pay for cable

carriage. Pursuing that possibility leads to the new must-carry

rules that were adopted after the Quincy decision invalidated

an earlier program. There, the Commission justified “The

Need for Regulation" on what it described as “evidence in the

record" that some cable systems had ceased carrying, refused

to carry, “and/or requested payment for carriage of stations."

(emphasis added). Report and Order in MM Docket 85-349,

61 Rad. Reg. 2d (P&F) 792, 830 (1986). The Commission’s

new must-carry rules that are here challenged now prohibit a

cable operator "...from accepting or requesting monetary

payment or other valuable consideration in exchange either for

carriage or channel positioning of any broadcast television

station carried in fulfillment of the must-carry require-

ments...." 47 C.ER. §76.60.

not resisted carriage of broadcast television stations, but has

in fact been consistently restrained by government from

expanding its carriage of broadcast stations. Admittedly, the

government’s insistence on carriage was only for local

broadcast stations, and the resistance to expanded carriage had

to do with distant stations. History, however, demonstrates

not a cable resistance to local carriage but an eagerness by the

cable industry to carry broadcast stations.

(1) Readiness to Assume that Cable must be Com-

pelled to Carry Broadcast Stations Defies History and

Logic. The mandatory carriage concept goes back at least to

1962 when the Commission first sought to impose must-carry

as a condition for granting an application to construct a

microwave system to transmit distant broadcast signals to a

rural cable system. Carter Mountain Transmission Corp., 32

FCC 459 (1962), affd, 321 F.2d 359 (D.C. Cir), cert.

denied, 375 U.S. 951 (1963). In 1965, the requirement was

applied to all microwave-fed systems. See, e¢.g., Quincy

Cable, 768 F.2d at 1440 n. 11. In 1966, mandatory carriage

obligations were imposed on all cable systems. /d. All of

that government regulation was imposed at a time when there

was no point to cable’s not carrying local stations because

cable was basically an antenna service that sold only improved

reception of broadcast signals. See, e.g., Home Box Office v.

FCC, 567 F.2d 9, 21 (D.C. Cir. 1977), cert. denied, 434

U.S. 829 (1978).

At the same time that the Commission was insinuating

an obligation on cable systems to carry all local stations, the

industry was being restrained by the Commission from

expanding its carriage of broadcast stations. In 1966, when

must-carry was locked in, the Second Report and Order in

Dockets 14895, 15233, and 15971, 2 FCC 2d 725, 6 Rad.

Reg. 2d (P&F) 1717, also principally featured a restriction on

cable systems operating in the top-100 markets, permitting

them to carry distant stations only after an evidentiary

hearing. . Actual experience with the procedure "...soon

revealed it to be largely unworkable." Report, Economic

Inquiry, 45 Rad. Reg. 2d (P&F) 853, 865 (1979). In 1968,

then, the FCC launched its Notice of Proposed Rule Making

and Notice of Inquiry in Docket 18397, 15 FCC 2d 417,

suspending the authorizing procedure of the 1966 rules and

Proposing a requirement that out-of-market stations could not

be carried unless written permission of the station--i.e., re-

transmission consent--was first obtained. Retransmission

consent, however, “...did not prove to be a workable alterna-

tive..." Report, Economic Inquiry, at 866 n. 49. In 1970,

then, the Commission’s Notice of Proposed Rule Making in

Docket 18894, 25 FCC 2d 38, offered up a complex program

to permit the Carriage in major markets of up to four out-of-

market stations, provided the commercials on those stations

were deleted and the advertising of local UHF stations

substituted. The program was subsequently abandoned, but

the result was to hold off for another two years cable’s ability

to increase the number of broadcast television stations that

could be carried. In 1972, the Cable Television Report and

Order, 36 FCC 2d 143, 24 Rad. Reg. 2d (P&F) 1501 finally

broke the impasse by permitting the carriage of a limited

number of distant stations, the number depending on the size

of the television market, but in no case more than three

commercial stations.

Invalidating the must-carry rules in Quincy Cable, the

court observed’ 768 F.2d at 1457 that:

* The Quincy court, at 1439, noted that the regulatory

result of the FCC’s posture was “to protect an established

industry [broadcast TV] from the encroachment of an upstart

young competitor [cable]....". At Quincy, 1439 n. 10, it was

In the two decades since the rules’ original

promulgation, the Commission has never

seriously examined any of the admittedly

speculative links in the chain of reasoning ad-

vanced in support of the rules. In particular, it

has never sought support for the assumptions

that are the linchpins of its analysis: (1) that

without protective regulations cable subscribers

would cease to view locally available off-the-air

television...and (2) that even if some cable

subscribers did abandon local television, they

would do so in sufficient numbers to affect the

economic vitality of local broadcasting.

History, it is believed, does not demonstrate an

inclination by cable to cut back on its carriage of broadcast

television stations. Nor is the record compiled by the

observed that:

Some analysts have taken a harsher view of the

FCC’s early regulatory posture. See, ¢.g.,

H.R.Rep. No. 98-934, 98th Cong., 2d Sess. 22

(1984) ("FCC policies in [the] 1960s and early

1970s unfairly inhibited the growth and devel-

opment of cable."); Bollinger, Freedom of the

Press and Public Access: Toward a Theory of

Partial Regulation of the Mass Media, 75

MICH.L.REV. 1, 40 (1976) ("There is consider-

able evidence that the Commission has been

more concerned with protecting the economic

interests of conventional broadcasters than with

fully exploiting the resources of cable tech-

nology.").

Congress sufficient to establish new or any urgency attribut-

able to cable’s dropping or refusing to carry broadcast

stations. Thus, the only evidence that the court below

uncovered from the record before Congress in support of

must-carry in the 1992 Cable Act is contained in the dissent

of Judge Williams who culled the numbers and specifics from

the record and found that the extent of non-carriage does

"...mot support an inference of peril to the broadcast industry

or even any segment of that industry." Turner Broadcasting,

819 F. Supp. at 63-4. It was the view of Judge Williams that

"...Cable television appears to continue to be dependent on

local broadcasters as critical suppliers of programming" and

that "...cable simply cannot afford to drop broadcast channels

to any significant degree." Jd. at 64.

(2) Failure or Refusal to Carry is not Established as

a Significant Problem and a Substantial Government

Interest is not Demonstrated. It has not been established, it

is submitted, that non-carriage is a problem. In that circum-

stance, a finding of the existence of a significant government

interest cannot be sustained. The evidence on which the

Congress acted, as uncovered by Judge Williams, is not up to

disturbing the Quincy and Century precedents.

(b) Assured Access to Cable Television’s Audi-

ence is Available to Broadcast Television

without Burdening the Speech of the Cable

Industry

The feature of the O’Brien test that insists that the

remedy not be overbroad seeks a fit between the governmental

interest and the regulation. If there are other cures available

that do not intrude on speech, the must-carry requirement

would inevitably be deemed overbroad. There are such

availabilities.

(1) The Congress and the FCC, by Abandoning the

No Longer Sustainable Ban on Broadcast Ownership of

Cable, can Make Available to Broadcast Television Access

to the Cable Audience. The Congress, 47 U.S.C. §533(a),

and the FCC, 47 C.FER. §76.501, have ruled out, and

continue to prohibit, the cross-ownership of cable television by

broadcast television station owners when the cable system and

the television station are approximately co-located.'? The

original impetus for such a ban has been outdistanced by

developments, and retention of the prohibition is now adverse

to the government interest in curing the problem of assuring

broadcast television’s access to the audience that views televi-

sion over wires. The FCC exclusion, first adopted in 1970,

was premised on the assumption that separation of the media

would contribute to diversity, Second Report and Order in

Docket 18397, 19 Rad. Reg. 2d (P&F) 1775, and that,

otherwise, broadcast television might retard the growth and

development of cable television, Memorandum Opinion and

Order in Docket 18397, 26 Rad. Reg. 2d (P&F) 739, 754

(1973).

The Congress has found that cable "...has become a

dominant nationwide video medium." 1992 Cable Act,

§2(a)(3). The stunting or impeding of cable’s growth is now

The FCC has enacted the ban as: “No cable television sys-

tem...shall carry the signal of any television broadcast

station..." if they are approximately co-located (emphasis in

quotation added), thereby presumably recognizing that it is

impossible to operate a cable system without TV station

carriage and perhaps emphasizing the point that the cable

industry is not likely to drop broadcast signals whose carriage

is vital to cable system operation.

——

beyond the broadcast industry. And diversity would be

enhanced if the cross-ownership ban were lifted and TV

broadcasters permitted to launch their own competing cable

facilities.

(2) The Leased Access Provisions of the 1984 and

1992 Cable Acts also Guarantee Broadcast Television’s

Access to the Cable Audience. Moreover--and short of

building its own cable facilities--broadcast television now has

guaranteed access to cable’s audience via the leased access

route. The cable industry has been legislatively required since

1984 to designate, for systems with 55 or more channels, up

to 15% of channel capacity for commercial use by “persons

unaffiliated with the operator [of the cable system]." 47

U.S.C. §532(6)(1)(B). A broadcast television station, now

barred from ownership of local cable systems, surely qualifies

as such an “unaffiliated” person. With the enactment of the

1992 Cable Act, loopholes in the original requirement have

been closed by requiring the FCC to establish maximum

reasonable terms, rates, and conditions for the use of leased

channels, thereby reducing the opportunity for cable to out-

maneuver the access obligation and making access a more

meaningful avenue to cable’s audience. 1992 Cable Act, §9.

Il. CONCLUSION

Even under the more lenient O’Brien test, the manda-

tory carriage ru’es are unconstitutional. For all the foregoing,

amicus curiae The Media Institute respectfully requests that

the decision below, upholding the validity of mandatory car-

riage, be reversed.

Respectfully submitted,