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

Hn’! Buproms Sour, U.S

FILED

No. 93-44 HOY 1933

IN THE © Coen

SUPREME COURT OF THE UNITED STATIR* F B*

OCTOBER TERM, 1993

TURNER BROADCASTING SYSTEM, INC., ET AL..

. Appellants,

FEDERAL COMMUNICATIONS COMMISSION, ET AL..

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF OF UNITED STATES TELEPHONE ASSN., AMERITECH

CORP., BELL ATLANTIC CORP., BELLSOUTH CORP., GTE

SERVICE CORP., NYNEX CORP., PACIFIC TELESIS GROUP,

ROCHESTER TELEPHONE CORP., AND SOUTHWESTERN BELL

CORP., AS AMICI CURIAE IN SUPPORT OF APPELLANTS

KENNETH W. STARR LAURENCE H. TRIBE

PAUL T. CAPPUCCIO Counsel of Record

KIRKLAND & ELLIS JONATHAN S. MASSEY

655 Fifteenth Street, N.W. 1525 Massachusetts Ave.

Washington, D.C. 20005 Cambridge, MA 02138

(202) 879-5130 (617) 495-1767

MICHAEL K. KELLOGG MICHAEL W. McCONNELL

KELLOGG, HUBER & HANSEN KENNETH S. GELLER

1301 K Street, N.W. ALAN E. UNTEREINER

Washington, D.C. 20005 MAYER, BROWN & PLATT

(202) 371-2770 2000 Penn. Ave., N.W.

Washington, D.C. 20006

nore an Seven (202) 463-2000

MILLER & CHEVALIER

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 626-6010

[Additional Counsel Listed on Inside Cover]

November 9, 1993

: iy} WP

|

MARTIN T. McCUE

900 19th Street, N.W.

Suite 800

Washington, D.C. 20006

(202) 835-3114

Counsel for United States

Telephone Association

JAMES R. YOUNG

JOHN THORNE

MICHAEL E. GLOVER

1710 H Street, N.W.

Washington, D.C. 20006

(202) 392-0895

ROBERT A. LEVETOWN

3603 North Military Road

Arlington, VA 22207

(703) 525-6858

Counsel for Bell Atlantic

Corporation

RAYMOND F. BURKE

GERALD E. MURRAY

1113 Westchester Avenue

White Plains, NY 10604

(914) 644-6424

Counsel for NYNEX

Corporation

JAMES D. ELLIS

LIAM S. COONAN

PAUL G. LANE

175 E. Houston

Room 1258

San Antonio, TX 78205

(210) 351-3449

MARTIN E. GRAMBOW

1401 I Street, N.W.

Suite 1100

Washington, D.C. 20005

(202) 326-8868

Counsel for Southwestern

Bell Corporation

THOMAS P. HESTER

THOMAS QUARLES

30 South Wacker Drive

Chicago, IL 60606

(312) 750-5200

Counsel for Ameritech

Corporation

WALTER H. ALFORD

WILLIAM B. BARFIELD

Suite 1800

1155 Peachtree St., N.E.

Atlanta, GA 30367

(404) 249-2641

Counsel for BellSouth

Corporation

WARD W. WUESTE

MARCEIL MORRELL

HQEO3J43

P.O. Box 152092

Irving, TX 75015

(214) 718-6314

Counsel for GTE Service

on behalf of its affiliated

domestic telephone companies

RICHARD W. ODGERS

LUCILLE M. MATES

130 Kearny Street

Suite 3659

San Francisco, CA 94108

(415) 394-3550

ALAN F. CIAMPORCERO

1275 Penn. Ave., N.W.

Suite 400

Washington, D.C. 20004

(202) 383-6416

Counsel for Pacific

Telesis Group

MICHAEL J. SHORTLEY III

180 South Clinton Avenue

Rochester, NY 14646

(716) 777-1028

Counsel for Rochester

Telephone Corporation

QUESTIONS PRESENTED

Amici will address the following questions implicated by this

Court's review of the constitutionality of the must-carry rules

contained in 47 U.S.C. §§ 534 and 535:

1. Whether this Court should create an industry- or medium-

specific First Amendment hierarchy, relegating video programming

to a status of less than-full constitutional protection.

2. Whether, instead of relying on the identity of the medium

used to transmit information, this Court should assess the

constitutionality of a government restriction on expression on the

basis of the nature of the restriction, recognizing the critical

difference among direct bans on speech, speaker- or content-

specific preferences, and nondiscriminatory access rules.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................... i

TABLE OF AUTHORITIES .................... ili

INTEREST OF AMICI CURIAE ................. I

INTRODUCTION AND SUMMARY OF ARGUMENT .. 3

PENNE GU weGnneuedevendeeeebdsrcoeeece 6

1. THE COURT SHOULD NOT CREATE A

FIRST AMENDMENT HIERARCHY

AMONG THE VARIOUS MEMBERS

UY PE “od oGESedwbeWececsccecece 8

A. The Ongoing Communications Revolution

Counsels Against Any Attempt to Construct

A First Amendment Hierarchy ............... 9

B. In Any Event, Video Programming Should

Not Be Relegated to Less-Than-Full

Constitutional Status .................... 12

1. Video Programming Is a Critical

Form of Communication ................ 12

2. The Government’s Arguments About

Concentration in Cable Markets Do Not

Justify Placing Video Programming At the

Low End of a First Amendment Scale ...... . 14

Il. THE NATURE OF THE GOVERNMENTAL

RESTRICTION ON SPEECH IS THE CRITICAL

FACTOR IN DETERMINING THE

APPROPRIATE LEVEL OF SCRUTINY ..... . 8

SET 60 CE cle ceinediuduwceccccectéetauc 25

TABLE OF AUTHORITIES

Cases: Pages

Akron v. Akron Center for Reproductive Health, Inc..

G2 U.S. 416 (1983) 2. cece, y

Ameritech Corp. v. United States, No. 93-642 (N.D. Wi.) ... 2

Ameritech Corp. v. United States, No. 93-CV-74617-CT

ED sd ak 'h'e bg 6 o bids oo ok & CK cea ccka. 2

Associated Press v. NLRB, 301 U.S. 103 (1937) ......_. 22

Associated Press v. United States, 326 U.S. 1 (1945)... _. 22

Bolger v. Youngs Drug Products Corp.,

| 463 U.S. GO(ISED) 0... cece een, 15

Branzburg v. Hayes, 408 U.S. 665 (1972) .........__. 22

Buckley v. Valeo, 424 U.S. 1(1976) ............... 15

Cohen v. Cowles Media Co., 111 S. Ct. 2513 (1991) .... 22

Chesapeake & Potomac Telephone Co. of Virginia v.

United States, No. 92-1751-A,

(E.D. Va. Aug. 24, 1993), appeal pending,

Nos. 93-2340 (4th Cir.) .................. i, tae

Citizens Publishing Co. v. United States.

394 U.S. 131 (1969) ....................... 23

Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94 (1973)... __. 14, 16, 19

Consolidated Edison Co. v. Public Service Comm'n,

eh 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ... 19

Daniels Cablevision, Inc. v. United States, No. 92-2292

(D.D.C. Sept. 16, 1993) ..................... 21

FCC v. League of Women Voters,

468 U.S. 364(1984) ................... 5, 15, 19

FCC v. Midwest Video Corp., 440 U.S. 689 ll ae 24

FCC v. National Citizens Comm. for Broadcasting,

edie A A rr 14

FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) .... 19

First Nat'l Bank of Boston v. Bellotti.

A ee 15

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 ae 8

Leathers v. Medlock, 111 S. Ct. 1438 Ae 13

Lorain Journal Co. v. United States, 342 U.S. 143 ( 1951) 23

See

Vv

TABLE OF AUTHORITIES (cont.)

Cases: Pages

Los Angeles v. Preferred Communications, Inc.,

A ee re 13

Members of the City Council of the City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984) ......... 13

Metro Broadcasting, Inc. v. FCC,

kt ... 14, 15, 19

Miami Herald Publishing Co. v. Tornillo,

as SL Se we i oh ed wis 15

Minneapolis Star & Tribune Co. v. Minneapolis Comm'r

of Revenue, 460 U.S. 575 (1983).......... | 22

”

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ... .

Mutual Film Corp. v. Industrial Comm'n of Ohio,

eer - 1]

National Ass'n of Regulatory Utility Comm'rs v. FCC,

oe 7 A re 24

Nollan v. California Coastal Comm'n,

483 U.S. 825 (1987) ......... a 19

Pacific Gas & Electric Co. v. Public Utilities Comm'n of

Cotpereee, Gre U0. 1 CORD... cc ewe ee 21

PruneYard Shopping Center v. Robins,

ge Be A al ee eee hoes

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434

(D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986) .. 17

R.A.V. v. City of St. Paul, 112 §. Ct. 2538 (1992) ...... 19

Red Lion Broadcasting Co. v. FCC,

ar a en ee TS Be ak eo passim

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988) ............. 22

Sable Communications, Inc. v. FCC,

a Be ee le tee 5, 19

Schneider v. State, 308 U.S. 147 (1939).......... are

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 112 §. Ct. SOL (1991) .. 2.22... 22

Southeastern Promotions, Lid. v. Conrad,

re es os Lg ce bee 8 obo eee ee 3,8

Vv

TABLE OF AUTHORITIES (cont.)

Cases: Pages

Telecommunications Research & Action Center y. FCC,

801 F.2d 501 (D.C. Cir. 1986),

cert. denied, 482 U.S. 919 (1987) ...... 12

Turner Broadcasting System, Inc. v. FCC.

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

United States v. O’Brien, 391 U.S. 367 (1968) |. 3, 6-7

U S WEST, Inc. v. United States, (W.D. Wash.) ........ 2

Ward v. Rock Against Racism, Inc..

UU vc ivascccssocer.. See

Zacchini v. Scripps-Howard Broadcasting Co..

hg | 22

Statutes and Legislative Materials:

ok passim

47U S.C. §§534and535 ............dsisti«‘i(‘(“ passim

47U S.C. §S54i(ayl) ...........,...,......... 17

SS 17

rh a rs 18

H.R. Rep. No. 628, 102d Cong., 2d Sess. 46 (1992)... 17

Miscellaneous:

Ameritech to Offer “Solutions” for Wireless Data

Providers, Wireless Messaging Report,

Ae 10

Click! On-Line Newspaper Is a Mixed Read.

Wash. Post., Oct. 23,1993, atA-l .........2.2 10

Digest, Wash. Post, Oct. 12,1993,atD-1 ........ 10

C. Fink, Strategic Newspaper

Management (1988) ...........,..,0,002020~2~C~O 13

FCC, Office of Plans and Policies, Broadcast

Television In a Multichannel Marketplace,

OPP Working Paper No. 26 (June 1990)... 12

FRC Second Annual Report at 160, quoted in

Caldwell, Censorship of Radio Programs,

iJ. Ramo L. 465 (19381) ..................... 12

vi

TABLE OF AUTHORITIES (cont.)

Miscellaneous:

Hazlett, The Policy of Exclusive Franchising in

Cable Television, 31 J. Broadcasting &

ieee Dees © Ceres 4s «cs + 0 0-8 60 0/0 ee

Into Media's Future, Digitally, N.Y. Times,

OE a A a ee ae

Newspaper Ass'n of America, Facts About

ee ee eae are

NTIA Reply Comments, Teleport, File No.

13135-CF-TC(3)-92 (May 27, 1992).........

1. de Sola Pool, Technologies of Freedom (1983)

Reply Comments of the United States Department of

Justice, Telephone Company-Cable Television Cross-

Ownership Rules, CC Dkt 87-266 (Mar. 13, 1992)

Report of the Federal Communications Commission

Regarding the President's Regulatory Reform

Program (Agel 26, 1992) .... 222 e eee

» Ba

ms

U.S. Dept. of Commerce, Bureau of the Census, Statistical

Abstract of the United States 1992 (112th ed. 1992)

Video Dialtone Order, 7 FCC Red 5781 (1992) .....

Washington Business, Wash. Post, Oct. 11, 1993, at 17

16

16

1?

, 18

10

BRIEF AMICI CURIAE OF UNITED STATES TELEPHONE

ASSOCIATION, AMERITECH CORPORATION, BELL

ATLANTIC CORPORATION, BELLSOUTH CORPORATION,

GTE SERVICE CORPORATION, NYNEX CORPORATION,

PACIFIC TELESIS GROUP, ROCHESTER TELEPHONE

CORPORATION, AND SOUTHWESTERN BELL

CORPORATION, IN SUPPORT OF APPELLANTS

INTEREST OF AMICI CURIAE

Amici are communications companies in the business of

providing telecommunications services and products to the general

public, including local telephone service regulated as common

carriage under state laws and the federal Communications Act of

1934.' Amici file this brief to suppori the appellants’ position that

the must-carry rules of 47 U.S.C. §§ 534 and 535 are unconstitu-

tional, and also to urge this Court to adopt a framework of analysis

of this case based on the nature of the governmental restrictions on

speech rather than to relegate an entire category of expression —

video programming — to less-protected status. Ammici’s interest in

this case is twofold:

First, telephone cornpanies are prohibited by federal statute from

providing “video programming” directly to subscribers within their

telephone service area. 47 U.S.C. § 533(b). “Video program-

ming” is defined as “programming provided by, or generally

considered comparable to programming provided by, a television

broadcast station.” /d. at § 522(16).

On August 24, 1993, the United States District Court for the

Eastern District of Virginia held § 533(b) unconstitutional under

the First Amendment, both on its face and as applied. Chesapeake

& Potomac Telephone Co. of Virginia v. United States, No. 92-

1751-A, Mem. Op. (E.D. Va. Aug. 24, 1993), appeal pending,

Nos. 93-2340 (4th Cir.) (filed Oct. 15, 1993). Additional First

Amendment challenges to § 533(b) are currently pending in other

* Letters reflecting written consent of the parties to the submission of this

brief have been filed with the Clerk of the Court.

' Also included as an amicus is the primary trade association of the local

telephone industry, the United States Telephone Association.

2

federal district courts. See Ameritech Corp. v. United States, No.

93-642 (N.D. Ill.) (filed Nov. 1, 1993); Ameritech Corp. v. United

States, No. 93-CV-74617-CT (E.D. Mich.) (filed Nov. 1, 1993);

U S WEST v. United States (W.D. Wash.) (filed Nov. 3, 1993).

Amici believe that, in adjudicating the constitutionality of 47

U.S.C. §§ 534 and 535, this Court would be aided by a fuller

picture of the relevant statutory framework — especially the

immediately adjacent provision, 47 U.S.C. § 533(b), containing the

ban on video programming by telephone companies. In particular,

amici respectfully suggest that this Court should not issue a broad

edict resolving the constitutionality of the must-carry access rules

that would prejudge constitutional questions raised by § 533(b)’s

direct ban on speech — questions that may well be before the

Court within a year. Aynici believe that they can be of assistance

to the Court in identifying the features of the instant case that

would permit an appropriately narrow resolution.

Second, and more generally, amici have an interest in this case

because print, television, telephone, computer, and cable tech-

nologies are already converging in a single information services

market. Amici have a strong interest in ensuring that no artificial

legal distinctions are drawn among different media whose means of

delivering information — however distinct they may have been in

the past — are now merging.

Telephone companies are deploying fiber optic cable with the

capacity for video as well as voice transmission. Newly developed

signal compression technologies allow video programming to be

transmitted over copper telephone wires as well. As a result, amici

have become communications companies rather than simply

telephone companies. In addition, telephone and cable companies

have formed alliances to deliver telecommunications services more

efficiently to American consumers.’ Amici therefore have a direct

? On May 16, 1993, U § WEST announced that it had bought a 25

percent stake in Time Warner Entertainment, the nation’s second-largest cable

company, in a move to create interactive cable networks. On Oct. 12, 1993,

BellSouth announced plans to acquire a 22.5 percent stake in Prime

Management Co., which operates cable systems. On Oct. 4, 1993, NYNEX

announced that it was investing $1.2 billion in Viacom, a cable company;

3

and legitimate interest in the regulatory regime governing the

provision of video programming.

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici believe that the must-carry rules contained in 47 U.S.C.

§§ 534 and 535 violate the First Amendment, primarily for the

reasons stated in Judge Williams’ opinion below: they require cable

operators to carry the speech of a special class of government-

preferred speakers — local commercial and noncommercial tele-

vision stations. Amici agree with Judge Williams that “Congress

cannot advance specific content by requiring a competing class of

First Amendment speakers to carry the favored speech.” Turner

Broadcasting System, Inc. v. FCC, 819 F. Supp. 32, 62 (D.D.C.

1993) (dissenting opinion). In addition, amici believe that the

must-carry rules could not survive scrutiny under the test of United

States v. O'Brien, 391 U.S. 367, 377 (1968), and Ward v. Rock

Against Racism, Inc., 491 U.S. 781, 798 (1989).

Amici submit, however, that even if this Court were to uphold

the must-carry rules, it should decide this case in a way that does

not prejudge the telephone companies’ pending constitutional

challenge to 47 U.S.C. § 533(b), which prohibits telephone

companies from providing “video programming” directly to

subscribers within their telephone service areas. A federal district

court has invalidated § 533(b) under the First Amendment: the

decision is on appeal to the Fourth Circuit and may well be before

NYNEX is also the largest cable provider in the United Kingdom. On Feb.

10, 1993, Southwestern Bell announced plans to buy two Washington, D.C.

area cable systems from Hauser Communications. Pacific Telesis is awaiting

federal approval to purchase 75 percent of Prime Cable of Chicago. And on

October 13, 1993, Bell Atlantic announced a planned merger with Tele-

Communications, Inc. (TCI) and Liberty Cable.

These transactions have not implicated the ban on video programming by

telephone companies embodied in 47 U.S.C. § 533(b). Southwestern Bell's

acquisition, for example, occurred outside its telephone service area and thus

was not covered by the statute. Even Bell Atlantic, against whom

enforcement of § 533(b) has been enjoined, has committed not to retain any

cable systems owned by TCI or Liberty Cable in the Bell Atlantic telephone

service area.

4

this Court within a year. Additional challenges to § 533(b) are

pending in other federal district courts.

I. The Court should not attempt to create a pigeonholed First

Amendment hierarchy with different levels of constitutional

protection for different technologies. The question before the

Court is not whether cable television is more like newspapers or

more like broadcasting. This Court has indicated that “[eJach

medium of expression . . . must be assessed for First Amendment

purposes by standards suited to it, for each may present its own

problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 557 (1975). But that does not mean that this Court should

constitutionalize a First Amendment pecking order in which certain

members of the press receive preferential treatment and others are

relegated to disfavored status depending solely upon how the

products of their creativity and editorial judgment are delivered to

the public.

Amici urge this Court to bear in mind several developments

militating strongly against an industry-specific hierarchical

approach:

A. The Nation and the world are in the midst of a

telecommunications revolution, which would overwhelm any

attempt to draw constitutional lines on the basis of changing

technological characteristics. Even newspapers and magazines, the

most traditional members of the press, are no longer simply print

media. They are now available electronically to millions of

computer users, who can read the publications in electronic form

or print them out in the familiar paper format. The difference

between print journalism and electronic forms of communication ts

now simply a matter of whether the printing occurs at a central

plant or instead at each reader’s home or office.

As the computer, telephone, and television combine with cable

technology to usher in a new era of interactive, multimedia

communications services, it is becoming impossible to define the

traditional media in technological terms. The carriage capacities

of the new broadband networks will be vast, and companies like

amici will make them available to independent programmers of all

affiliations and views. In the new information age, even the

soapbox orator will have the power to be seen as well as heard.

5

B. In any event, this Court should not relegate video

programming to the low end of a First Amendment hierarchy.

1. More people rely on video programming than on any other

source of news and entertainment. Moreover, video programmers

exercise the same kind of editorial discretion as do newspaper and

magazine publishers. If anything, the Government's power to

regulate entry into video programming should be subject to

heightened, not reduced, First Amendment scrutiny.

2. The Government's narrow justification for the must-carry

rules provides no warrant for broadly decreeing a particular level

of First Amendment protection for cable television, or any other

variety of communications technology. The Solicitor General

claims that the must-carry rules are a remedy for problems of

concentration and anticompetitive abuse in the cable industry. The

Court should not endorse different laws that cannot be justified by

that rationale, or issue a ruling that would give the Government

greater power to exclude new entrants from video programming.

II, The nature of the governmental restriction on speech is the

critical determinant of the level of scrutiny to which a restriction

should be subjected, regardless of the technology used to transmit

the information at issue. Thus, this Court applied strict scrutiny in

Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989),

notwithstanding the fact that the case involved wireline

communications, and this Court took note of the direct, content-

based nature of the restrictions on speech at issue in FCC vy.

League of Women Voters, 468 U.S. 364 (1984), even though that

case involved broadcasting.

There is a fundamental difference among (1) direct prohibitions

on speech like 47 U.S.C. § 533(b), (2) preferential speaker- or

content-specific access rules, and (3) neutral, nondiscriminatory

access rules. Amici believe that the must-carry rules contained in

§§ 534 and 535, which fall into the second rather than the third

category, are unconstitutional. In any event, however, it is critical

to recognize that access rules, whatever their constitutionality, lend

no support to direct bans on speech — and particularly to laws that

use the content of expression to identify what information a speaker

is forbidden to provide to that speaker’s chosen audience. Access

rules affect speech merely incidentally, by burdening expression

6

only insofar as distribution capacity cannot be expanded to

accommodate additional speakers.

The difference between access requirements like the must-carry

rules and direct prohibitions on speech is particularly salient with

respect to amici. Telephone companies are currently subject to

nondiscriminatory access obligations as common carriers that are

far more extensive than the must-carry rules at issue here, and that

also avoid the constitutional infirmity identified by Judge Williams.

Telephone companies that delivered their own video programming

over their common-carrier networks would retain these nondiscrim-

ination obligations. Hence, the permissibility of an access rule

could not be used to justify a restriction like § 533(b).

In short, if the Court does sustain the decision below, we

respectfully urge the Court to avoid a broad ruling that sweeps

beyond the key factors of this case and the special nature of the

must-carry rules, in view of the related, but nonetheless very

different, questions that may soon be presented to the Court in

litigation regarding § 533(b).

ARGUMENT

Amici believe that the must-carry rules of the i992 Cable Act

are invalid under the First Amendment, and we urge this Court to

reverse the judgment of the district court. As Judge Williams

noted, those rules do not extend access on the basis of “neutral

criteria for service.” 819 F. Supp. at 57 (dissenting opinion).

Rather, they “extend the privilege of access only to a special class

of unaffiliated programmers” — local broadcast television stations

— because of a legislative judgment that the programming content

provided by those speakers is especially worthy. /d. at 58.

While Judge Williams applied strict scrutiny, see id. at 60,

amici believe that the must-carry rules are also invalid under the

test of United States v. O'Brien, 391 U.S. 367, 377 (1968), and

Ward v. Rock Against Racism, Inc., 491 U.S. 781, 798 (1989).

Congress’ factfinding with respect to §§ 534 and 535 is

noteworthy, both because it was unusually extensive and because

it was embodied in formal legislative findings adopted as part of

the 1992 Cable Act. This type of factfinding is completely absent

in the case of many laws, such as 47 U.S.C. § 533(b).

7

Nevertheless, Congress’ factfinding is woefully inadequate for the

reasons elucidated by Judge Williams, see 819 F. Supp. at 61-64

(dissenting opinion), and amici submit that the factual predicate for

the must-carry rules cannot sustain them under any form of

heightened First Amendment scrutiny, including the test of O’Brien

and Ward. For example, “the fit between the interest and the

regulation is extremely weak,” because there are less intrusive

alternatives endorsed by Congress demonstrating that §§ 534 and

535 are not narrowly tailored to the asserted governmental

interests. 819 F. Supp. at 61.

Amici submit this brief not only to Support appellants, but also

to make this Court aware that the analytical approach taken in the

present case could well have an impact on many other cases

involving cable and other new technologies for the transmission of

ideas, information, and opinion. For example, the constitutionality

of the statute prohibiting telephone companies from providing video

programming directly to subscribers within their telephone service

areas, 47 U.S.C. § 533(b), is a question that may soon be before

this Court.’ Amici believe that the decision below should be

reversed; but whether or not this Court accepts that argument, the

Court should not prejudge any of the related, but nonetheless very

npn questions regarding the flat ban on speech contained in

§ 533(b).

* As is noted above, one federal district court has struck down the law as

a “draconian” measure burdening substantially more speech than is necessary

lo serve the Government's asserted interests. Chesapeake & Potomac

Telephone Co. of Virginia v. United States, No. 92-1751-A, Mem. Op. at 46

(E.D. Va. Aug. 24, 1993), appeal pending, Nos. 93-2340 (4th Cir.) (filed

Oct. 15, 1993). Other First Amendment challenges have also been brought.

I. THE COURT SHOULD NOT CREATE A

FIRST AMENDMENT HIERARCHY AMONG

THE VARIOUS MEMBERS OF THE PRESS

This case presents no occasion to articulate a First Amendment

hierarchy in which certain members of the press would be deemed

“more equal” than others and in which varying levels of judicial

protection for particular transmittal technologies would be frozen

into the Constitution. Although in the past this Court has explained

that “[eJach medium of expression . . . must be assessed for First

Amendment purposes by standards suited to it, for each may

present its own problems,” Southeastern Promotions, Lid. v.

Conrad, 420 U.S. 546, 557 (1975), the Court has also emphasized

that “the basic principles of freedom of speech and the press, like

the First Amendment's command, do not vary. Those principles

. make freedom of expression the rule.” Joseph Burstyn, Inc.

v. Wilson, 343 U.S. 495, 503 (1952).

The proper approach is not to formulate individual standards of

scrutiny for various communications technologies, which are not

only rapidly evolving but also converging. Rather, the proper

approach is to recognize that differences between these technologies

and the more traditional media of mass communications can be

considered on a case-by-case basis in identifying the government's

interest in a particular regulation at issue. Specifically, we urge

the Court not to constitutionalize a permanent First Amendment

bias that would give less freedom to speech that is delivered over

electronic information highways rather than over asphalt and

concrete rights of way. If a particular technology presents a

special public policy problem, that problem can be taken into

account in determining whether the government has adequately

demonstrated an overriding interest in the individual regulation at

issue.

This approach is strongly supported by several factors with

which amici are especially familiar.

9

A. The Ongoing Communications Revolution

Counsels Against Any Attempt To Construct

A First Amendment Hierarchy

Traditional distinctions among different media are breaking

down, and technological change would overwhelm any attempt to

establish any sort of First Amendment hierarchy among various

print and electronic communications media. The Government has

already conceded in this case that wireline communications such as

telephone and cable services eliminate the physical scarcity of the

electromagnetic spectrum and the problem of interference on which

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), is

based.* In the same way, contemporary technological changes are

transforming and merging previously distinct methods of

transmitting information.

Thus, newspapers and magazines are losing their former identity

as exclusively print media and have increasingly turned to

electronic means of distributing their wares directly to the homes

and offices of their subscribers. Once the information is

transmitted, the recipient can store or manipulate it in electronic

form, or print it in hard copy to read in the familiar paper format.*

* Of Akron v. Akron Center for Reproductive Health, Inc.. 462 US. 416,

458 (1983) (O'Connor, J., dissenting) (noting the problem of technological

change overtaking constitutional categories).

* The Government has not disputed that “cable television is techno-

logically distinct from broadcast television” and that “there exist no absolute

physical limitations to the construction of cable systems equivalent to the

physical scarcity of the broadcast spectrum.” Defendants’ Response to Time

Warner Entertainment Co.'s Statement of Material Facts Allegedly Not in

Dispute, in National Cable Television Ass'n v. FCC. Nos. 92-2495, et al., at

{ 23 (D.DC. filed Feb. 25, 1993) (emphasis omitted).

. Many publications are already available in electronic versions, from

such services as America Online, CompuServ, Prodigy, LEXIS/NEXIS,

DataTimes, and Dialog. Time magazine, the San Jose Mercury News, the

Chicago Tribune, and other newspapers and periodicals have their own

electronic services, and many publishers, including Dow Jones, Times Mirror

Co., Cox Enterprises, Gannett, Knight-Ridder, the Washington Post, and

U.S. News and World Report, have announced plans for more in the future.

10

The electronic medium allows publishers to enhance the depth and

timeliness of their coverage.’ In short, the notion of a First

Amendment hierarchy with the print media at its apex is already

obsolete.

More generally, advances in the electronic delivery of

information mean that many kinds of previously disparate

communications services are converging in a single, sprawling

market. By itself, each new development may seem a technical

curiosity — interactive cable and television shows that permit the

audience to respond to news and entertainment, video on demand,

which permits viewers to select movies and other programming at

their discretion and in effect to become their own programmers,

instant on-line access to health care information, educational

materials, computer software and video games. But each

development is a signal that telephones, televisions and computers

are merging into a single technology and that the ongoing

electronic and digital revolution is already transforming the press.

One noted commentator has explained that, in the computer age,

See Click! On-Line Newspaper Is a Mixed Read, Wash. Post, Oct. 23, 1993,

at A-l.

Beginning in 1994, the Wall Street Journal will offer an electronic

newspaper called “Personal Journal,” which will replicate the Journal's

traditiona! format, using similar typefaces and retaining features such as the

front-page “What's News” index. Washington Business, Wash. Post, Oct.

11, 1993, at 17.

A leading cable company has announced plans to enable its customers to

receive and to print magazine articles, coupons, or ads via cable TV service.

Digest, Wash. Post, Oct. 12, 1993, at D-1.

And a division of Motorola broadcasts pages of news, sports, and weather

reports from USA Today to customers who use its beeper-size receivers.

Ameritech to Offer “Solutions” for Wireless Data Providers, Wireless

Messaging Report, Oct. 26, 1993, at 5.

” For example, stock prices in a newsprint paper are out-of-date by the

time the edition hits the streets, while stock prices in the paper's electronic

version can be constantly updated. Moreover, electronic newspapers can

incorporate interactive components that permit subscribers greater control

over what they read. In the electronic version of some newspapers, for

instance, readers can ask for additional information that is not available in the

newsprint edition.

ll

“bits are bits. . . . There really is not as much of a fundamental

difference as we want to think between radio, television,

newspaper, magazines.”*

Developments in fiber optics and signal compression

technologies mean that information and advanced services can now

be delivered over broadband networks with immense carriage

capacity. New wires can be deployed without interfering with

existing networks. Red Lion, with its focus on problems of

physical interference and scarcity, is strikingly inapposite in this

context. Indeed, these broadband networks will be equally

available to all speakers, so that there will be no need for the kind

of governmental allocation that occurs in the context of the

electromagnetic spectrum.

In light of the ongoing technological and market upheavals, it

would be extraordinarily unwise to use the instant case to

constitutionalize extant but potentially ephemeral technological

distinctions among various forms of public expression. The history

of the legal treatment of emerging technologies provides a

cautionary lesson. At the dawn of the motion picture age, this

Court held that movies were not protected by the First

Amendment. Mutual Film Corp. v. Industrial Comm'n of Ohio,

236 U.S. 230, 244 (1915). When radio was in its infancy, the

Federal Radio Commission, predecessor to the FCC, warned

licensees that “[t}he Commission is unable to see that the guaranty

of freedom of speech has anything to do with entertainment

programs as such.”* As one astute observer has explained,

“[tjechnical laymen, such as judges, perceive the new technology

in that early, clumsy form, which then becomes their image of its

nature, possibilities, and use. This perception is an incubus on

later understanding.” I. de Sola Pool, Technologies of Freedom 7

(1983).

* Into Media's Future, Digitally, N.Y. Times, Oct. 17, 1993, at F-9

(quoting Nicholas Negroponte, director of MIT's Media Laboratory).

* FRC Second Annual Report at 160, quoted in Caldwell, Censorship of

Radio Programs, | J. Radio L. 441, 467 (1931).

12

There is no reason to repeat this cycle with the communications

technologies of the new information age.

B. In Any Event, Video Programming Should

Not Be Relegated To Less-Than-Full

Constitutional Status

1. Video Programming Is a Critical Form

of Communication

As traditional media increasingly rely on electronic means of

delivering information, the primacy of video programming has

become all the more evident. Video programming is an uniquely

effective and popular form of communication that has become the

public’s principal source of news, entertainment, and other

information. Many more households have televisions than

subscribe to newspapers."° The average television household

watches teievision seven hours per day, whereas the average

newspaper receives only 45 minutes of attention." In addition, the

“*power to communicate ideas through sound and visual images .

is significantly different from traditional avenues of

communication because of the immediacy of the medium.””

Telecommunications Research & Action Center v. FCC, 801 F.2d

501, 508 (D.C. Cir. 1986) (quoting FCC Report and Order), cert

denied, 482 U.S. 919 (1987). In short, video programming is the

most pervasive form of communication in the United States today,

it is the contemporary equivalent of the handbill, newspaper, and

live entertainment source rolled into one.

Moreover, this Court has already indicated that video

programmers are members of the “press” and exercise editorial

- According to the Census Bureau, 92 million households (or 98 percent

of all households) have a television, in contrast to a total daily newspaper

circulation of 62 million. U.S. Dept. of Commerce, Bureau of the Census,

Statistical Abstract of the United States 1992, Table 884 (112th ed. 1992).

"Federal Communications Comm'n, Office of Plans and Policies,

Broadcast Television Ina Multichannel Marketplace, OPP Working Paper No.

26, at 19, 107 (June 1990); Newspaper Ass'n of America, Facts About

Newspapers "92, at 25 (1992).

13

discretion that is protected expression under the First Amendment.

Leathers v. Medlock, 111 S. Ct. 1438, 1442 (1991); Los Angeles

v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986).

Video programmers exercise such discretion in creating, choosing,

arranging, and packaging programming for sale to consumers.

These functions are indistinguishable from those performed by

booksellers or newspaper publishers, which also frequently

distribute material prepared by others and must determine in the

first instance whether the material should be published at all and

also how it should be arranged and editorially packaged.” In the

information age, it is the exercise of this editorial discretion and

judgment, not the technological means which the publisher uses to

deliver the resulting information, that should be the primary

determinant of First Amendment protection.”

For these reasons, it would be utterly unjustified to place video

programming at the low end of an arbitrary First Amendment

hierarchy, or to give the government broad license to determine

who may engage in constitutionally protected programming

functions. Indeed, this Court's decisions reflect special solicitude

for “uniquely valuable or important mode[s] of communication.”

Members of the City Council of the City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 812 (1984); see also

Schneider v. State, 308 U.S. 147, 164 (1939) (invalidating

restrictions on pamphleteering, while noting that “pamphlets have

proved most effective instruments in the dissemination of opinion”

as Newspapers typically rely upon news services like the Associated Press

for national and international news. A 1986 study found that AP member

papers fill 37% of their news needs with AP copy. C. Fink, Strategic

Newspaper Management 167 (1988). Newspapers also rely on feature

syndicates for materials such as cartoons, editorial cartoons, sports scores,

weather maps, and columnists. Many Sunday newspapers include preprinted

inserts such as comics sections, magazines like Parade, and television listings.

When acting as video programmers, telephone companies exercise the

same editorial discretion as other electronic publishers. This activity,

however, does not detract from their concurrent obligations to provide

electronic distribution services to unaffiliated video programmers when

operating as common carriers. See pp. 23-24, infra.

14

and that “perhaps the most effective way of bringing them to the

notice of individuals is their distribution at the homes of the

people”). Video programming is a major means of expression for

which there is no adequate substitute, and any law prohibiting a

class of speakers from engaging in it should be subject to

heightened First Amendment scrutiny.

2. The Government’s Arguments about

Concentration in Cable Markets Do Not Justify

Placing Video Programming at the Low End

of a First Amen“*ment Scale

The Government's justification for the must-carry rules provides

no reason to decree a particular level of First Amendment

protection for cable television, or for any other emerging

communications technology. The Solicitor General contends that

the must-carry rules are a permissible means “of addressing the

market power and concentration of cable system operators and the

anti-competitive practices existing in the cable television industry.”

Motion of the Federal Respondents to Affirm, in No. 93-44 at 4-5.

Accordingly, the Solicitor General contends, cable television should

be subject to a regulatory approach “comparable” to that of

broadcasting. /d. at 19.

There are powerful legal reasons to reject the Solicitor General's

argument. This Court has made clear that the “scarcity” doctrine

underlying the broadcast regulatory regime established in Red Lion

is linked specifically to the problems of interference caused by the

physical scarcity of the electromagnetic spectrum’* — a problem

'$ See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375 n.4,

376, 388-90, 397-400 (1969). In FCC v. National Citizens Comm. for

Broadcasting, 436 U.S. 775, 799 (1978), the Court reaffirmed that this

rationale was premised on “the physical limitations of the broadcast

spectrum” and “problems of interference between broadcast signals.” In

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), the Court once again

noted that the broadcasting doctrine is premised on “the scarcity of

lelectromagnetic] frequencies.” /d. at 566 (internal quotation omitted;

brackets in original); see also CBS, Inc. v. Democratic Nat'l Committee, 412

U.S. 94, 101 (1973). The Court has predicted that technological advances

altering spectrum scarcity may lead to a revision of the appropriate

15

that indisputably does not arise in the case of cable television. This

Court has consistently held that the broadcasting doctrine cannot be

transferred by metaphor to other kinds of scarcity." The Red Lion

Court itself explained that its decision was premised solely on the

unique physical limitations of the spectrum and that it was not

addressing scarcity caused by economic conditions."

In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

(1974), this Court rejected an attempt to transform Red Lion into

a broader “scarcity” theory. The Court acknowledged that “the

same economic factors which have caused the disappearance of vast

numbers of metropolitan newspapers, have made entry into the

marketplace of ideas served by the print media almost impossible.”

418 U.S. at 251. The Court noted that “[t}he First Amendment

interest of the public in being informed is said to be in peril

because the ‘marketplace of ideas’ is today a monopoly controlled

by the owners of the market,” id., and warned that “a local

newspaper . . . has extraordinary power to set the atmosphere and

determine the terms of local consideration of public issues.” /d.

at 250 n.15. Nonetheless, the Court concluded that “press

constitutional approach to broadcast regulation. See FCC v. League of

Women Voters, 468 U.S. 364, 376-77 n.11 (1984); see also Metro

Broadcasting, 497 U.S. at §90 n.41.

1s ; . ; ,

This Court has refused to accept Red Lion as justification for

regulations affecting arguably scarce resources in the context of elections, see

Buckley v. Valeo, 424 U.S. 1, 49 n.55 (1976) (per curiam), corporate

expression, see First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 791 n.30

(1978), and speech by regulated monopolies, see Consolidated Edison Co. vy.

Public Service Comm'n, 447 U.S. 530, 543 (1980). The limits of Red Lion

are apparent in the Court's observation that “[o]ur decisions have recognized

that the special interest of the Federal Government in regulation of the

broadcast media does not readily translate into a justification for regulation

of other means of communication.” Bolger v. Youngs Drug Products Corp. ,

463 U.S. 60, 74 (1983).

16 “ e . .

We need not deal with the argument that even if there is no longer a

technological scarcity of frequencies limiting the number of broadcasters,

there nevertheless is an economic scarcity in the sense that the Commission

could or does limit entry to the broadcasting market on economic grounds and

a no more stations than the market will support.” 395 U.S. at 401

n.28.

16

responsibility is not mandated by the Constitution and like many

other virtues it cannot be legislated.” /d. at 256. The newspaper

industry remains highly concentrated today."”

More fundamentally, however, the Solicitor General's argument

plainly cannot justify reduced constitutional protection for cable

television as a categorical matter, or a lower level of scrutiny for

every law touching on cable television. Many such laws simply

cannot be justified by the governmental interest in preventing cable

monopolies. For example, every expert government agency to

have studied the issue has concluded that the statutory ban on video

programming by telephone companies in their telephone service

areas, 47 U.S.C. § 533(b) exacerbates concentration in cable

markets.'* It would be perverse to use the concentrated nature of

'7 While daily newspapers are published in some 1,513 cities, there are

competing dailies in only 37 cities and 19 of these are published under un

operating agreements. NAA, Facts About Newspapers "92, at 26 (1992), see

also CBS, Inc. v. Democratic National Committee, 412 U.S. 94, 144 (1973)

(Stewart, J., concurring) (“there are many more broadcasting stations than

there are daily newspapers,” and “newspapers get Government mail subsidies

and a limited antitrust immunity”).

18 ¢oe Video Dialtone Order, 7 FCC Ked 5781 (1992) (formal

recommendation by FCC to Congess that § 533(b) be repealed): Report of the

Federal Communications Commission Regarding the President's Regulatory

Reform Program 16, 67 (April 28, 1992) (explaining that removing the ban

would “increas[e}] competition in the video marketplace, spur|] the investment

necessary to deploy an advanced infrastructure, and increas[e] the diversity

of services made available to the public,” and that introducing competition

from telephone companies “would result in significant price savings for

consumers and stimulate provision of a range of new information Services, :

with rates falling about 20 percent and subscribership increasing by 11.2

million households nationwide); Reply Comments of the United States Depart-

mentof Justice , Telephone Company-Cable Television Cross-Ownership Rules,

CC Dkt 87-266 at 44-46 (Mar. 13, 1992) (explaining that telephone

companies “should be allowed to own and directly provide video

programming” because telephone company “provision of video programming

will have procompetitive benefits that outweigh any anticompetitive risks

involved,” and because telephone company entry would introduce a needed

competitor to the video programming market), Reply Comments of National

Telecommunications and Information Administration, Teleport, File No.

13135-CF-TC(3)-92 (May 27, 1992) (removal of § 533(b) would

17

cable markets as a rationale for applying reduced scrutiny to a law

that is at least partially responsible for that very problem.

In this regard, the Solicitor Generai’s claim that cable television

is a “natural monopoly,” Motion to Affirm at 13 — a claim

implying that greater competition in cable markets would be

infeasible and economically ruinous — seriously misstates

Congress’ factfinding. In the 1992 Cable Act, Congress found that

cable television is an unnatural monopoly and that greater

competition should be encouraged." Indeed, the Act was

specifically directed at exclusionary practices barring second

entrants from cable markets. Section 7(a)(1) of the Act amended

47 U.S.C. § 541(a)(1) by providing that “a franchising authority

may not grant an exclusive franchise and may not unreasonably

refuse to award an additional competitive franchise.” 106 Stat.

1483.” Moreover, the Act facilitated entry into cable markets by

municipalities, even in areas where there is already an incumbent

cable provider. See § 7(c), 106 Stat. 1483, codified at 47 U.S.C.

§ 541(f). These provisions are testimony to Congress’ conclusion

that cable markets, although currently concentrated, are not natural

monopolies, and that competition should be encouraged as much as

possible.”"

“significantly increase competition in the video services market, which would,

in turn, yield lower prices to viewers, better service quality, and better

programming diversity”).

'% See, e.g., H.R. Rep. No. 628, 102d Cong., 2d Sess. 46 (1992)

(“consumers would benefit greatly from the existence of two competing cable

systems operating in a given market”).

Prior to the passage of the 1992 Cable Act, commentators and courts

had maintained that “the tendency toward monopoly . . . may well be

attributable more to governmental action — particularly the municipal

franchising process — than to any ‘natural’ economic phenomenon.” Quincy

Cable TV, Inc. v. FCC, 768 F.2d 1434, 1450 (D.C. Cir. 1985), cert. denied,

476 U.S. 1169 (1986); see also Hazlett, The Policy of Exclusive Franchising

in Cable Television, 31 J. Broadcasting & Electronic Media 1, 18 (1987).

” Competing cable systems operate side-by-side in at least 53

communities, see, e.g., 819 F. Supp. at 40 n.16, and some of these

competitive systems have been in piace for 20 years or more. The

government's theory of “natural monopoly” is also belied by its own actions.

18

The rate regulation provisions of the 1992 Cable Act underscore

this conclusion. Congress’ stated policy was to rely on the

marketplace, to the maximum extent feasible, to “promote the

availability to the public of a diversity of views and poeta

through cable television and other video distribution media.

2(b)(1), (2), 106 Stat. 1463. Accordingly, the Act peer :

“preference for competition” (§ 3(a), 106 Stat. 1464, codi ie :

47 U.S.C. § 543(a)) and authorizes rate regulation only [i}f t e

[FCC] finds that a cable system is not subject to effective

competition.” /d. The Act plainly evidences Congress ae

that competition in cable markets is economically feasible and,

indeed, in the interest of American consumers.

For all these reasons, this Court need not and should not oer

this case to squeeze cable or any other technology for the

distribution of ideas into a First Amendment pigeonhole.

Il. THE NATURE OF THE GOVERNMENTAL

RESTRICTION ON SPEECH IS THE

CRITICAL FACTOR IN DETERMINING THE

APPROPRIATE LEVEL OF SCRUTINY

Rather than focusing exclusively or even primarily on the fact

that the speech here is the expression of cable companies, me

Court should follow the usual approach in First Amendment cases:

paying close heed to the nature of the governmental magne in

determining the appropriate level of scrutiny. Under suc =

approach, the Court would refrain from prejudging en t :

might arise not in the context of the must-carry rules, but in su

very different situations as that of § 533(b).

The most critical factor in determining the proper level of First

Amendment scrutiny has always been the nature of the restriction

on speech. Thus, this Court applied strict scrutiny to the cross-

The government has not only expressed its strong beliet that competition ee

exist, but it has also encouraged telephone companies and others to _—

competing video delivery systems in areas that are already served by ca -

see, e.g., Video Dialtone Order, 7 FCC Red 5781 (1992), a step that wou

be futile if it believed that cable was a natural monopoly.

19

burning ordinance in R.A.V. v. City of St. Paul, 112 S. Ct. 2538

(1992), notwithstanding the fact that the racial hate speech at issue

there was completely unprotected, in the sense that its content was

constitutionally proscribable. The Court’s analysis hinged on the

fact that the law was content-based — it singled out “fighting

words” for a special penalty if they concerned “race, color, creed,

religion, or gender.” See also Nollan vy. California Coastal

Comm'n, 483 U.S. 825, 837 (1987) (State can ban shouting “fire”

in a crowded theater, because such speech is unprotected, but

cannot adopt a law that contains “dispensations to those willing to

contribute $100 to the state treasury”).

In the same way, the nature of the restriction — not merely the

character of the medium used to transmit the information — plays

the primary role in determining the appropriate level of

constitutional scrutiny. In Sable Communications, Inc. v. FCC.

492 U.S. 115 (1989), for instance, this Court invalidated a

congressionally imposed, prophylactic ban on indecent interstate

telephone messages on the ground that it “far exceed[ed] that which

is necessary to” achieve the government's interest. /d. at 131.

The Court did not develop a special doctrine governing information

conveyed over telephone lines; it simply took account of the

physical characteristics of telephones in assessing the fit between

the government's asserted interest and the law at issue.

Indeed, this Court has noted, even in the sphere controlled by

Red Lion, that “[{t}he [Federal Communications] Commission has

eschewed direct federal control over discrete programming

decisions,” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 585

n. 36 (1990), and has warned that the contrary approach would

“raise[] ‘serious First Amendment issues.’” /d. (citation

omitted).” In FCC vy. League of Women Voters, 468 U.S. 364

* See also FCC v. WNCN Listeners Guild, 450 U.S. 582, 596 n.32, 597

(1981) (noting the policy, even in the broadcast context, of preserving the

licensee's editorial control over programming); Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 495 (1975) (protecting “freedom of the press” in

broadcast context); Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94, 127 (1973) (rejecting right of access in

part because it “would tend to draw [the FCC] into a continuing case-by-case

determination of who should be heard and when”).

20

(1984), for example, the Court struck down under the First

Amendment a congressionally imposed ban on editorializing by

public television and radio stations. The Court explained that the

scope of the prohibition was “defined solely on the basis of the

content of the suppressed speech.” /d. at 383. Furthermore, the

Court observed that, “in sharp contrast to the restrictions upheld in

Red Lion or in CBS, Inc. v. FCC, which left room for editorial

discretion and simply required broadcast editors to grant others

access to the microphone, [the ban on editorializing] directly

prohibits the broadcaster from speaking out on public issues even

in a balanced and fair manner.” /d. at 385 (emphasis added). In

short, even in the broadcast context, this Court has invalidated

direct bans on speech that are not narrowly tailored to any

legitimate and substantial governmental interest.”

Hence, the nature of the restriction on speech must be the

Court's chief focus. Amici believe that the must-carry rules have

the unconstitutional effect of replacing programming that cable

operators would otherwise choose to carry with that of certain

governmentally-preferred speakers. But it is important to note that

access requirements like the must-carry rules, whatever their

constitutionality, stand on a vastly different footing from laws that

directly ban speech. In short, it is critical to distinguish among (1)

flat bans on speech like § 533(b), (2) access rules that embody

speaker- or content-specific preferences, and (3) nondiscriminatory

access rules. Even if the Government were correct that §§ 534 and

* See, e.g., 468 US. at 392 (“the manifest imprecision of the ban

imposed by [the statute] reveals that its proscription is not sufficiently tailored

to the harms it seeks to prevent to justify its substantial interference with

broadcasters’ speech”); id. at 395 (the government's “interest can be fully

satisfied by less restrictive means that are readily available” and thus the ban

on editorializing “far exceeds which is necessary” to achieve the interest and

“impermissibly sweeps within its prohibition a wide range of speech” that

does not cause the asserted evil); id. at 396 (“The patent overinclusiveness

and underinclusiveness of [the] ban ‘undermines the likelihood of a genuine

[governmental] interest’”) (citation omitted; brackets in original); id. at 398

(“Since the breadth of [the ban on editorializing] extends so far beyond that

which is necessary to accomplish the goals identified by the Government, it

fails to satisfy the First Amendment standards that we have applied in this

area”).

21

535 belong in category (3) rather than (2), such a conclusion could

offer no support to direct bans such as § 533(b).

There is a qualitative difference between access rules — which

directly silence no speech and burden expression only insofar as

distribution capacity cannot be expanded to accommodate additional

speakers — and direct prohibitions on speech. Access rules usually

include new voices without excluding old ones, and accordingly

can be less intrusive ways to further legitimate government

interests without cutting off the free flow of ideas. Thus, the Court

upheld a nondiscriminatory access rule in PruneYard Shopping

Center v. Robins, 447 U.S. 74, 81, 87 (1980) (State may require

shopping center to permit peaceful speech and petition activities),

on the assumption that it did not seriously impede the owner's

ability to get his own message across. See Pacific Gas & Electric

Co. v. Public Utilities Comm'n of California, 475 U.S. 1, 12

(1986) (plurality opinion) ( “Notably absent from PruneYard was

any concern that [the state iaw] might affect the shopping center

owner's exercise of his own right to speak”); id. at 24 (Marshall,

J., concurring in judgment) (“While the shopping center owner in

Prune Yard wished to be free of unwanted expression, he nowhere

alleged that his own expression was hindered in the slightest”).

all subsequent decision by Judge Jackson, who authored the opinion

below upholding the must-carry rules contained in §§ 4 and 5 of the 1992

Cable Act, makes plain the distinction between access rules and prohibitions

on speech. In a separate proceeding, Judge Jackson invalidated a portion of

§ Il(c) of the Act directing the FCC to prescribe rules “establishing

reasonable limits on the number of cable subscribers” a cable operator 1S

authorized to reach through cable systems it owns or in which it has an

attributable interest. Judge Jackson held that “[a]ny governmentally ordained

quota on the number of subscribers a cable operator may reach leaves the

operator with absolutely no intra-medium means of speaking to the remainder

of its potential audience.” Daniels Cablevision, Inc. v. United States, No. 92-

2292, mem. op. at 21 (D.D.C. Sept. 16, 1993). Section 11(c) of the 1992

Act also directs the FCC to “consider the necessity and appropriateness” of

limiting the extent to which cable operators may create cable programming

Addressing this Provision in dictum, Judge Jackson observed that “a

regulation directly limiting the ability of operators to ‘speak’ as programmers

would surely be constitutionally troubling.” Mem. op. at 21 n.17 (emphasis

added) In addition, Judge Jackson struck down, as impermissibly “content-

22

For this reason, the Solicitor General's heavy reliance on

Associated Press v. United States, 326 U.S. 1 (1945), see Motion

of Federal Respondents to Affirm, in No. 93-44, at 10, 11, 22, 26,

Jlustrates the limitations of the Government's position.” In AP,

members of a newspaper cartel were refusing to sell their newswire

service to competing non-members. In holding such conduct

illegal, this Court invoked a generally applicable law (the Sherman

Act). rather than an “industry-specific” rule like the must-carry

requirement, 819 F. Supp. at 40, that singles out a portion of the

press for special regulation. Moreover, the remedy approved by

this Court in AP neither silenced speech nor included speaker- or

content-specific preferences. Quite the contrary: the remedy

attacked the antitrust abuse neutrally and directly, by providing that

related,” provisions regulating indecent programming and requiring a set-aside

for educational programming on direct broadcast satellites. Mem. op. at 15-

16, 18.

28 associated Press — which is, after all, a case about newspapers rather

than cable or broadcast television — also illustrates the need to focus on the

nature of the restriction on speech, rather than on the characteristics of the

medium through which the information ts conveyed.

6 In reviewing “decisions holding that generally applicable laws do not

offend the First Amendment simply because their enforcement against the

press has incidental effects on its ability to gather and report the news,”

Cohen v. Cowles Media Co., 111 S. Ct. 2513, 2518 (1991), this Court

provided an illustrative list of what is meant by “generally applicable laws”

the National Labor Relations Act, Associated Press v. NLRB, 301 U.S. 103

(1937); the Fair Labor Standards Act, Oklahoma Press Pub. Co. v. Walling,

327 US. 186 (1946); laws providing for grand jury subpoenas, Branzburg v.

Hayes, 408 U.S. 665 (1972)); copyright laws, Zacchini v. Scnipps-Howard

Broadcasting Co., 433 U.S. 562 (1977), the antitrust laws, Associated Press

v. United States, 326 U.S. 1 (1945); and non-discriminatory tax laws,

Murdock v. Pennsylvania, 319 U.S. 105 (1943). Unlike §§ 553(b), 534 and

535, all those laws apply to a broad category of businesses as businesses, and

none singles out speech as such for the specific purpose of regulating it

Indeed, this Court has repeatedly rebuffed efforts to characterize a law

singling out expression as nothing more than a “general” economic regulation.

See Minneapolis Star & Tribune Co. v. Minneapolis Comm'r of Revenue, 460

U.S. 575, 581 (1983); Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 112 S. Ct. 501, 509 (1991); Riley v. National Federation

of the Blind of North Carolina, Inc., 487 U.S. 781, 789 n.5 (1988).

23

“AP news is to be furnished to competitors of olu *.ers without

discrimination.” 326 U.S. at 21. This Court carefully noted that

this remedy did not affect either AP’s or its members’ rights to

report or publish what they wished. The remedy did not

“jnterfere[] with freedom ‘to print as and how one’s reason or

one’s interest dictates.’” /d. at 20 n.18. Direct bans on speech,

of course, do not leave a speaker free to express herself as she

pleases.”

| The difference between access rules and direct bans on speech

is especially per in analyzing the difference between the

must-carry rules and § 533(b) because telephone companies

currently subject to neutral common-carrier obligations far pon

extensive than a must-carry rule. As the Bell Companies have

acknowledged with respect to their telephone networks, their

“voluntary dedication of [these] networks to public use precludes

any claim on their part that they have a First Amendment right to

exclude competing information providers from their networks. The

Supreme Court has made clear that, when privately owned facilities

are dedicated to the public, the First Amendment does not

invalidate laws requiring those facilities to be held open on a

nondiscriminatory basis to all speakers.” Thus, Judge Williams

- Other antitrust precedent confirms the crucial distinction between access

rules and direct bans. In Lorain Journal Co. v. United States, 342 U.S. 143

155-56 (1951), for example, a newspaper sought to drive a radio station out

of business by refusing to run ads for those parties that chose to advertise on

the station, the Court found it proper to enjoin this antitrust violation by

requiring access. In Citizens Publishing Co. v. United States, 394 U.S. 131

( 1969), this Court held that a decree ordering one newspaper corporation to

divest the stock of another, and to refrain from certain joint operating

practices such as a “profit pooling arrangement,” did not violate the First

Amendment. The Court commented that “[nJeither news gathering nor news

dissemination is being regulated by the present decree. It deals only with

restraints on certain business or commercial practices” that bear no

significance under the First Amendment. 394 U.S. at 139.

** Brief of the Bell Company Appellants, in United States v. Western

Electric Co., No. 87-5388, at 25 n.84 (D.C. Cir.) (filed Apr. 17, 1989)

(citiag Prune Yard); see also Amicus Brief of Bell Atlantic in National Cable

+a, Ass'n v. United States, No. 92-2495 (D.D.C.) (filed Mar. 9

). _

24

contrasted the constitutionally invalid must-carry rules with neutral

leased access provisions and with requirements that a carrier “serve

all parties that meet neutral criteria for service.” 819 F. Supp. at

§7-58 (dissenting opinion) (using the example of rules that

guarantee telephone long-distance carriers access to local exchange

service).

Recognizing telephone companies’ right to provide video

programming is in no way inconsistent with their common carrier

obligations, since an entity “can be a common carrier with regard

to some activities but not others.” National Ass'n of Regulatory

Utility Comm'rs v. FCC, 533 F.2d 601, 608 (D.C. Cir. 1976)

(opinion of Wilkey, J.); see FCC v. Midwest Video Corp., 440

U_S. 689. 701 n.9 (1979). Telephone companies already originate

electronic information over their own networks in the form of

voice and data messages, including time and weather reports,

traffic updates, and news and financial reports. Their obligation

also to transmit the voice and data messages of third parties on a

common-carrier basis, however, is unaltered. In the same way,

telephone companies that delivered their own video programming

over their common-carrier networks would remain subject to a

nondiscriminatory access obligation.

In sum, amici ask the Court to remain cognizant of the special

nature of the must-carry rules before it. Amici believe that those

rules offend the First Amendment. Even if this Court nevertheless

upholds them, it should make clear that they provide no support at

all to laws that directly ban speech, especially where the silenced

speaker is already subject to a comprehensive access obligation.

25

CONCLUSION

The decision below should be reversed. In any event, this Court

should not prejudge any of the issues that may soon be presented

to it in Chesapeake & Potomac Telephone Co. of Virginia v.

United States and other litigation regarding § 533(b).

KENNETH W. STARR

PAUL T. CAPPUCCIO

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5130

MICHAEL K. KELLOGG

KELLOGG, HUBER & HANSEN

1301 K Street, N.W..

Washington, D.C. 20005

(202) 371-2770

MARK L. EVANS

MILLER & CHEVALIER

655 Fifteenth St., N.W.

Washington, D.C. 20005

(202) 626-6010

MARTIN T. McCUE

900 19th Street, NW.

Suite 800

Washington, D.C. 20006

(202) 835-3114

Counsei for United States

Telephone Association

Respectfully submitted,

LAURENCE H. TRIBE

Counsel of Record

JONATHAN S. MASSEY

1525 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-1767

MICHAEL W. McCONNELL

KENNETH S. GELLER

ALAN E. UNTEREINER

MAYER, BROWN & PLATT

2000 Penn. Ave , N.W.

Washington, D.C. 20006

(202) 463-2000

THOMAS P. HESTER

THOMAS QUARLES

30 South Wacker Drive

Chicago, IL 60606

(312) 750-5200

Counsel for Ameritech

Corporation

| Additional Counsel Listed on Next Page]

JAMES R. YOUNG

JOHN THORNE

MICHAEL E. GLOVER

1710 H Street, N.W.

Washington, D.C. 20006

(202) 392-0895

ROBERT A. LEVETOWN

3603 North Military Road

Arlington, VA 22207

(703) 525-6858

Counsel for Bell Atlantic

Corporation

RAYMOND F. BURKE

GERALD E. MURRAY

1113 Westchester Avenue

White Plains, NY 10604

(914) 644-6424

Counsel for NYNEX

Corporation

JAMES D. ELLIS

LIAM S. COONAN

PAUL G. LANE

175 E. Houston

Room 1258

San Antonio, TX 78205

(210) 351-3449

MARTIN E. GRAMBOW

1401 I Street, N.W.

Suite 1100

Washington, D.C. 20005

(202) 326-8868

Counsel for Southwestern

Bell Corporation

26

WALTER H. ALFORD

WILLIAM B. BARFIELD

Suite 1800

1155 Peachtree St., N.E.

Atlanta, GA 30367

(404) 249-264]

Counsel for BellSouth

Corporation

WARD W. WUESTE

MARCEIL MORRELL

HQEO3J43

P.O. Box 152092

Irving, TX 75015

(214) 718-6314

Counsel for GTE Service

on behalf of its affiliated

domestic telephone companies

RICHARD W. ODGERS

LUCILLE M. MATES

130 Kearny Street

Suite 3659

San Francisco, CA 94108

(415) 394-3550

ALAN F. CIAMPORCERO

1275 Penn. Ave., N.W.

Suite 400

Washington, D.C. 20004

(202) 383-6416

Counsel for Pacific

Telesis Group

MICHAEL J. SHORTLEY III

180 South Clinton Avenue

Rochester, NY 14646

(716) 777-1028

Counsel for Rochester

Telephone Corporation