Amicus Curiae Brief — Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 360 (2018) (No. 17-1702)

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No. 17-1702

IN THE

Supreme Court of the Mnited Strtex

MANHATTAN COMMUNITY ACCESS CoRP., DANIEL

COUGHLIN, JEANETTE SANTIAGO,

CoRY BRYCE,

Petitioners,

Vv.

DEEDEE HALLECK, JESUS PAPOLETO MELENDEZ,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

AMICUS CURIAE BRIEF OF NCTA — THE

INTERNET & TELEVISION ASSOCIATION IN

SUPPORT OF NEITHER PARTY

Rick C. Chessen Howard J. Symons

Neal M. Goldberg Counsel of Record

Michael S. Schooler Jessica Ring Amunson

Diane B. Burstein JENNER & BLOCK LLP

NCTA — THE INTERNET & 1099 New York Ave., NW

TELEVISION ASSOCIATION Suite 900

25 Massachusetts Ave., NW Washington, DC 20001

Suite 100 (202) 639-6000

Washington, DC 20001 hsymons@jenner.com

(202) 222-2445

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Amicus

Curiae NCTA — The Internet & Television Association

(“NCTA”) states that it has no parent corporation and

no publicly held company holds ten percent or more of

its stock.

CORPORATE DISCLOSURE STATEMENT

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

TABLE OF CONTENTS

L Cable Operators Have First Amendment

Rights That Are Burdened by the PEG-

Channel Requirement.

serene

SOOTHE EEE EEE E EE

Cable Operators Have First Amendment

Rights in the Selection and Transmission

of Cable Programming.

When This Court Last Considered the

PEG-Channel Requirement, It Did Not

Decide the Provision’s Constitutionality. ....

The PEG-Channel Requirement

Significantly Burdens’ the First

Amendment Rights of Cable Operators. .....

Regardless of How It Resolves the Dispute

in This Case, This Court Should Make Clear

in Its Opinion That It Is Neither Holding

Nor Implying That the PEG-Channel

Requirement Is Constitutional.

CONCLUSION

PPP PPro

OEE EEE EEE EEE EEE EERE EE EEE EEE EE EEE EEE EEE EEE EEE EEE EEE EES

evened 6

—_ 9

TABLE OF AUTHORITIES

CASES

Agape Church, Inc. v. FCC, 738 F.3d 397

a Gi Se etrrernereecnentccamsictennensnsnintecsentnnnntenon 13

Cablevision Systems Corp. v. FCC, 597 F.3d

1306 (D.C. Cir. 2010) ..6, 13

City of Los’ Angeles vv. Preferred

Communications, Inc., 476 U.S. 488

(1986) 5

Daniels Cablevision, Inc. v. United States,

835 F. Supp. 1 (D.D.C. 1993), aff'd in part

sub nom. Time Warner Entertainment

Co., L.P. v. FCC, 93 F.3d 957 (D.C. Cir.

1996) =

Daniels Cablevision, Inc. v. United States,

835 F. Supp. 1 (D.D.C. 1993), aff'd in part,

rev'd in part sub nom. Time Warner

Entertainment Co., L.P. v. FCC, 211 F.3d

1313 (D.C. Cir. 2000) 12

Denver Area Educational

Telecommunications Consortium, Inc. v.

FCC, 518 U.S. 727 (1996)..........6, 7, 8, 9, 18, 19, 20

Janus v. American Federation of State,

County, & Municipal Employees,

Council 31, 138 S. Ct. 2448 (2018) ............c.ecceeeeeeee 9

Leathers v. Medlock, 499 U.S. 439 (1991)................ 5,6

Miami Herald Publishing Co. v. Tornillo, 418

Se a ncrtnenisieitcsinissisisontimmpennndscicennetionianiinaannte 18

Pacific Gas & Electric Co. v. Public Utilities

Communication of California, 475 U.S. 1

(1986) 9, 10, 18

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)......... 11

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc., 547 U.S. 47

(2006) - _

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994)................. 6, 8, 10, 11, 16, 17, 18

Turner Broadcasting System, Inc. v. FCC,

Se re I I icteinsienccncctinnnscsntiionintenicntanientnnts 15

STATUTES

Oe es ee ccitreitcnnnniinemammenia 6, 7

Ee a ie cntsieriicninicincmnninenenccenciasnnaninmiidiatenl 6, 7

ee: Oe aicieestetniniensienneneinstneniannnnsesianneinnieniasiain 7

ee a icriicerteccccsatnnnenennenionsinncintenitanenintis 7

ADMINISTRATIVE RULINGS

In re Annual Assessment of the Status of

Competition in the Market for the

Delivery of Video Programming,

Eighteenth Report, 32 FCC Red 568

Re 14

OTHER AUTHORITIES

Jeff Baumgartner, Study: 74% of U.S. TV

Homes Have at Least One Connected TV

Device, Multichannel News (June 8, 2018),

https//www.multichannel.com/blog/study

-74-u-s-tv-homes-have-at-least-one-con

I crcrericetctecennicenttitecmniettttsiitintnaeneenencen 14

Jeff Baumgartner, Virtual MVPDs Ended

2017 with 5.3 Subs: Study, Multichannel!

(Feb. 12, 2018), https://www.multichannel.

com/news/virtual-mvpds-ended-2017-53m

I censirtiirtnsietiniantanisstinsntntatinttensansans 14

DeeDee Halleck, The 1% Visits El Barrio,

YouTube (July 29, 2012), https//www.

youtube.com/watch?v =QEbMTGEQIxc........... 16

Jason Lynch, Nearly 70 Million U-S.

Households Now Have a Connected-TV

Streaming Device, AdWeek (Nov. 16,

2017), https//www.adweek.com/tv-video/

nearly-70-million-u-s-households-now-hav

e-a-connected-tv-streaming-device/ ................... 15

New York City, New York, City Council

Videos (last visited Nov. 28, 2018),

https//councilnyce. viebit.com/ instentotes 17

Press Release, Leichtman Research Group,

Inc., Major Pay-TV Providers Lost About

975,000 Subscribers in 3Q 2018 (Nov. 13,

2018), https//www.leichtmanresearch.

com/major-pay-tv-providers-lost-about-97

5000-subscribers-in-3q-2018/...........c.cececeseseeeeeeeeee 13

Swaminathan Sankaranaryanan &

Balasubramanian Muthuswamy, Infosys,

Virtual Multichannel Video

Programming Distributor: The Game,

Players and the Playing Field (2018),

https//www.infosys.com/industries/comm

unication-services/white-papers/Docume

nts/virtual-multichannel-video-programm

IG. PAF.........eeceeveresesserneneneensnsnnensnsnnsnennsnensensnsnsnnnanees

Erik Forde Ugland, Cable Television, New

Technologies and the First Amendment

After Turner 1 sadcasting System, Inc.

v. F.C.C., 60 Mo. L. Rev. 799 (1995).......--0vs0-000

YouTube by the numbers, https//www.you

tube.com/yt/about/press/ (visited July 22,

INTEREST OF AMICUS CURIAE’

NCTA is the principal trade association of the cable

television industry in the United States. Its members

include owners and operators of cable television

systems serving nearly 80 percent of the nation’s cable

television customers, as well as more than 200 cable

program networks. The cable industry is also a leading

provider of residential broadband service to US.

households.

The immediate question presented by this case is

whether individuals who produce public access cable

programming possess a First Amendment right to have

that programming transmitted over public access cable

channels. But behind this question is the more

fundamental issue of whether the requirement imposed

on NCTA’s members to set aside public access channels

in the first place violates their First Amendment rights

by compelling them to retransmit content over which

they lack all control and that they may not want to

distribute. While the parties have not raised that issue

here, the First Amendment interests of NCTA’s

members will be directly affected by the outcome in

this case regardless of how this Court decides the

' No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae, its members, or its

counsel made a monetary contribution to its preparation or

submission. Both parties have consented to the filing of this

brief.

questions presented. NCTA does not take a position on

how the Court should decide those questions, but urges

the Court to recognize in its opinion that the First

Amendment rights of cable operators are burdened by

the requirement that operators set aside public access

channels, and to clarify that the Court is not deciding

that this requirement is constitutional.

SUMMARY OF ARGUMENT

The case before this Court is framed as a dispute

over the supposedly competing First Amendment

rights of Petitioners, who manage public access cable

channels on behalf of New York City, and Respondents,

who produce original content that they wish to air on

those channels. But this dispute cannot properly be

analyzed without acknowledging the important,

antecedent First Amendment rights of another entity:

the cable operator that owns the network over which

both Petitioners and Respondents claim they are

entitled to exercise control.

Decades ago, Congress passed a statute that

authorizes cable franchising authorities to require cable

operators to cede capacity on their privately owned

cable systems to franchising authorities for “public,

educational, and governmental” (“PEG”) channels,

pursuant to terms and conditions established by the

government. That statute also prohibits cable

operators from exercising any editorial control over

such channels. This Court has held that a cable

operator’s editorial discretion over the programming

offered on its cable system is an exercise of speech

protected by the First Amendment. Forcing cable

operators to relinquish control over PEG channels is a

direct intrusion on those First Amendment rights.

This Court has never been directly presented with

the question (and thus has never decided) whether the

PEG-channel requirement violates the First

Amendment rights of the cable operators that own that

channel capacity, but there is good reason to find that it

does. The PEG-channel requirement mandates that

cable operators must retransmit speech with which

they may vehemently disagree—indeed, even offensive

speech. Moreover, the PEG-channel requirement is

facially content-based. It is aimed at particular classes

of speakers and requires cable operators to retransmit

particular categories of speech based solely on its

content. Finally, even assuming that there was a need

to impose this burden decades ago when cable arguably

exercised “bottleneck” control over programming

delivered to viewers, there is no reason to continue to

impose this burden today, when there are abundant

alternative media to distribute the programming

content that is transmitted over public access channels.

While the question of whether the PEG-channel

requirement is itself constitutional is not directly

before this Court, it is the backdrop against which this

Court is deciding the actual questions presented here.

Regardless of how the Court comes out on these

questions, the First Amendment rights of cable

operators will continue to be burdened. The Court

should recognize that fact in its opinion and should

make clear that in resolving this case, the Court is not

implying or deciding that the PEG-channel

requirement is itself constitutional.

Cable operators engage in protected speech under

the First Amendment when they select the

programming that they wish to transmit to their

subscribers over the channels that they operate. This

Court has never been squarely presented with the

question of whether the PEG-channel requirement

violates those protections, but there can be no question

that it burdens cable operators’ First Amendment

interests. The PEG statute requires cable operators to

transmit and associate with speech that they have not

chosen to transmit and with which they may disagree,

and that obligation is explicitly based on the content of

the speech: cable operators must specifically associate

with public, educational, or governmental

programming.

As such, the PEG-channel requirement’s burden on

cable operators’ First Amendment rights could only be

justified by a compelling governmental interest to

which the requirement was narrowly tailored. Even

assuming that Congress enacted the PEG-channel

requirement decades ago to further a then-legitimate

governmental interest in ensuring cable subscribers’

access to a wide variety of programming choices, the

dramatic changes in the marketplace make it far more

difficult today to justify the burden imposed by that

requirement.

A. Cable Operators Have First Amendment

Rights in the Selection and Transmission of

Cable Programming.

This Court has repeatedly made clear that cable

operators possess First Amendment rights with

respect to the _ selection and _ transmission of

programming over their networks. Cable operators

engage in speech in at least two ways. First, they

themselves produce original content that is transmitted

over the cable systems that they own. Second, with

respect to content produced by others, “cable operators

exercise ‘a significant amount of editorial discretion

regarding what their programming will include.” City

of Los Angeles v. Preferred Commce’ns, Inc., 476 U.S.

488, 494 (1986) (quoting FCC v. Midwest Video Corp.,

440 U.S. 689, 707 (1979)). “Thus, through original

programming or by exercising editorial discretion over

which stations or programs to include in its repertoire,

|a cable operator] seeks to communicate messages on a

wide variety of topics and in a wide variety of formats.”

Id. In these ways, cable television “partakes of” the

“aspects of speech and the communication of ideas as do

the traditional enterprises of newspaper and book

publishers, public speakers, and pamphleteers.” /d.

Cable operators thus are entitled to the full First

Amendment protections afforded to traditional

members of the print media who both produce their

own content and exercise editorial discretion. As this

Court stated in Leathers v. Medlock, 499 U.S. 439

(1991): “Cable television provides to its subscribers

news, information, and entertainment. It is engaged in

‘speech’ under the First Amendment, and is, in much of

its operation, part of the ‘press.” Jd. at 444. Indeed, it

is now so well-settled, that “[t]here can be no

disagreement” that “cable operators engage in and

transmit speech, and they are entitled to the protection

of the speech and press provisions of the First

Amendment.” Turner Broadcasting System, Inc. v.

FCC, 512 U.S. 622, 686-37 (1994); see also Denver Area

Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S.

727, 815 (1996) (Thomas, J., concurring in the judgment

in part and dissenting in part) (noting that the Court

agreed in Turner that “cable operators are generally

entitled to much the same First Amendment protection

as the print media”); Cablevision Sys. Corp. v. FCC,

597 F.3d 1306, 1322 (D.C. Cir. 2010) (Kavanaugh, J.,

dissenting) (noting that cable operators “are similar to

publishing houses, bookstores, playhouses, movie

theaters, or newsstands in the sense that they exercise

editorial control in picking the content they will provide

to consumers”).

B. When This Court Last Considered the PEG-

Channel Requirement, It Did Not Decide the

Provision’s Constitutionality.

Against this backdrop of cable operators’ First

Amendment rights, this case comes to this Court

framed as a dispute over the supposed First

Amendment right of a producer of cable programming

to transmit programming over the channels that have

been commandeered by federal statute for the public’s

use. These channels are known as “public, educational,

or governmental” channels, or “PEG” channels. 47

U.S.C. §581(a), (b). Federal law requires a cable

operator to obtain a franchise from a state or local

government (in this case, New York City) to construct

and operate a cable system to provide cable television

services, see id. §54l(b)(1), and authorizes this

governmental “franchising authority” to require the

cable operator to set aside PEG channels as a condition

of granting or renewing the franchise, see id. § 531(a),

(b). PEG channels can be managed by cable operators,

but generally are managed by the local franchise

authorities themselves or by nonprofit entities like

Petitioner Manhattan Community Access Corporation.

Regardless, and even if they manage the PEG channels

themselves, cable operators are prohibited by statute

from exercising “any editorial control over any public,

educational, or governmental use of channel capacity.”

Id. § 531(e) (emphasis added).

This Court has never directly addressed whether

this statutory requirement for PEG access is an

unconstitutional infringement on cable operators’ First

Amendment rights. In Denver Area, a plurality of this

Court agreed that Congress could not authorize cable

operators to restrict obscene or unlawful content

transmitted over PEG channels. See 518 U.S. 727. But

as Justice Stevens noted, the PEG programmers’ First

Amendment claim in that case “dependied] for its

success on the constitutionality of the underlying access

rights” over the cable operator’s network. /d. at 770

n.2 (Stevens, J., concurring). And, as the separate

opinions in that case made clear, the Court did not

address that antecedent question of whether “the

Government has the authority to impose” the PEG

“requirement|| on cable operators.” /d.; see id. at 820-

21 (Thomas, J., concurring in the judgment in part and

dissenting in part) (“{TJhe constitutionality of... public

access channels is not directly at issue in these cases.”).

Instead, in reaching the plurality decision in Denver

Area, the Court simply “assume[d]” that the PEG

requirement was constitutional. /d. at 770 n.2 (Stevens,

J., concurring). Thus, in its only decision regarding the

PEG-channel requirement, the Court bypassed the

predicate question of whether that requirement

violates the First Amendment rights of cable

operators.

Justice Thomas, however, joined by Chief Justice

Rehnquist and Justice Scalia, wrote separately to

acknowledge the importance of that predicate question

and to recognize the burden the PEG-channel

requirement places on cable operators. As Justice

Thomas explained, obligations that cable operators

carry particular programming “interfere{] with the

operators’ editorial discretion by forcing them to carry

broadcast programming that they might not otherwise

carry.” Id. at 816 (Thomas, J., concurring in the

judgment in part and dissenting in part).’ Indeed,

“(t]here is no getting around the fact that . . . public

access [is] a type of forced speech.” /d. at 820.

* The PEG-channel requirement also “burdenis] cable

programmers by reducing the number of channels for which

they can compete.” Turner, 512 U.S. at 645.

C. The PEG-Channel Requirement Significantly

Burdens the First Amendment Rights of

Cable Operators.

The PEG-channel requirement is constitutionally

suspect not only because it is forced speech, as Justice

Thomas recognized in Denver Area, but also because it

is facially both content-based and speaker-based and

because it cannot be justified in light of today’s market

conditions.

The freedom to refrain from speaking is, of course,

as protected as the freedom to speak. Denver Area, 518

U.S. at 821 (Thomas, J., concurring in the judgment in

part and dissenting in part); see also Janus v. Am.

Fed’n of State, Cty., & Mun. Employees, Council 31,

138 S. Ct. 2448, 2464 (2018) (“When speech is compelled

... individuals are coerced into betraying their

convictions. ... Compelling a person to subsidize the

speech of other private speakers raises similar First

Amendment concerns.”); Rumsfeld v. Forum for Acad.

& Institutional Rights, Inc., 547 U.S. 47, 61 (2006)

(“Some of this Court’s leading First Amendment

precedents have established the principle that freedom

of speech prohibits the government from telling people

what they must say.”); Pac. Gas & Elec. Co. v. Pub.

Utils. Comm’n of Cal., 475 U.S. 1, 16 (1986) (plurality

opinion) (“For corporations as for individuals, the

choice to speak includes within it the choice of what not

to say.”).

When cable operators are forced to carry speech

over which they cannot exercise any editorial control,

there is a significan’ risk that cable subscribers—the

customers on whom cable operators rely—will

incorrectly attribute the speech to the cable operators,

assuming that the cable operators have chosen to

transmit the programming that appears on those

channels. This results in a significant harm to cable

operators.’ See id. at 15 (concluding that regulatory

requirement that utility allow third parties to

communicate messages in utility’s billing envelopes

“impermissibly requires [the utility] to associate with

speech with which [it] may disagree,” because the

utility “may be forced either to appear to agree with

[the third party’s] views or to respond”).‘

* For example, a cable operator was forced to carry

programming from an organization classified as an active

hate group by the Southern Poverty Law Center that

encouraged violence, including gruesome beatings and

beheadings. Another was forced to air a program in which a

candidate for a local political office gossiped about opposing

candidates’ personal lives. Other examples abound. Cable

operators ofte’. must respond to customer complaints

regarding programming that is transmitted on PEG

channels.

‘In Turner, this Court rejected the argument “that cable

viewers would assume that the broadcast stations carried on

a cable system convey ideas or messages endorsed by the

cable operator.” Turner, 512 U.S. at 655. But that

conclusion was based on the specific features of broadcast

stations that render them recognizable to consumers as

distinct from cable operators. See id. From a subscriber's

perspective, there is a less clear demarcation between the

programming that runs on PEG channels and the

programming that runs on channels managed by the cable

operator.

Moreover, the PEG requirement is particularly

problematic because, as commentators have noted, it is

“content-based on [its] face.” Erik Forde Ugland,

Cable Television, New Technologies and the First

Amendment After Turner Broadcasting System, Inc. v.

F.C.C., 60 Mo. L. Rev. 799, 837 (1995). Facially, the

statute singles out “particular speech because of the

topic discussed or the idea or message expressed.”

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227

(2015). The PEG-channel requirement compels cable

operators to transmit certain types of content—

programming dealing with public, governmental or

educational issues. The statute thus speaks to the

content of the speech transmitted, not merely the

mechanism of transmission.

While forcing cable operators to speak is

constitutionally suspect, doing so based on the content

of the forced speech and the identity of the speaker is

all the more so. “A law that is content based on its face

is subject to strict scrutiny regardless of the

government’s benign motive, content-neutral

justification, or lack of ‘animus toward the ideas

contained’ in the regulated speech.” /d. at 2228. Asa

result, “[cjontent-based laws ... are presumptively

unconstitutional and may be justified only if the

government proves that they are narrowly tailored to

serve compelling state interests.” /d. at 2226.

Similarly, laws such as the PEG-channel requirement

“favoring some speakers over others demand strict

scrutiny” specifically because “the legislature’s speaker

preference reflects a content preference.” Turner, 512

U.S. at 658; see also Reed, 135 S. Ct. at 2230-31.

Even assuming there was a _ compelling

governmental interest in providing a platfrm for

public, educational, and governmental prograriming on

cable systems when the PEG statute was originally

enacted, there does not appear to be any such

compelling interest today. This Court found in Turner

that, in the 1980s and early 1990s when the PEG-

channel requirement was imposed, “the physical

connection between the television set and the cable

network [gave] the cable operator bottleneck . . .

control over most (if not all) of the television

programming that is channeled into the subscriber’s

home.” Jd. at 656. As a result, “a cable operator [could]

prevent its subscribers from obtaining access to

programming it chooses to exclude.” /d.

In light of cable’s “bottleneck” control, “(t]he PEG

... provisions were enacted to .. . afford|] speakers

with lesser market appeal access to the nation’s most

pervasive video distribution technology,” and to

“lejnablle] a broad range of speakers to reach a

television audience that otherwise would never hear

them.” Daniels Cablevision, Inc. v. United States, 835

F. Supp. 1, 6 (D.D.C. 1993), aff'd in part sub nom. Time

Warner Entm’t Co., L.P. v. FCC, 93 F.3d 957 (D.C. Cir.

1996), and affd in part, rev'd in part sub nom. Time

Warner Entm’t Co., L.P. v. FCC, 211 F.3d 1313 (D.C.

Cir. 2000).

That rationale—which the Court used in the 1990s

to justify a similar intrusion on cable operators’ First

Amendment rights in the Turner cases upholding the

“must-carry” provisions—no longer applies. As then-

Judge Kavanaugh recognized several years ago in his

concurring opinion in Agape Church, Inc. v. FCC, 738

F.3d 397 (D.C. Cir. 2013): “In the two decades since

Congress enacted the Cable Act of 1992, the video

programming marketplace has radically transformed.

Cable operators today face intense competition from a

burgeoning number of satellite, fiber optic, and

Internet television providers—none of whom are

saddled with the same program carriage and non-

discrimination burdens that cable operators bear... .

Cable operators ‘no longer have the bottleneck power

over programming that concerned the Congress in

1992.”” Id. at 413-14 (Kavanaugh, J., concurring)

(quoting Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir.

2009)). Indeed, of the seven multichannel video

programming distributors (“MVPDs”) that had over

one million subscribers at the end of the third quarter

of 2018, only four were cable companies—one was a

telephone provider (Verizon Fios), another a satellite

provider (DISH Network), and the third a combined

telephone and satellite provider (AT&T).’

In today’s dynamic marketplace, consumers can

readily access video content not only from MVPDs but

“through a variety of Internet applications, such as

YouTube and Hulu,” Cablevision Sys. Corp., 597 F.3d

at 1316 (Kavanaugh, J., dissenting), a list that only

* Press Release, Leichtman Research Group, Inc., Major

Pay-TV Providers Lost About 975,000 Subscribers in 3Q

2018 (Nov. 13, 2018), https://www.leichtmanresearch.com

/major-pay-tv-providers-lost-about-975000-subscribers-in-

3q-2018/. s

continues to expand, and includes Netflix, Amazon

Prime Video, and other popular web-based video

programming options.’ Online video providers known

as “virtual” MVPDs now compete with cable operators

to provide full-fledged channel line-ups, including

broadcast and cable channels as well as on-demand

programming.’ While, in the past, these online services

were accessible only on computers, today’s digital

television sets include multiple connectors for

peripheral devices that provide ready access to these

services.” So-called “smart” TVs also come preloaded

* See also, e.g., In re Annual Assessment of the Status of

Competition in the Market for the Delivery of Video

Programming, Eighteenth Report, 32 FCC Red 568, 591

755 (2017); YouTube by the numbers, https//www.you

tube.com/yt/about/press/ (visited Dec. 7, 2018) (“Over 1.9

Billion logged-in users visit YouTube each month and every

day people watch over a billion hours of video and generate

billions of views.”).

" See, e.g., Jeff Baumgartner, Virtual MVPDs Ended 2017

uith 5.3 Subs: Study, Multichannel News (Feb. 12, 2018),

https//www.multichannel.com/news/virtual-mvpds-ended-20

17-53m-subs-study-418107; Swaminathan Sankaranaryanan

& Balasubramanian Muthuswamy, Infosys, Virtual

Multichannel Video Programming Distributor: The Game,

Players and the Playing Field (2017), https//www.infosys.

com/industries/communication-services/white-papers/Docu

ments/virtual-multichannel-video-programming.pdf.

* Jeff Baumgartner, Study: 74% of U.S. TV Homes Have at

Least One Connected TV Device, Multichannel News (June

8, 2018), https//www.multichannel.com/blog/study-74-u-s-tv-

homes-have-at-least-one-connected-tv-device.

with apps—and permit direct downloading of new

apps—that easily connect to many of these services,

rendering even a peripheral device unnecessary.’ And

all televisions today provide the capability to switch

easily between and among online and MVPD services

with a simple click on a remote control.”

Moreover, television is no longer the only means to

obtain video programming. Wireless communications

providers increasingly allow their customers to access

video content online and on the go—completely

bypassing both their local internet and cable providers.

Smartphones and tablets empower the consumption of

video whenever and wherever consumers want it.

This dynamic marketplace could not have been

envisioned when the PEG-channel requirement was

enacted and many of the aforementioned services did

not even exist. Today, this intense competition among

distributors of video programming for consumers

means that a cable operator can no longer “prevent its

“Jason Lynch, Nearly 70 Million U.S. Households Now

Have a Connected-TV Streaming Device, AdWeek (Nov. 16,

2017), https//www.adweek.com/tv-video/nearly-70-million-u-

s- households-now-have-a-connected-tv-streaming-device/.

Thus, this Court’s determination in Turner Broadcasting

System, Inc. v. FCC, 520 U.S. 180 (1997), that “it is rare for

|cable subscribers] ever to switch” from cable to over-the-air

broadcast television, id. at 220 (quoting S. Rep. No. 102-92,

at 62 (1991)), even if accurate in 1997, no longer accurately

describes cable subscribers’ realistic alternative television

programming options.

subscribers from obtaining access to programming

[that the cable operator] chooses to exclude.” Turner,

512 U.S. at 656. It also means that cable operators,

alone among all of these providers of video

programming services, are uniquely subject to onerous

carriage obligations that place them at a competitive

disadvantage based on outdated evaluations of the

market in which they operate.

This increase in alternative distribution platforms is

available not only to providers of commercial

programming, but also to the producers of original

programming of the type that previously might have

had an outlet only on PEG channels. Today, Americans

who want to distribute their own programming have

instantaneous access to millions of “channels” and the

ability to communicate with the world by uploading

their own video content. Websites like YouTube allow

users to upload, for free, original video content. That

content can and often does reach far more viewers than

a PEG channel. Individuals, educational institutions

like public schools and universities, and governmental

institutions can—and often do—use these web-based

platforms for distributing video content to interested

members of the public." Many local governments now

provide online access to both live streams and

'' Indeed, Respondents’ programming is available on

YouTube, acutely demonstrating cable operators’ lack of

bottleneck control over that speech. See DeeDee Halleck,

The 1% Visits El Barrio, YouTube (Wuly 29, 2012),

https//www.youtube.com/watch?v =QEbDMTGEQI xc.

downloadable archived videos of local government

meetings that previously were made available only on

public access television. See, e.g., New York City, New

York, City Council Videos, https://councilnyc.viebit.

com/ (last visited Dec. 10, 2018). As that example

illustrates, local governments, educational institutions,

and individuals can (and do) now easily provide content

to interested citizens in ways that are far more user-

friendly than a PEG channel. In short, ary concern

over cable’s programming “bottleneck” in 1992 has

been rendered obsolete by ‘he introduction of satellite

broadcasting and the advent of the internet.

This changed media landscape renders untenable

the claim that the PEG-channel requirement is

necessary to serve a governmental interest in

providing access to speakers who would otherwise be

unable to reach cable consumers. In today’s media

market, those speakers could reach that audience in

numerous ways other than through a public access

channel.”

“In Turner, this Court held that intermediate, rather than

strict, scrutiny applied in reviewing the “must-carry”

statute that requires cable operators to set aside channels

for broadcast stations like the local affiliates of NBC or CBS.

Turner, 512 U.S. at 636-63. Importantly, however, that

holding depended on the very technological features of cable

television and the video programming market that, as

explained in the main text, are no longer applicable today.

Turner, 512 U.S. at 656. Today, for the reasons explained

above, the appropriate standard of review for assessing the

constitutionality of PEG channels would be the strict

As the foregoing makes clear, the dispute before

this Court is somewhat artificial for the very reasons

Justice Thomas recognized in Denver Area. See 518

U.S. ai 820-22 (Thomas, J., concurring in the judgment

in part and dissenting in part). Cable operators, not the

parties before the Court, have the real First

Amendment rights at stake. Here, just as in Denver

Area, “it is the cable operator, not the access

programmer, whose speech rights have been

infringed.” Id. at 824 (footnote omitted).

Respondents come to this Court’ essentially

asserting a First Amendment right to have their

programming distributed on PEG channels. But “the

programmer's right to compete for channel space is

derivative of, and subordinate to, the operator's

scrutiny the Court applied in Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241 (1974), and Pacific Gas & Electric

Co., 475 U.S. at 11 (plurality opinion). In any event, given

the panoply of options for consumers and producers of video

programming today, even under Turner's intermediate

scrutiny, it will be difficult for the government to explain

how mandating carriage for PEG channels and speakers

does not “burden substantially more speech than is

necessary to further the government’s legitimate interests.”

Turner, 512 U.S. at 662 (quotation marks omitted).

editorial discretion.” /d. at 816-17. Respondents,

“{ljike a freelance writer seeking a paper in which to

publish newspaper editorials . . . [are] protected in

searching for an outlet for cable programming, but

halve] no freestanding First Amendment right to have

that programming transmitted.” Id. at 817.

Accordingly, “ijt is not intuitively obvious that the

First Amendment protects the interests [Respondents |

assert.” Id.

Petitioners, in contrast, come to this Court

asserting that they are not state actors bound by the

First Amendment and are simply private actors

operating on a private cable system. But Petitioners

miss the point. Any right they have to exercise (or not

exercise) editorial discretion is statutorily created by

the PEG-channel requirement and therefore comes at

the expense of the editorial discretion of the cable

operator. As Justice Thomas correctly observed in

Denver Area, “the Court has not recognized, as entitled

to full constitutional protection, statutorily created

speech rights that directly conflict with the

constitutionally protected private speech rights of

another person or entity.” /d. at 820.

In short, all parties before the Court “must concede

that cable access is not a constitutionally required

entitlement and that the right [Respondents] claim to

... public access has, by definition, been

governmentally created at the expense of cable

operators’ editorial discretion.” Jd. at 821-22. “Just

because the Court has apparently accepted, for now,

the proposition that the Constitution permits some

degree of forced speech in the cable context does not

mean that the beneficiaries of a Government-imposed

forced speech program enjoy additional First

Amendment protections beyond those normally

afforded to purely private speakers.” /d. at 822. Here,

just as in Denver Area, the question posed by the

parties is whether there have been “improper

restrictions on their free speech rights,” but “the

proper question is whether the [PEG requirement is

an] improper restriction| |] on the [cable] operators’ free

speech rights.” /d.

Amicus takes no position on the actual questions

presented by the parties. But it is important to

recognize that, however this Court resolves those

questions, it is likely to exacerbate the already

substantial harm to cable operators’ protected speech

interests. If the Court rules for Petitioners, it will

further cement Petitioners’ control over channel

capacity that rightly belongs to cable operators, but

over which the operators are prohibited from

exercising any editorial discretion. And if the Court

rules for Respondents, it means that no one will have

the right to exercise editorial discretion over the

programming carried on PEG channels, increasing the

risk that they will carry programming that is not only

of little interest or value to a cable operator’s

customers, but also is offensive to those customers.

Kither way, cable operators are harmed further by the

already burdensome PEG-channel requirement.

CONCLUSION

This Court should ensure that its decision makes

clear that it is not implying or deciding that the PEG-

channel requirement is constitutional and that its

decision acknowledges cable operators’ important First

Amendment rights to exercise editorial control over

the programming they transmit to subscribers.

Respectfully submitted,