Opposition Brief — National Ass'n of Broadcasters v. Quincy Cable TV, Inc.

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Supreme Court, U.S.

,eak B&B

: OCT 25 1968

No. 85-502

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1985

NATIONAL ASSOCIATION OF BROADCASTERS, ef al.,

Petitioners,

Quincy CaBLE TV, INc., et al.,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF RESPONDENT

QUINCY CABLE TV, INC.

IN OPPOSITION TO PETITION

JOHN P. Coe, JR.*

Davin M. SILVERMAN

Cott, Raywm & BRAVERMAN

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 659-9750

Attorneys for Respondent

Quincy Cable TV, Ine.

October 25, 1985

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

rte

QUESTIONS PRESENTED

Those Questions Presented by the Joint Petition are

argumentative and evasive of the issues. The questions

presented are:

1. Whether FCC regulations which, upon private-

party demand, mandate distribution and exhibi-

tion of the programming and commercial adver-

tising messages broadcast by designated tele-

vision stations over respoudent’s cable television

syst-m, a causal effect of which is displacement

and exclusion of other preferred, available com-

munications sources and information, exceed the

constraint imposed, or unlawfully abridge free-

doms protected, under the speech and press

clause of the First Amendment to the U.S. Con-

stitution.

2. Whether FCC regulations which compel that re-

spondent’s cable television system, without com-

pensation, dedicate a significant portion of its

limited channel capacity and electronic distribu-

tion facilities to exhibition of the programming

and commercial announcements of prescribed

television broadcast stations, upon demand of

the station licensees, constitute a taking of re-

spondent’s property in contravention of the due

process clause of the Fifth Amendment to the

U.S. Constitution.

The court below resolved the first Question in the

affirmative and declined to add. ss the second as then

unnecessary to resolution of the case.

LIST OF PARTIES

Respondent here and a petitioner in the court below,

Quincy Cable TV, Inc., is a corporation of the State

of Washington, the stock of which is wholly owned by

a husband and wife. Quincy Cable has no subsidiaries

and its sole business is ownership and operation of a

c-ble television system in the Town of Quincy, Wash-

ington.

Oe St jie

TABLE OF CONTENTS

Page

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

ED ncn cccnncscccccccccces cakes li

TABLE OF AUTHORITIES ...................... iv

OPINIONS BELOW .............................. 1

Seatemuns OF THE CASE .................... 2

REASONS FOR DENYING THE WRIT .......... 5

1. The Issve Of Constitutional Law Was Correctly

Treated By The Court Below ................ )

There Are No Conflicting Decisions Rendered

By Other Federal Courts On The Same Issue... 9

3. The Agency That Promulgated The Must-Carry

Rules Has Declined To Seek Review Of The De-

cision Of The Court Below -.................. 11

CONCLUSION ............. EKSEASECCA SEER S CESS 14

TABLE OF AUTHORITIES

CasEs: Page

Associated Press v. United States, 326 U.S. 1 (1944)... 4

Black Hills Video Corp. v. FCC, 399 F.2d 65 (8th Cir.

ED 4544 nS NACA HAds NOWRA OS Coie eh OkS OOK CRK SS 10

Buckley v. Valeo, 424 U.S. 1 (1976) ................ 7

Capital Cities Cable, Inc. v. Crisp, —— U.S. ——, 104

i ee SED 4.5 Keep nn dunes sddeckeiunkciwess 11

Columbia Broadcasting System, Inc. v. Democratic Na-

tional Committee, 412 U.S. 94 (1973) ........... 6, 7

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

Fortnightly Corp. v. United Artists, 392 U.S. 390

rs er pre reer rer i)

Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir.)

{per curiam), cert. dented, 434 U.S. 829 (1977) ... 11

Lilly v. United States, 238 F.2d 584 (4th Cir. 1956) .... 6

Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir.

1978), aff’d on other grounds, 440 U.S. 689 (1979). 10

National Broadcasting Co. v. United States, 319 U.S.

ee rer tee rrr ee re 6

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

745 F.2d 1396 (9th Cir. 1985), jurisdictional state-

ment filed No. 85-390 (Sept. 6, 1985) .......... 10, 11

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 6

Tele-Communications of Key West, Inc. v. United

States, 757 F.2d 1220 (D.C. Cir. 1985) .......... 10

T'eleprompter Corp. v. C.B.S., 415 U.S. 394 (1974) .... 6,9

Thomas v. Collins, 323 U.S. 516 (1945) .............. 9

United States v. Southwestern Cable Co., 392 U.S. 157

SRE cna ce bAAKCESEs WhGecsteCRSes bUSAuEesEsun 11

TABLE OF AUTHORITIES continued

Page

Feperau Communications CoMMISSION REGULATIONS:

47 C.F.R. § 76.209

IN THE

Supreme Court of the Anited States

OcTosEeR TERM, 1985

No. 85-502

NaTIONAL ASSOCIATION OF BroapcasTERrs, et al.,

Petitioners,

Quincy CaBLeE TV, INc., et ail.,

Respondents.

Petition for Writ af Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF RESPONDENT

QUINCY CABLE TV, INC.

IN OPPOSITION TO PETITION

Respondent Quincy Cable TV, Inc., owner and oper-

ator of a cable television system and the petitioner

below in Case No. 83-1283, opposes the Joint Petition

of National Association of Broadcasters, et al.

OPINIONS BELOW

Since the filing of tne Joint Petition, the opinion

of the court below has been reported in 768 F.2d 1434

(D.C. Cir. 1985).

STATEMENT OF THE CASE

Petitioners accord but one brief paragraph (Jomt

Petition, p. 6)\ to the cable television operations con-

ducted by respondent Quincy Cable and altogether

avoid the context in which the must-carry regulations

of the Federal Communications Commission (‘‘FCC’’)

were applied by the agency to require full-time car-

riage of three commercial broadcast television stations

licensed to Spokane, Washington in circumstances

where Quincy Cable and those persons residing in the

Town of Quincy, had expressed their preference for

access to other, diverse communications over the cable

system’s limited distribution facilities. These missing

facts will be helpful to the Court’s appre*:>*ion of the

issues.

Those brief facts relating to Quincy Cable are accu-

rately set forth in the opinion of the court below (Slip

Op., A., 26a-28a).’ Quincy, a small town in rural Wash-

ington, lies equidistant between Seattle and Spokane

being 125 miles from each, and well beyond the direct

range of television stations broadcasting from either

metropolitan city (Slip Op., A., 26a). Operating a cable

television reception and distribution system of limited

channel capacity, and serving less than 1000 cable sub-

seribers, Quincy Cable sought to exercise its discre-

tion, consistent with that expressed by its subscribers,

to furnish access to a wider diversity of available in-

1 References herein to ‘‘A.’’ refer to the Appendices to peti-

tioners’ Joint Petition with the appropriate page identification.

‘Slip Op.’’ refers to the opinion of the court below as reprinted

in the Joint Petition. ‘‘Quincy’’ followed by a Roman numeral

refers to one of the six decisions of the FCC, as reprinted in the

Appendix te the Joint Petition, pp. 63a-132a.

formation. Specificaliy, Quincy Cable proposed to (i)

retain carriage of three Seattle commercial network

television stations to the west, (ii) delete reception of

three duplicating network-affiliated stations broadcast-

ing from Spokane to the east, and (iii) replace the

then three vacated channels with three entirely new

program services (Slip Op., A., 26a). The three Spo-

kane stations, each the licensee of a VHF television

channel, objected before the FCC asserting that the

must-carry rules afforded them the right of mandated

access to Quincy Cable’s distribution lines for exhibi-

tion of their commercial speech product.”

The FCC held that none of the reasons proffered by

Quincy Cable were sufficient to waive its mandatory

carriage rules and denied the requested relief (Quincy

I, A. T5a-77a). Quiney Cable, proceeding then for the

first time by legal counsel, sought agency reconsidera-

tion both refining its prior factual reasons and making

fundamental free speech and due process assertions

under the First and Fifth Amendments to the U.S.

Constitution claiming a prior restraint on its exercise

of editorial discretion in the selestion, organization

*The FCC’s must-carry rule (47 C.F.R. § 76.57(a)) required

cable television systems to carry certain stations ‘‘on request of -

the relevant station licensee’’ (A., 133a). Thus, the obligation to

carry a particular station is invicked at the option of that station

licensee, i.e., the rule delegates discretion to the licensee as to that.

speech to be distributed over the cable-television medium. A station

licensee’s entitlement to carriage is not dependent upon the content

or quality of its programming. See Slip Op., A. 37a, n. 38 (‘‘relig-

ious programming’’ entitled to must carry). And the rules ‘‘re-

quired carriage . . . irrespective of the number of must-carry

channels already being transmitted, the degree of programming

duplication or the channel capacity of a cable system’’ (/d., A.,

13a).

and presentation of information to be distributed over

its medium, and a devaluation of its business resulting

from compelled occupation of its limited distribution

capacity with unwanted programming resulting in

subscriber dissatisfaction causing a loss of revenue

(Quincy VI, A., 128a).’

The FCC rejected each and every argument ad-

vanced by Quincy Cable, holding, inter alia, that sta-

tions entitled to must-carry status need show no effort

to serve the needs of the cable community (Quincy ITI,

A. 82a); ‘that certain program services which Quincy

now carries ... may allegedly be more popular than

the Spokane affiliates is not ground for waiver’’

(Quincy Vi, A. 132a); that “[n]Jeither are we per-

suaded by Quitcy’s contentions that its obligations to

comply with the mandatory signal carriage rules is

vitiated vecause it already carries three network sta-

tions oa its system, because its subscribers may receive

the Spokane translator stations over-the-air on their

UHF terminals, or because its subscribers allegedly

have no interest in viewing the Spokane signals;’’ *

and ‘‘that our signal earriage policy provides that

mandatery signals have carriage priority over non-

mandatory signals” (Quincy IV, A., 101la-102a).° And

3 Cable television systems, like any media business, operate at

the economic endorsement of the consumer.

* By mandating carriage of duplicating programming over cable-

system lines, the delivery capacity of which is finite, the FCC rule

militates against ‘‘the widest possible dissemination of information

from diverse and antagonistic suurees.’’ Cf. Associated Press v.

United States, 326 U.S. 1, 20 (1944).

* During the course of the proceedings conducted before the FCC

(November 1979 - February 1983), Quincy Cable had expanded the

)

because of its failure immediately to distribute the

Spokane stations as had been directed by an employee

of the FCC, the FCC imposed a forfeiture in the sum

of $5,000 on Quincy Cable (Slip Op., A. 27a). The

Town of Quincy was an intervenor in the court below

supporting the First Amendment position taken by

Quincy Cable.

REASONS FOR DENYING THE WRIT

1. The Issue Of Constitutional Law Was Correctly Treated

By The Court Below

The subject Petition for Writ of Certiorari is jointly

filed on behalf of numerous intervenors below, all of

whom are either licensees or representatives of com-

mercial television broadcast stations that benefit finan-

cially from cable carriage pursuant to the FCC’s must-

earry rules.’ The fundamental flaw underlying the

Joint Petition is that it assumes that broadcast licen-

sees, as First Amendment speakers, are entitled to

delivery-capacity of its cable system beyond the original 12 chan-

nels and offered to carry the three Spokane station signals over the

system’s ‘‘Tier II’’, an o tional level of service to which all of the

system’s users did not elect to subscri’:e (Slip. Op. A. 28a n. 28;

Quincy VI, A. 127a). The FCC, rejecting any such resolution, held

that stations entitled under the rule to must-carry status must be

earried ‘‘on a cable system’s basic tier of service’’ (i.e., that tier to

which all system users must subscribe). Quincy VI, A., 130a. Thus,

the rule not only mandates carriage of specified sources but fur-

ther dictates the manner or order of presentation over the cable

medium.

*The FCC, the agency that promuigated and enforced those

rules, and a respondent below, is not seeking further review of the

decision below. Nor is the United States, the other respondent be-

low, a party here. See Part 3, infra.

uniquely favorable First Amendment treatment be-

cause of their status as ‘‘privileged occupants of a

physically scarce resource,’”’ (Slip Op., A., 3la-32a),

1.€., the broadcast spectrum. That underlying assump-

tion is wrong; and, indeed, it is the converse theory

which this Court has consistently applied. A broad-

caster’s privileged occupancy of the scarce, limited

spectrum justifies and excuses a diminished First

Amendment status, since “[i} is the right of the view-

ers and listeners, not the right of broadcasters, which

is paramount.’’ Red Lion Broadcasting Co. v. FCC,

395 U.S. 367, 390 (1969).’

See National Broadcasting Co. v. United States, 319

U.S. 190, 226-27, 2140-14 (1943) ; Columbia Broadcast-

ing System, inc. v. Democratic National Committee,

412 U.S. 94, 101 (1973) (‘‘ Because the broadcast media

utilize a valuabie and limited public resource there is

also present an unusual order of First Amendment

values.’’) ‘‘[A]dvantages [of a broadcast license] are

the fruit of a preferred position conferred by the Gov-

ernment’’ (Red Lion Broadcasting Co., supra, 395 U.S.

at 400) requiring a balancing of the licensee’s rights

as a ‘“‘public trustee’ (CBS, supra, 412 U.S. at 118).

*This Court, albeit in a copyright context, has functionally

equated cable television reception and distribution of broadcast

signals to that of a television viewer. Fortnightly Corp. v. United

Artists, 392 U.S. 390, 400 (1968) (‘‘The function of CATV sys-

tems has little in common with the function of broadcasters... .

CATV systems receive programs and carry them by private chan-

nels to additional viewers’’ (footnotes omitted) }. See also, Tele-

prompter Corp. v. C.B.S., 415 U.S. 394, 408 (1974) ; and See Lilly

v. United States, 238 F.2d 584, 587 (4th Cir. 1956), (cable service

is ‘‘a mere adjunct of the television receiving set with which it

was connected .. .’’).

Bibi ese iets ioke

That position a’ ~.:ed below, and now here, by the

broadcasting inter +: is the direct opposite of the

“‘searcity’’ theory. For petitioners contend that by vir-

tue of their special status as privileged broadcast

licensees entitled to speak via the public’s scarce air-

waves, they thereby are conferred with a superior First

Amendment right vis-a-vis that of the viewer or the

ordinary citizen, viz., the right to demand that their

speech be governmentaliy preferred over that of all

other First Amendment speakers.* We are aware of

no precedent of this Court condoning a systematic pri-

oritising by government of, or between, fully vrotected

speech sources.® Compare Buckley v. Valeo, 424 U.S.

1, 48-49 (1976) (‘‘[T]he concept that government may

restrict the speech of some elements of our society in

order to enhance the relative voice of others is wholly

foreign to the First Amendment... .’’).”°

SSlip Op., A., 37a (‘‘the more certain injury stems from the

substantial limitations the rules work on the !cable] cperator’s

otherwise broad discretion to select the programming it offers its

subscribers’’).

* The FCC’s must-carry mentality, which explicitly ‘‘ provides

that mandatory signals have carriage priority over non-mandatory

signais’’ (Quincy IV, A., 102a), is unique and without parallel to

any other media application or context.

1° That case most on point is Columbia Broadcasting System v.

Democratic National Committee, 412 U.S. 94 (1973), where the

Court, at the instance of the broadcasting industry, firmly estab-

lished the principle of the licensee’s ‘‘right to exercise editorial

judgment’’ (412 U.S. at 111) and to accord or deny access to its

facilities ‘‘based on its own journalistic judgment of priorities and

newsworthiness’’ (412 U.S. at 118). Ironically, the broadcaster

petitioners here would deny Quincy Cable that same measure of

editorial autonomy in selecting those communications for distribu-

A government regulation which, without subtlety, en-

ables one entrepreneur, by simple demand and without

charge, to commandeer the facilities of another for pur-

poses of distribution and publication of commercial

speech would seemingly create presumptive problems

under both the First and Fifth Amendments to the

Constitution.” The Joint Petition does not discuss

these fundamental concerns inherent to the ‘‘must

carry” scheme.”

tion over its wire-line facilities. Where any cable operator origi-

nates programming it is subject to the identical ‘‘fairness’’ re-

quirements pertaining to a broadcast licensee (47 C.F.R. § 76.209).

11 See, e.g., Slip Op., A., 37a, n. 37 (applying the must-earry

scheme to print media).

12 Amici here, condemning the opinion below, express the fear

that Quincy Cable, or cable systems in generality, are made First

Amendment ‘‘censors’’ or ‘‘gatekeepers’’ of that information to

be distributed over cable-system lines. On analysis this contention

proves a red herring. First, Quiney Cable’s services furnish sub-

seribers access to some 12 televison broadcast stations (Quincy IV,

A., 127a) over which independent signal-sources it exercises no

power of program supervision or alteration. Further, subscribers

obtain access to a wide variety of additiona! non-broadcast enter-

tainment and information sources (Id.). Without Quincy Cable’s

services, residents of Quincy would be restricted to video access to

only the Spokane translator stations (Slip Op., A., 26a, n. 25).

And, thus, Quincey Cable is a major contributor to diversity of

communications within the community. Admittedly, Quiney Cable,

like any media editor (e.g., the television networks or the New

York Times), exercises substantial discretion in the selection and

presentation of those sources for containment in its communica-

tions package. The intent and effect of the First Amendment, how-

ever imperfect, is to bar government, and therefore the FCC, from

making those judgments. ‘‘The very purpose of the First Amend-

ment is to foreclose public authority from assuming a guardianship

of the public mind through regulating the press, speech and re-

ae Semis:

A 0. “qt ia

Licensees of broadcast television stations, like teach-

ers, peace officers, sanitation workers and publishers,

generally make a vaiuable contribu on to the common-

weal. But such licensees, however uniquely privileged

and economically advantaged by their governmental

grant, do not constitute a media elite elevated above

the more pedestrian concerns or principles of the Con-

stitution. The particular speech of a broadcaster, com-

mercial or otherwise, is entitled to no more protection

or governmenta] promotion under the First Amend-

ment than that accorded to all speakers. The funda-

mental fallaev of the must-carry rule, like those argu-

ments of the joint petitioners, is the failure to recog-

nize, or even to consider, these bedrock principles.”

2. There Are No Conflicting Decisions Rendered By Other

Federal Courts On The Same Issue

Contrary to the assertions of petitioners, there is no

conflict among the circuits nor is there any Supreme

ligion.’’ Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,

concurring).

18 Joint petitioners finally urge that the D.C. Circuit’s ‘‘cavalier

dismissal of the interrelationship of . . . copyright and regulatory

issues’’ (Joint Pet., p. 24) somehow misled the court in its First

Amendment analysis. But as this Court has observed:

The FCC has consistently contended that it is without power

to alter rights emanating from other sources, including the

of the Communications Act of 1934, the source of the Commis-

sion’s regulatory power. .

Teleprompter Corp. v. C.B.S., 415 U.S. 394, 406 n. 11 (1974). The

issues before the court below concerned solely an FCC regulation

and its administration by the agency; and such questions do not

entail considerations of a copyright nature.

Court precedent in conflict with the opinion below.

The Eighth Cireuit’s opinion in Black Hills Video

Corp. v. FCC, 399 F.2d 65 (8th Cir. 1968), petitioners’

strongest case in support of their circuit-conflict argu-

ment, was repudiated by that same court ten years

later. The Eighth Circuit had upheld the FCC’s must-

earry rules in Black Hills on the grounds that ‘‘[t]he

Commission’s effort to- preserve local television by

regulating CATVs has the same constitutional status

under the First Amendment as regulation of the trans-

mission of signals by the originating television sta-

tions.’’ 399 F.2d at 69. However, in Midwest Video

Corp. v. FCC, 571 F.2d 1025, 1056 (8th Cir. 1978),

aff’d on othe. grounds, 440 U.S. 689 (1979), that same

court stated:

[W]e have seen and heard nothing in this ease

to indieate a constitutionai distinction between

eable systems and newspapers in the context of

the government’s power to compel public access.

If the Commission has any authority to intrude

upon the First Amendment rights of cable opera-

tors, that authority, as above indicated, is less, not

greater than its authority to intrude upon the

First Amendment rights of broadcasters.

In a footnote, the Eighth Cireuit limited Black Hills

to its facts. 571 F.2d at 1054, n. 71. Indeed, the

opinion below is in complete harmony with the Eighth

Cireuit’s later Midwest Video opinion, as well as with

the D.C. Circuit’s own opinions in Tele-Communcia-

14 See also Preferred Communications, Inc. vy. City of Los

Angeles, 754 F.2d 1396, 1404 (9th Cir. 1985), jurisdictional state-

ment filed No. 85-390 (Sept. 6, 1985) (‘‘Black Hills Video, there-

fore, is a doubtful precedent today’’).

mn 10 hh

tions of Key West, Inc. v. United States, 757 F.2d

1220 (D.C. Cir. 1985) and Home Box Office, Inc. v.

FCC, 567 F.2d 9 (D.C. Cir.) (per curiam), cert. de-

nied, 434 U.S. 829 (1977), and with the Ninth Circuit’s

opinion in Preferred Communications, Inc. v. City of

Los Angeles, supra. In short, there is no arguable con-

flict arnong the circuits.

Nor is there any arguable Supreme Court precedent

upholding the constitutionality of the must-carry rules.

Although this Court has upheld the FCC’s jurisdiction

over cable television in United States v. Southwestern

Cable Co., 392 U.S. 157 (1968), and its preemption of

certain state regulation in Capital Cities Cable, Inc. v.

Crisp, U.S. ——, 104 S.Ct. 2694 (1984), it has

never purported to consider the constitutionality of

the cable must-carry rules.” To the extent that a First

Amendment challenge to cable regulations has been

discussed at all, the issue was termed ‘‘not frivolous”’

by this Court in FCC vy. Midwest Video Corp., 440

U.S. 689, 709, n. 19 (1979).

There is no dispute here as to the FCC’s jurisdic-

tion over cable or its authority to preempt state regu-

lation of signal carriage rules. The only decision made

by the court below is that the current must-carry rules

“are insufficiently tailored to justify their substantial

interference with First Amendment rights’’ (Slip Op.,

A., 60a). There is no surviving judicial precedent in

eonflict with this holding. And the Joint Petition does

not question such finding. See infra, note 17.

In Capital Cities, this Court esplicitly declined to consider

the claim that the FCC’s signal-carriage rules violate the First

Amendment rights of cable operators (104 S.Ct. at 2701, n. 6).

Similarly, the Court in Southwestern noted the absence of a con-

stitutional claim (392 U.S. at 181).

3. The Agency That Promulgated The Must-Carry Rules Has

Declined To Seek Review Of The Decision Of The Court

Below

Neither of the respondents below, the FCC or the

United States, is seeking relief here. In accepting the

decision of the court below, the FCC, by a majority

of its commissioners, formally stated:

The Quincy decision focused very directly on the

First Amendment issues invoived. Because the con-

stitutional analysis as to cable represents a posi-

tive step toward recognizing full First Amendment

protection for all forms of electronic media, we

wilj not challenge it.**

Thus, the FCC, which vigorously defended its rules

below, now fully aequiesces in the constitutional anal-

ysis and findings of the court below. Indeed, the FCC

has decided not even to attempt on its own “‘to recraft

the rules in a manner more sensitive to the First

Amendment cencerns,’’ despite the court’s explicit in-

vitation to the ageney to do so (Siip Op., A., 60a). In

response to such invitation, the FCC stated, “‘we

believe that the better course is to seek an equitable

realigning of free marketplace forces rather than an-

other false equilibrium of intrusions on the rights of

cable operators, broadcasters, and copyright holders”’

(A., 142a).”

18 “Commission Will Not Appeal Quincey Cable TV v. FCC,”’

FCC Public Notice, August 2, 1985 (A., 138a). Thereafter, the

FCC announced on September 10, 1985 that the must-carry rules

were ‘‘vacated’’ (A., 142a).

17 The FCC is, however, currently in the process of accepting

petitions for rulemaking proposing adoption of new must-earry

rules. Indeed, eight of the joint petitioners here subsequently filed

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By its inaction and proclaimed rationale, the FCC,

once the proponent of and strong advocate for the

must-carry rules, acknowledges that such rules were

overbroad, economically unjustified * and, in their pres-

ent form, violative of the First Amendment freedoms

of cable operators, teievision viewers and other pro-

gramming sources seeking cable access for distribution

cf their product. That commercial broadcasters, the

economic beneficiaries of these regulatory excesses,

want the FCC to reestablish those protectionist rules

is not surprising, since ‘‘[t]heir very purpose is to

bolster the fortunes of local broadcasters even if the

inevitable consequence of implementing the goal is to

create an overwhelming competitive advantage over

cable programmers’’ (Slip Op., A., 36a). Loss of a

mere ‘‘competitive advantage”’ does not warrant grant

of the requested Writ.

Joint petitioners here, mere intervenors in the court

below in support of the FCC’s position, are in the

with the FCC on October 4, 1985 their ‘‘joint petition for rule-

making’’ urging, inter alia, that the FCC undertake rulemaking

‘‘eontemplating adoption of new, tailored rules to replace its re-

cently vacated ‘must carry’ rules.’’ Joint petitioner here, Associa-

tion of Independent Television Stations, Inc., filed independently

with the FCC on October 4, 1985 its ‘‘petition for rulemaking’’

seeking ‘‘regulation of cable television carriage of television broad-

east signals after the court’s action in Quincy Cable TV, Inc. v.

FCC, .. .’’. We urge that any redress to which petitioners may

be entitled from the effects of the decision below is now more ap-

propriately addressed in the context of agency rulemaking—a con-

cept in which petitioners seemingly now concur.

8 See Slip Op., A., 16a-18a (‘‘Commission found that its general

economic analysis had failed to substantiate the intuitive fears on

which the rules had been premised since the mid-1960’s’’).

peculiar posture of urging the Court to order that the

government, not here a party, reissue rules, which rules

have been ‘‘vacated’’ (supra, note 15) by uncontested

agency action with the explicit acknowledgment that

they were unconstitutional. As former third-party

beneficiaries of the now-vacated rules, joint petitioners

have no power independent of appropriate FCC action

to effect or urge reinstatement of the rules in question.

If joint petitioners have any remedy at all, their forum

lies more appropriateiy in the now on-going agency

rulemaking (see supra, note 17).

The quarrel of joint petitioners is not with the judg-

ment of the court below but rather with the FCC which,

without objection from any quarter, acquiesced in the

court’s mandate by rescinding the rules in question.

Without a rule, without any rationale for entitlement

to must-carry benefits independent of the former rule,

and without any right to speak here for the FCC or to

maintain or rely upon a regulation which the agency

has formally vacated, joint petitioners have no case.

The fact is that the primary parties below (both peti-

tioners and both respondents) now concur in the judg-

ment below.

—

CONCLUSION

The Joint Petition should be denied.

Respectfully submitted,