# Opposition Brief — National Ass'n of Broadcasters v. Quincy Cable TV, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0784%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1169 ## Text 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, v. 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 i 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. i 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 ................ ) bo 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 iv 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 V 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, v. 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). 2 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. 3 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). 4 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. 6 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 7 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- 8 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 9 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 Copyright Act ... This position is consistent with the terms 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. 10 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 11 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). 12 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 a ee ee ee ee ee ae ee a a. oS ee ish Se SU ee Mk i NS i PME ates 0 4 0 De, Oe ee EP ar ot ea hae faint apt. tO PE OHA | acter