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

\ { Supreme Court, U.S.

FILED

No. 85-502 OCT 25 1985

TOS PP ENIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

NATIONAL ASSCCIATION OF BROADCASTERS, et ai/.,

Petitioners,

Vv.

QUINCY CABLE TV, INC., ef ai/.,

Respondents.

On Joint Petition for Writ of Certiorari to The United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF HOWARD UNIVERSITY

AS AMICUS CURIAE IN SUPPORT OF

JOINT PETITION FOR WRIT OF CERTIORARI

Reed Miller J. Clay Smith, Jr.

Robert Alan Garrett* Professor of Law

Marcia A. Cranberg HOWARD UNIVERSITY

ARNOLD & PORTER SCHOOL OF LAW

1200 New Hampshire Ave., N.W. 2900 Van Ness St., N.W.

Weshington, D.C. 20036 Washington, D.C. 20008

(202) 872-6700 (202) 686-6559

Richard P. Thornell

Vice-President and

General Counsel

HOWARD UNIVERSITY

2400 6th St., N.W.

Washington, D.C. 20059

(202) 636-5580

Attorneys for Amicus

Howard University

*Counsel of Record

October 25, 1985

aaa

” BEST AVAILABLE COPY

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

TABLE OF CONTENTS

REASONS FOR GRANTING WRIT

OF CERTIORARI

CONCLUSION

ee ee ee ee ee ee ee ee ee ee ee

(i)

TABLE OF AUTHORITIES

Page

CASES:

Associated Press v. United States,

320 U.S. & SPSS a 0s 6 ove ewe 18,20

Black Hills Video Corp. v. FCC,

399 F.2d 65 (8th Cir. 1968)..10,12,15

Capital Cities Cable, Inc. v.

Crisp, U.S. , 104

S. Ct. £076 CAMPO o. viv acne cee ii,43

Conley Electronics Corp. v. EFCC,

394 F.2d 620 (10th Cir.), cert.

denied, 393 U.S. 858 (1968)........ 15

FCC v. WNCN Listeners Guild,

450 U.8. SOG (C20GR psc cha ceuwe weve 17

Great Falls Community TV Cable

Co. v. FCC, 416 F.4G a2a0 (our

Cit. DBP) «0665-44300 eee eee ea 15

Omega Satellite Products Co. v.

City of Indiunapolis, 694 F.2d

119 (7th Ghd... Seer se cea wean. beeees 17

Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367 (1969)........ 13,18

Titusville Cable TV, Inc. v.

United States, 404 F.2d

1187 (38 Cis. Siees eae ose eee 16

United States v. Midwest Video

Corp., 406 U:S. GOP (CRP7E) «one cscss 10

United States v. Southwestern

Cabie Co., 392 U.G. Zar Cams: cas 10

(ii)

STATUTES:

Cable Communications Policy

Act of 1984, 47 U.S.C.

Bo) ee See 15

Communications Act of 1934,

47 U.S.C. § 151 et seg...........0--

FCC DECISIONS:

Cable Television Report and

Order, 36 F.C.C.2d 143, on

reconsideration, 36 F.C.C.2d

326 (1972), aff'd sub nom.

American Civil Liberties

Union v. FCC, 523 F.2d 1344

(| ae ee 10

First Report and Order in Docket

Nos. 14895, et al., 38 F.C.C.

bl |} ere eee 6,10

Second Report and Order in Docket

Nos. 14895, et al., 2 F.C.C.2d

Be. | hare err eee ree ee

(iii)

OTHER AUTHORITIES:

Arbitron, Audience Estimates in the

Arbitron Market of Washington, D.C.;

Meter and Diary Measurement

Co ree eT eS eee ee ee eee 3

Cablevision (Sept. 9, 1985).......... 23

F. Lloyd, Cable Litigation: First

Amendment Suits Seen Proliferating,

Cable T.V. and New Media, Vol. III,

a a} | ee err ree ae 15

S. Rep. No. 1043, 95th Cong., 2d

| MG. |) Pere wee re re ee er eee 7

J.C. Smith, Primer on Regulatory

Development of CATV (1950-72),

18 How. G.d. F298 (AFIS) occ ansscsuses 10

(iv)

No. 85-502

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

NATICNAL ASSOCIATION OF BROADCASTERS, et al.,

Petitioners,

Vv.

QUINCY CABLE TV, INC., et al.,

Respondents.

On Joint Petition for Writ of Certiorari to

The United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF HOWARD UNIVERSITY

AS AMICUS CURIAE IN SUPPORT

OF JOINT PETITION

FOR WRIT OF CERTIORARI

Howard University submits this brief,

as amicus curiae, in support cof the

petitioners’ request that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the District of Columbia Circuit entered

on July 19, 1985.

This brief is filed in accordance

with Rule 36.1 of the Rules of this Court.

INTEREST OF THE AMICUS CURIAE

Howard University ("Howard"), which

was created by an act of Congress in 1867,

is the Federal Communications Commission

("FCC" or "“Commission") licensee of Station

WHMM-TV. WHMM-TV is a noncommercial

educational station broadcasting on UHF

Channel 32 in Washington, D.C. As the

nation's only television station licensed

to a predominantly black university, WHMM-TV

provides a substantial amount of programming

geared to the special needs and interests

of minority audiences. The station presents

a unique set of viewpoints to its

multi-ethnic and diverse audience --

viewpointe that otherwise may be given

little exposure by broadcasters or

programmers generally.’

Ever since it began operation in

the Fall of 1980, WHMM-TV has vigorously

pursued its rights under the FCC's "must

carry" rules. Consistent with the rules,

the station has sought carriage on each

of the several cable systems locatea in

the Washington, D.C. market.? WHMM-TV's

1 WHMM-TV airs some of the programming

offered by the Public Broadcasting Service

("PBS"). However, about 80 percent of

WHMM-TV's programming hours are different

from those presented by the other Washington,

D.C., PBS affiliate, WETA-TV.

2 These systems provide cable television

service to approximately 350,000 households.

Arbitron, Audience Estimates in the Arbitron

Market of Washington, D.C.; Meter and Diary

Measurement at p. Int.-1 (May 1985).

=

experience with these systems demonstrates

that, absent the must carry rules, the

station's specialized programming and the

substantial diversity it offers will be

effectively denied to a significant number

of those individuals which the station

is licensed to serve.

Indeed, there is not a single cable

television system carrying WHMM-TV which

was not required to do so under the FCC's

rules. Most of these systems commenced

carriage of WHMM-TV only after the station

had specifically invoked its must carry

rights. Several other systems flatly refused

to comply with WHMM-TV's carriage requests

and to offer their subscribers WHMM-TV

pregramming -- notwithstanding that they

devoted channel space to a number of other

Washington, D.C. television stations with

which WHMM-TV must compete for viewers.

These systems required WHMM-TV to engage

in costly and time-consuming litigation

before the FCC in order to enforce its

rights. One such cable operator, which

has successfully avoided carriage of WHMM-TV

for nearly five years since a carriage

request was initially tendered, is now

pursuing its resistance to WHMM-TV before

a federal court of appeals.’

The refusal of a cable system to

carry WHMM-TV is tantamount to blocking

the station's access to that system's

* St. Charles CATV, Inc. v. FCC, No. 85-1121

(D.C. Cir., filed Feb. 25, 1985). This

case, which also involves constitutional

challenges to the must carry rules, has

been held in abeyance by the Court of Appeals

pending final disposition of the petition

for writ of certiorari here.

e S&S «

subscriber base. Because WHMM-TV is a

UHF station, its signal is, in most cases,

satisfactorily available over-the-air only

to households which have installed an outdoor

URF antenna aimed in the direction of

WHMM-TV's transmitter (located in Bethesda,

Maryland). Cable subscribers are most

unlikely to incur the additional expense

of installing and maintaining a UHF antenna

simply to receive WHMM-TV. In fact, as

the FCC has recognized, "One of the standard

selling points of CATV [cable] service

is the subscriber's ability to dispense

with expensive or unsightly outdoor

antennas."*

“ First Report and Order in Docket Nos.

14895, et al., 38 F.C.C. 683, 702 n.25

(1965).

Even if a cable subscriber did

maintain a UHF antenna, reception of

broadcast signals by cable is technically

superior to over-the-air reception of

broadcast signals, particularly UHF signals.

The result of a cable operator's failure

to carry WHMM-TV is that the unique WHMM-TV

Signal, if available at all in the cable

household, will be far inferior to that

of the other Washington, D.C. stations

which the cable operator has chosen to

carry on his system. *

5 Because of the physical nature of the

UHF and VHF bands, there is already a

Significant technical and economic disparity

between UHF stations, such as WHMM-TV,

and VHF stations. This disparity, which

is a matter of significant Congressional

concern, is known as the "UHF handicap."

See generally S. Rep. No. 1043, 95th Cong.,

2d Sess. 71-2 (1978). Those cable systems

that refuse to carry WHMM-TV and at the

same time carry WHMM-TV's VHF competitors

simply exacerbate the problems associated

with the UHF handicap.

a Fs

In short, the FCC's must carry rules

have been a critical component of WHMM-TV's

efforts to reach the audience it is licensed

to serve. Without these rules, carriage

of WHMM-TV will likely be discontinued

by those cable operators who consistently

have resisted the station and its unique

blend of programming; this, in turn, will

effectively impede or block altogether

WHMM-TV's access to many cable subscribers.

Howard thus seeks reversal of the decision

below and reinstatement of the FCC's must

carry rules.

REASONS FOR GRANTING WRIT OF CERTIORARI

Some twenty years ago the Commission

adopted rules requiring cable operators

to set aside a portion of their "virtually

unlimited channel capacity" (App., p. 34a)§®

for the carriage of local television signals.

The Commission "found that the CATV [cable]

system which fails to carry the local station

on its system has in practical effect cut

off the station from access to CATV

subscribers." Second Report and Order

in Docket Nos. 14895, et al., 2 F.C.C.2d

725, 736 (1966). A principal objective

of the must carry rules was, therefore,

to ensure that cable operators not impede

local broadcasters' access to the audiences

which they are licensed to serve under

the Communications Act of 1934, 47 U.S.C.

§ The abbreviation "App." refers to the

Appendix to the "Joint Petition for Writ

of Certiorari” filed September 23, 1985

by the National Association of Broadcasters,

et al. The above-quoted language is from

the decision of the Court below.

oa @ «

§ 151 et seq.’

The constitutionality of the "must

carry" rules was upheld by the United States

Court of Appeals for the Eighth Circuit

in Black Hills Video Corp. v. FCC, 399

F.2d 65 (1968). And in United States v.

Southwestern Cable Co., 392 U.S. 157 (1968),

this Court affirmed the Commission's

authority to adopt must carry rules because

they promote the Communications Act

objectives of program diversity and localism.

See United States v. Midwest Video Corp.,

7 See First Report and Order in Docket

Nos. 14895, et al., 38 F.C.C. 683, 702

(1965); Cable Television Report and Order,

36 F.C.C.2a@ 143, 173 (1972), on

reconsideration, 36 F.C.C.2d 326 (1972),

aff'd sub nom. American Civil Liberties

Union v. FCC, 523 F.2d 1344 (9th Cir. 1975);

J.C. Smith, Primer on the Regulatory

Development of CATV, 18 How. L.J. 729,

736-47 (1975).

« 100

406 U.S. 649 (1972) (upholding Commission's

authority to require origination of

programming by cable operators). More-

recently, in Capital Cities Cable, Inc. v.

Crisp, U.S. , 104 S. Ct. 2694

(1984), this Court found that the must

carry rules serve an “important and

substantial federal interest" which justifies

preemption of conflicting state regulation.

104 S. Ct. at 2708.

In the decision below, however,

a panel of the United States Court of Appeals

for the District of Columbia Circuit (Wright,

J.) took a different view of the must carry

rules. The lower Court concluded that

te

the rules 1) do 0 in fact serve a

"Substantial or important governmental

interest" (App., pp. 4la-52a), and 2) are

« 13 «=

"grossly overinclusive" because they do

not discriminate among those local stations

which should and should not be carried

according to various factors which the

Court considers relevant (App., pp.52a -59a).

The Court below vacated the must carry

rules in their entirety, declaring that

they constitute an impermissible interference

with cable operators' first amendment right

of “editorial discretion."

The decision below should be reviewed

by the Supreme Court for the following

reasons.

First, Supreme Court review is

necessary to resolve the direct conflict

between the Eighth Circuit in Black Hills

Video Corp. v. FCC, supra, and the District

-.

of Columbia Circuit below concerning the

constitutionality of the must carry rules.

Moreover, it is necessary to resolve the

plain inconsistency between the conclusions

reached below and in Capital Cities Cable,

Inc. v. Crisp, supra. The rules cannot

both serve a substantial governmental

interest for purposes of preemption, as

this Court concluded in Capital Cities,

and at the same time not serve such an

interest for purposes of the first amendment,

as the lower Court concluded.

Second, Supreme Court review is

essential to provide the lower courts with

proper guidance concerning the applicablity

of the first amendment to cable television.

In Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 386 (1969), the Supreme Court

*» 33 =

concluded: "(D]ifferences in the

characteristics of new media justify

differences in the first amendment standards

applied to them." Because the Supreme

Court has never considered the first

amendment in the context of cable television

(App., p. 19a), substantial confusion already

exists as to how the appropriate

constitutional standards should be applied,

e.g., the conflict between the Eighth Circuit

and the District of Columbia Circuit

regarding the constitutionality of the

must carry rules. See also App.,

pp. 19a-23a, where the Court below describes

the conflicting approaches taken by the

courts in first amendment cases involving

cable.

It is particularly important that

the Supreme Court provide the necessary

guidance now because of the multiplicity

of pending and threatened lawsuits involving

first amendment challenges to a variety

of cable regulation.* Absent such guidance,

* See F. Lloyd, Cable Litigation: First

Amendment Suits Seen Proliferating, in

Cable T.V. and New Media, Vol. III, No. 7

at 4-5 (September 1985) (reviewing pending

first amendment cable litigation and

litigation which likely will be generated

as a result of the decision below, including

challenges to several portions of the

recently enacted Cable Communications Policy

Act of 1984, 47 U.S.2. § 501 et seg.)

In addition, a petition has already

been filed with the Commission challenging,

on the basis of the decision below, the

constitutionality of the FCC's cable network

nonduplication rules, which require cable

operators to delete certain distant signal

network programming which simultaneously

duplicates that on a local signal. The

constitutionality of these rules had

previously been upheld in Black Hills Video

Corp. v. FCC, supra, and in the following

cases which relied upon Biack Hills: Great

Falls Community TV Cable Co. v. FCC, 416

F.2d 238 (9th Cir. 1969); Conley Electronics

[Footnote continued on following page]

« 3% «

there is likely to be substantial and

potentially wasteful litigation.

Third, Supreme Court review is

warranted because this case involves

important first amendment issues which

affect not only cable operators, but calso

commercial and noncommercial broadcasters

throughout the nation.

The Court below focused its analysis

solely upon the first amendment rights

of cable operators. As noted above, however,

[Footnote 8 continued from preceding page]

Corp. v. FCC, 394 F.2d 620 (10th Cir.),

cert. denied, 393 U.S. 858 (1968); and

Titusville Cable TV, Inc. v. United States,

404 F.2d 1187 (3d Cir. 1968). Obviously,

the effect of the decision below, unless

reversed, will be to reopen in the federal

courts many cable issues which had long

Since been resolved.

= 16 «

Be eee wee

the very purpose of the must carry ruies

is to ensure that cable operators not abuse

their natural monopolistic position® to

impede local broadcasters' access to the

audiences which they (the broadcasters)

are licensed to serve.** This objective

has its foundation in Communications Act

* See Omega Satellite Products Co v. City

of Indianapolis, 694 F.2d 119 (7th Cir.

1982) (Posner, J.).

+e ~6The Court below refused to accord weight

to the FCC's expert judgment that must

carry rules are necessary to achieve this

objective, apparently because it thought

the agency's judgment was not based upon

empirical evidence. The FCC, however,

specifically relied upon its extensive

experience in implementing legislation

designed tc deal with the problems of UHF

stations (App. p. 7la); no contrary evidence

had ever been presented to the Commission.

Furthermore, the Supreme Court has recognized

that the "Commission's decisions must

sometimes rest on judgment and prediction

rather than pure factual determinations."

FCC v. WNCN Listeners Guild, 450 U.S. 5€8,

594 (1981).

» 179 «

policy, but even more importantly in the

first amendment itself. See Associated

Press v. United States, 326 U.S. 1, 20

(1945) ("Freedom of the press from

governmental interference under the first

amendment does not sanction repression

of that freedom by private interests");'*'

Red Lion Broadcasting Co. v. FCC, supra,

395 U.S. at 387 (The right of free speech

"does not embrace a right to snuff out

the free speech of others").

11 In Associated Press v. United States,

supra, a private news organization charged

with violation of the antitrust laws for

restricting dissemination of news to certain

competitors, claimed that the government's

enforcement of the antitrust laws (much

like enforcement of the must carry rules)

violated its first amendment rights. The

Supreme Court rejected this claim, concluding

that it was appropriate for the government

to take necessary steps to preserve the

free flow of information.

= 16 <

In adopting the must carry rules,

the Commission sought to balence the first

amendment rights of broadcasters to reach

their local audiences without undue

interference, and the rights of cable

operators. With its myopic focus upon

cable operators' rights alone, the Court

below has upset this balance in a manner

that relegates to insignificance

broadcasters’ first amendment concerns.

Such an abrupt judicial reversal of a well-

entrenched agency regulatory framework,

with national and constitutional

implications, deserves consideration by

this Court.

Finally, Supreme Court review is

necessary because the decision beiow will

have a particularly pernicious effect upon

e 19 «

those pubiic broadcasters, such as WHMM-TV,

which provide minority-oriented programming.

As WHMM-TV's actual experience demonstrates,

it is this minority-oriented programming

which cable operators will resist offering.

Unless reversed by this Court, the decision

below will thus frustrate rather than promote

the objectives of the first amendment.

The purpose of the first amendment

is, of course, to ensure "the widest possible

dissemination of information from diverse

and antagonistic sources." Associated

Press v. United States, supra, 326 U.S.

at 20. The must carry rules served that

purpose. They ensured that cable subscribers

had available all local television stations,

» 26 «

without regard to the specific content

of the programming on those stations and

thus without regard to the popularity or

unpopularity of the ideas that might be

expressed. Furthermore, compliance with

the must carry rules did not in fact

foreclose cable operators from offering,

and cable subscribers from receiving, any

particular programming. As the Court below

recognized, cable operators have "virtually

unlimited channel capacity" (App., p. 34a);

thus, the technology is there to permit

carriage of any programming service available

to the cable operator, regardless of the

number of local signals that must be carried.

« 2} «

This conclusion was plainly evident from

the record below. ??

12 There were two petitioners before the

lower court -- Quincy Cable TV, Inc.

("Quincy") and Turner Broadcasting Systems,

inc. ("238").

Quincy Cable expanded its channel

capacity so that it not only was able to

carry all of the programming services that

it wished along with the must-carry signals;

it even had excess channels which were

unused. (App., pp. 126a-127a.) And as

the Court below noted, Quincy, with the

expanded channel capacity, was "willing

to carry" all of the local signals. (App.,

p. 2Ba n.2Z&. )

With regard to TBS, the lower court,

in anecdotal fashion, referred only to

statements by Quincy that it would not

carry TBS programming if required to comply

with the must carry rules. (App.,

m. 24a n.24.) These statements are

contradicted by the facts noted above.

Moreover, TBS did not, in its submission

to the FCC below requesting a rulemaking

proceeding, provide a single example of

any actual instance where a cable operator

was unable to carry the TBS programming

services because of compliance with the

must carry rules. In any event, it should

be emphasized that the TBS services (the

"sSuperstation" WTBS-TV and CNN) reach over

90 percent of the nation's cable households

[Footnote continued on following page]

o 92 «

a

If, however, the sweeping decision

below is not reversed, cable operators

will have unfettered discretion to control

the programming which reaches their

subscribers and thus to deny broadcasters

access to the individuals whom they are

licensed to serve. The likely result is

that cable subscribers will be exposed

to only the most commercially marketable

programming, or to the programming of those

who can afford to pay the cable operators’

price for access. In either case, the

[Footnote 12 continued from preceding page]

Or approximately 34-35 million cable

households (Cablevision, Sept. 9, 1985,

at 40) -- more than 100 times the nr mber

of cable households potentially available

to WHMM-TV. (See note 2, supra.) Clearly,

the must carry rules have not, in any

meaningful respect, hindered TBS' ability

to get its message to the American public.

- 23-

objectives of the first amendment will

be frustrated, and the objectives of the

Communications Act to disseminate broadcast

signals to the widest possible audience,

47 U.S.C. § 151, will be undermined.

CONCLUSION

The "Joint Petition for Writ cf

Certiorari" should be granted.

Respectfully submitted,

Reed Miller

Robert Alan Garrett*

Marcia A. Cranberg

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

Richard P. Thornell

Vice-President and General

Counsel

HOWARD UNIVERSITY

2400 6th Street, N.W.

Washington, D.C. 20059

(202) 636-5580

» 54 =

J. Clay Smith, Jr.

Professor of Law

HOWARD UNIVERSITY

SCHOOL OF LAW

2900 Van Ness St., N.W.

Washington, D.C. 20008

(202) 686-6559

*Counsel of Record

October 25, 1985

» $8. «