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

oo,

No. asso) Ss

Supreme Ceurt, U.S.

FILED

IN THE OCT 23 1985

Supreme Court of the United Stdtescerr F. SPANIOL, J

LERK

OCTOBER TERM, 985

>>

NATIONAL ASSOCIATION OF BROADCASTERS, el al.,

Petitioners,

—_—vV.—

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

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COL! MBIA CIRCUIT

BRIEF OF THE CITY OF NEW YORK

AS AMICUS CURIAE IN SUPPORT OF

JOINT PETITION FOR WRIT OF CERTIORARI

NORMAN M. SINEL

PAUL S. RYERSON*

PATRICK J. GRANT

Of Counsel: ARNOLD & PORTER

HADLEY W. GOLD

First Assistant

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

Corporation Counsel (202) 872-6700

Room 6A12 Attorneys for the City of New York

100 Church Street

New York, N. Y. 10007

*Counsel of Record

MORRIS TARSHIS

Director of Franchises

Suite 1307

1 Centre Street

New York, N. Y. 10007

October 23, 1985

tome

IT.

Ill.

TABLE OF CONTENTS

. THE DECISION BELOW WILL PRECIPITATE

RECURRING DISPUTES CONCERNING THE

POWER OF LOCAL FRANCHISING AUTHOR-

ITIES TO REGULATE CABLE TELEVISION

SYSTEMS PURSUANT TO THE CABLE COM-

MUNICATIONS POLICY ACT OF 1984........

THE LOWER COURT’S RULING INVOLVES

AN IMPORTANT ISSUE OF CONSTITU-

TIONAL LAW THAT SHOULD BE RESOLVED

eg IAT A un ee

THE COURT BELOW SHOULD NOT HAVE

RESOLVED THE ULTIMATE SUBSTANTIVE

CONSTITUTIONAL ISSUES ON THE REC-

EE EEE ces Souk awe bane eek N steko

oc ee i RENEE A RS AON OAPI Rae aati eae

PAGE

10

14

il

TABLE OF AUTHORITIES

Cases:

Ashwander v. TVA, 297 U.S. 288 (1936) .............

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

Berkshire Cablevision of Rhode Island, Inc. v. Burke,

571 F. Supp. 976 (D.R.I. 1983), appeal dismissed as

moot, No. 83-1800 (ist Cir. Sept. 24, 1985).........

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

sb ..) PP

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

S. Ct. 2608 (1966)... «6c con00550 eee Liceeeeaan Kas

Coal Exporters Association of the United States, Inc. v.

United States, 745 F.2d 76 (D.C. Cir. 1984) .........

Community Communications Co. v. City of Boulder,

660 F.2d 1370 (10th Cir. 1981), cert. dismissed, 456

U.S. 1601 (1982)... 6. css eeu ae cee

FCC v. National Citizens Committee for Broadcasting,

436 U.S. 775 (19768)... ... 005 44an eee

Hopkinsville Cable TV, Inc. v. Pennyroyal Cabievision,

Inc., 562 F. Supp. 543 (W.D. Ky. 1982).............

Omega Satellite Products Co. v. City of Indianapolis,

694 F.2d 119 (7th Cir. 1962) . ...55555553 eee

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

United States v. Midwest Video Corp., 406 U.S. 649

Cy) rr

ll

1]

11

10

10

iil

Statutes:

Cabie Communications Policy Act of 1984, 47 U.S.C.

§§ 521 et seq.:

ED A nk aca a 6 oa 64 60 CORA RAS KN 2

CRE Os eC aah sb 4604543068 8440 KNEES 6, 8

ONES si Wl kak wa CA bd 60 6 CURE NAA SE EES 6, 8

SIRE are ae A NIE Ol na Mri 6,7

Oe renee ary ee ornare sore 6

ee es ee 6 Nene 6, 8

Regulations:

ee aenes W SUE CEDUD. occ st a ccncnonenscscses 2

Legislative History:

H.R. Rep. No. 934, 98th Cong., 2d Sess. (1984) ...... passim

Other Authorities:

Arthur D. Little, Inc., Prosperity for Cable TV: Outlook

1985-1990—Report to National Cable Television Asso-

SF ig ly SS am A Se 5

Multichannel News, Oct. 7, 1985, at 1, col. 3......... 7

PAGE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-502

—_

NATIONAL ASSOCIATION OF BROADCASTERS, el al.,

Petitioners,

—_—V—_—

QUINCY CABLE TV, INC., ef ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

>

BRIEF OF THE CITY OF NEW YORK

AS AMICUS CURIAE IN SUPPORT OF

JOINT PETITION FOR WRIT OF CERTIORARI

The City of New York (“the City”) files this brief, as amicus

curiae, in support of the petitioners’ prayer that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit entered

herein on July 19, 1985 (768 F.2d 1434).

This brief is filed in accordance with Rule 36.4 of the Rules

of this Court.

INTEREST OF THE AMICUS CURIAE

The City has been involved in franchising and regulating

cable television systems since 1964. The City presently has in

place ten franchises for cable television systems, covering all

areas within the five Boroughs of the City, which have the

2

potential of serving over two million households. The City is a

franchising authority within the meaning of Section 602(9) of

the Cable Communications Policy Act of 1984, 47 U.S.C.

§§ 521 er seq. (“the Cable Act”), and actively participated in

the development of that legislation.’

The City is concerned that, if permitted to stand, the Court

of Appeals opinion will upset the delicate balance between

federal and local regulation of cable television systems that was

achieved in the Cable Act; will leave the law concerning the

scope of enforceable service requirements in cable franchises in

a state of confusion and disarray; and will impede or prevent

franchising authorities from accomplishing fundamental regu-

latory objectives with regard to cable television. For the rea-

sons stated infra, the City respectfully submits that the

decision of the Court of Appeals below was incorrect as a

matter of law and, if permitted to stand, will substantially

impair the ability of local governments (1) to condition cable

television franchises upon the requirement that cable systems

carry local broadcast television signals on a nondiscriminatory

basis; and (2) to enforce other requirements regarding cable

services in the public interest.

SUMMARY OF ARGUMENT

For some twenty years prior to the Court of Appeals

decision below, the Federal Communications Commission

(“FCC”) required, by virtue of its “must-carry” rules (47

C.F.R. §§ 76.57-61 (1984)), that cable system operators carry

the signals of local television broadcast stations. Irrespective of

considerations of competitive parity among broadcasters, the

must-carry rules had the purpose and effect of ensuring that

cable subscribers had ready access to local television stations

licensed to serve them.

l The City is also a licensee of a public television station (WNYC).

Throughout this twenty-year period, the City, as well as

thousands of other local governments throughout the United

States, granted cable franchises with the expectation that—in

addition to whatever other programming services such systems

might carry—they would, at a minimum, facilitate subscribers’

reception of all local broadcast stations, on a nondiscrimina-

tory basis. Cable system operators regularly accepted fran-

chises with this understanding. When, in 1984, Congress

enacted the Cable Act to establish a national policy clarifying

the existing system of local, state and federal regulation of

cable television, the continued existence of the FCC’s must-

carry rules constituted an important centerpiece around which

the regulatory scheme was crafted.

In its decision below, however, the Court of Appeals invali-

dated the FCC’s must-carry rules, on the ground that the rules

impinged upon the editorial discretion of cable system opera-

tors in violation of the First Amendment—primarily because,

in the judgment of the Court of Appeals, the need for the rules

was based on the agency’s “speculation,” “unsubstantiated

intuition,” and “collective instinct,” rather than on an ade-

quate empirical investigation. The City submits that the deci-

sion of the Court of Appeals merits plenary review by this

Court for the following reasons:

First, since it is based firmly on constitutional grounds, the

decision below piaces a cloud over the power of local cable

franchising authorities, such as the City, to require or enforce

provisions similar to the FCC’s must-carry rules in cable

franchises, or to agree upon enforceable franchise provisions

with respect to other kinds of programming services in the

public interest. The uncertainty created by the decision is

particularly ironic and destructive, coming as it does less than a

year after enactment of comprehensive federal cable legisiation

that was intended finally to resolve the scope of permissible

regulation of cable after years of disagreement and inconclu-

sive litigation.

4

Second, the decision involves an important issue of constitu-

tional law that should be resolved by this Court. In deciding

that, for First Amendment purposes, cable television is indis-

tinguishable from traditional print media, the court below

applied an improper and unworkable First Amendment anal-

ysis. Moreover, the decision is in direct conflict with the

decision of at least one other Circuit, and, the City submits, is

inconsistent with the results reached in prior decisions of this

Court and numerous decisions of other lower federal courts.

Third, the Court below should not have purporied to resolve

definitively the ultimate substantive constitvt * sal issues on the

basis of the record before it. By ignoring te less drastic

alternatives for dealing with the deficiencies it perceived in the

factual predicate for the FCC’s must-carry rules, the Court of

Appeals has unnecessarily cast the law of cable regulation into

disarray.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW WILL PRECIPITATE RE-

CURRING DISPUTES CONCERNING THE POWER

OF LOCAL FRANCHISING AUTHORITIES TO REG-

ULATE CABLE TELEVISION SYSTEMS PURSUANT

TO THE CABLE COMMUNICATIONS POLICY ACT

OF 1984

In 1984, many years after the need for comprehensive

federal cable legislation was first observed by this Court,’ and

after extensive discussions and compromises by representatives

of the cable industry and local governments, Congress enacted

the Cable Act. A principal purpose of this legislation was to

establish, for the first time, “a national policy that clarifies the

current system of local, state and Federal regulation of cable

television.” Report of the Committee on Energy and Com-

merce, H.R. Rep. No. 934, 98th Cong., 2d Sess. 19 (1984)

2 See United States v. Midwest Video Corp., 406 U.S. 649, 676 (1972)

(Burger, C.J., concurring).

\

(“Committee Report”). In doing so, Congress intended to

establish a policy that would continue to rely “on the local

franchising process as the primary means of cable television

regulation, while defining and limiting the authority that a

franchising authority may exercise through the franchise

process.” Jd. Specifically, Congress intended that the Cable Act

would “preserve the critical role of municipal governments in

the franchise process.” /d.

The decision below—which fails even to acknowledge the

existence of the Cable Act—is likely to undercut the statutory

role for local franchising authorities established by Congress,

and will have significant adverse effects on the efforts of

franchising authorities to reguiate the services provided on

cable systems in the public interest.

Conventional wisdom holds that, “!bJecause of . . . start-up

costs and the nature of the cable television market. . . , cable

systems have operated largely free from competition.” Berk-

shire Cablevision of Rhode Island, Inc. v. Burke, 571 F. Supp.

976, 986 (D.R.1. 1983), appeal dismissed as moot, No. 83-1800

(Ist Cir. Sept. 24, 1985). While the cause of this situation may

be disputed, the key operative fact is not: without question, the

vast majority of cable television systems in the United States—

indeed, all but a handful—face no competition for subscribers

from other cable television systems.’ As a result, aspects of the

services rendered by these local monopolies have traditionally

been subject to regulation by local governments. In exchange

for granting permission to use public streets to construct a

cable system, many franchising authorities, including the City,

have long sought to condition the granting of such permission

upon the cable operator’s promise to carry certain minimum

programming services.

3 Nor do alternative technologies provide effective competition for

cable systems; the “industry consensus” appears to be that such technologies

“are no match for cable systems being introduced in the same urban

markets.” Arthur D. Little, Inc., Prosperity for Cable TV: Outlook 1985-

1990— Report to National Cable Television Association 19 (1985).

6

Congress expressly recognized and approved this practice in

the Cable Act. For example, Section 624(b)(2)(B) of the Cable

Act authorizes the enforcement of franchise requirements “for

broad categories of video programming or other services.”*

Section 611 of the Cable Act permits the establishment of

requirements in a cable franchise with respect to channel

capacity for public, educational or governmental use. Section

612 requires, independent of the requirements in any iocal

franchise, that cable systems with at least thirty-six channels

designate that a specified percentage of such channels (depend-

ing upon the size of the system) be available for commercial

leasing by unaffiliated persons. In Section 624(f)(2), Congress

also sought to preserve existing FCC regulations regarding the

content of cable services (including the must-carry rules which

the Court of Appeais has now invalidated).

All of these provisions, taken together, reflect an attempt by

Congress to balance ine cable operator’s interest in selecting its

Own programming against both the federal and local interest in

ensuring that cabie systems, which are de facto monopolies,

meet certain minimum service requirements and make available

some reasonable portion of their channel capacity for use by

First Amendment speakers other than the franchised cable

operator alone. Congress did not want or intend monopoly

cable operators to function as the sole arbiters of the program-

ming tha: will or will not be available in cable markets.

The decision below, however, will obstruct operation of the

regulatory scheme contemplated by Congress in several ways.

First, since the decision is firmly premised upon constitu-

tional grounds, it is likely to encourage challenges to the

constitutionality of requirements in franchise agreements, such

as those in effect in the City, which require cable operators, as

a contractual matter, to carry tne very same signals mandated

4 In the case of franchises which precede the effective date of the

Cable Act, such as the City’s franchises, Section 624(c). authorizes the

enforcement of any service requirements in a franchise.

by the FCC rules which the Court of Appeais below has now

struck down as unconstitutional.

Modern cable television systems are capable of accomplish-

ing many communications objectives. But their original func-

tion was, and a fundamental purpose remains, to facilitate the

reception of local broadcast television signals. In many parts

of the City, for example, and particularly in the Borough of

Manhattan—where cable franchises were first granted by the

City in 1970—broadcast television reception is often of poor

and frequently unviewable quality because of the “ghosting”

effect resulting from tail buildings.

Indeed, the City first granted cable franchises for Manhattan

primarily to facilitate the clear reception of local broadcast

television signals. Nevertheless, the decision below might well

be invoked by a cabie operator as grounds for ignoring its

contractual commitment and ceasing to carry local broadcast

television signals or (more likely) deciding to favor the signais

of some iocal stations over others. For example, one fran-

chised cable operator in Manhattan has already dropped the

signal of a local public television station, presumably in re-

liance upon the decision below.°

The decision below also places local governments in a

quandary as to how responsibly to discharge their roles under

the Cable Act. F r example, does the First Amendment de-

mand that franchising authorit*es develop empirical evidence

for particular franchise requirements, such as those mandating

nondiscriminatory carriage of local broadcast television sta-

tions, or does that limitation apply only to the FCC?

Second, the decision below upsets the balance that Congress

struck between federal and iocal regulation of cable services.

In new franchises and renewals of existing franchises, Section

624(b)(2),B) of the Cable Act limits the enforceability of

5 See Multichannel News, Oct. 7, 1985, at 1, col. 3.

8

franchise requirements to merely “broad categories” of video

programming; local franchising authorities may not seek or

enforce requirements in such franchises for specific program-

ming services. In so limiting the authority of focal govern-

ments, Congress at the same time expressly grandfathered the

FCC’s must-carry rules in Section 624(f) of the Cable Act.° In

the absence of the FCC’s must-carry rules, however, it now

may be disputed whether a reasonable definition of local

broadcast signals constitutes one uf the “broad categories” of

video programming that, consistent with the statute, a fran-

chising authority may enforce in a cable franchise.

The decision below is therefore likely to impede the efforts

of local franchising authorities to require, through provisions

in their franchises, the carriage of local broadcast television

signals. Congress anticipated that this fundamental goal of

national cable policy would be achieved, instead, by retaining

the FCC’s existing rules.

Third, if the Court of Appeals’ determination that the

must-carry rules uncc.astitutionally infringe upon the editorial

discretion of the cable cperators is permitted to stand, it is

likely to encourage cable operators to challenge, on similar

grounds, the constitutionality of both public, educational and

gover:mental access channel requirements in cable franchises

that are authorized by Section 611 of the Cable Act and the

commercial leased channel requirements imposed directly by

Section 612.

In enacting the Cable Act, Congress carefully considered the

First Amendment implications and adopted an approach that

Congress believed would secure “the First Amendment right of

6 Section 624(f) grandfathers FCC regulations as in effect on Septem-

ber 21, 1983, and as subsequently amended in a manner consistent with the

provisions of the Cable Act. The legislation histery clearly reflects that the

rules which Congress sought to preserve in the Cable Act expressly included

those which the Court of Appeals has now struck down: “Regulations which

relate to the content of cable service and which remain in effect include the

FCC’s must-carry requirements (47 CFR 76.51 er seq.).” Committee Report

at 70.

es.

the viewers and) «cers to a diversity of information sources,

in the manner |. ..: restrictive on the cable operators’ First

Amendment interests.” Committee Report at 36. Relying ex-

pressly upon the unanimous decision of this Court in FCC v.

National Citizens Committee for Broadcasting, 436 U.S. 775

(1978), which upheld FCC rules that prevented a local daily

newspaper from owning broadcast properties in the commu-

nity in which it published, Congress reasoned that, @ fortiori,

the provisions of the Cable Act should pass constitutional

muster:

“In effect, [the FCC’s] rules completely bar newspapers

and cable systems from speaking through the broadcast

medium in the communities they serve. If these are

permissible, then surely a less restrictive regulation that

does not absolutely ban speech througli the cable me-

dium, but requires only some limited sharing of bot-

tleneck facilities on a content-neutral basis, is also valid.”

Committee Report at 33.

Hence, Congress drafted into the Cable Act provisions

which it intended to strike a balance among the First Amend-

ment interests of subscribers, cable operators and cable pro-

grammers in a manner which involves a minimum of content

regulation and recognizes the special status of cabie operators

as users of a scarce public resource (i.e., the public rights-of-

way). The decision below, however, if permitted to stand, will

cast a dark shadow of uncertainty over this delicate legislative

compromise.’

7 Experience prior to enactment of the Cable Act suggests that the

threat of disruptive litigation to test the validity of various aspects of cabie

regulat'on, in light of the decision below, is far from illusory. For example, in

enacting comprehensive federal cable legislation, Congress expressly ob-

served that, prior thereto, “[mJunicipal authority to franchise and regulate

cable television systems [had] been under an increasing number of challenges

on three fronts: in the courts, at the Federal Communications Commission,

and at the state public utility commissions.” Commitee Report at 19.

10

Il. THE LOWER COURT’S RULING INVOLVES AN IM-

PORTANT ISSUE OF CONSTITUTIONAL LAW THAT

SHOULD BE RESOLVED BY THIS COURT

The Court of Appeals below premised its decision upon its

erroneous conciusion that, for First Amendment purposes,

cable is indistinguishabie from traditional print media. In this

respect, while acknowledging this Court’s admonition that

“differences in the characteristics of new media justify dif-

ferences in the First Amendment standards applied to them,”*

the Court of Appeals found that the “scarcity rationaie” has

no place in evaluating government regulation of cable televi-

sion.

Thus, the Court of Appeals rejected arguments that either

the fact that cable operators require use of public rights-of-way

or the natural monopoly characteristics of cable should in-

fluence the nature of the proper First Amendment analysis. By

implication, the court below likewise rejected the recent judg-

ment of Congress, in enacting the Cable Act, that appropriate

regulation of cable “can enhance speech and promote the goals

of the First Amendment.” Committee Report at 31. Instead,

preferring to ignore the reality of cable markets as they exist in

fact and a long line of cases which recognize the justifications

for different treatment,’ the Court of Appeals chose to proceed

on the theoretical assumption that, for First Amendment

purposes, “there is no meaningful distinction between cable

television and newspapers.’ ” 768 F.2d at 1450.

But to conclude, as did the court below, that cable systems

are not necessarily identical to broadcasters does not mean that

8 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969).

9 See, e.g., Berkshire Cablevision of Rhode Island, Inc. v. Burke, 571

F. Supp. 976 (D.R.1. 1983), appeal dismissed as moot, No. 83-1800 (Ist Cir.

Sept. 24, 1985); Community Communications Co. v. City of Boulder, 660

F.2d 1370 (10th Cir. 1981), cert. dismissed, «56 U.S. 1001 (1982); Omega

Satellite Products Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982);

Hopkinsville Cable TV, Inc. v. Pennyroyal Cablevision, Inc., 562 F. Supp.

543 (W.D. Ky. 1982).

il

they are identical to newspapers. In fact, cable systems possess

a multifaceted character—combininy elements of common car-

riers, utilities and broadcasters, as well as publishers—which

demands its own careful First Amendment analysis.

The decision of the court below to subject cable television to

precisely the same First Amendment test as the print media, the

City suggests, is unrealistic. The decision represents an erro-

neous new approach which will hinder, rather than further, the

development of appropriate First Amendment standards for

cable to achieve the ultimate First Amendment goal of en-

couraging cable systems to contribute to “the widest possible

dissemination of information from diverse and antagonistic

sources.” Associated Press v. United States, 326 U.S. i, 20

(1945). Reasonable requirements that franchised cable systems

provide minimum categories of programming services do not

violate the First Amendment; on the contrary, such require-

ments advance the public’s First Amendment interest in receiv-

ing a diversity of programming.

By invalidating the must-carry rules, on its novel theory, the

Court of Appeals has also declared invalid rules which this

Court held, just over a year ago, to serve an “important and

substantial federal interest” sufficient to justify preemption of

any conflicting state regulation. Capital Cities Cable, Inc. v.

Crisp, _____ U.S. , 104 S. Ct. 2694 (1984). The decision

also directly contradicts the holding of the United States Court

of Appeals for the Eighth Circuit in Black Hills Video Corp. v.

FCC, 399 F.2d 65, 69 (8th Cir. 1968) that the must-carry rules

satisfy the applicable First Amendment standards.

i2

Il. THE COURT BELOW SHOULD NOT HAVE RE-

SOLVED THE ULTIMATE SUBSTANTIVE CONSTI-

TUTIONAL ISSUES ON THE RECORD BEFORE IT

The court below purported not to determine whether “any”

version of the mandatory carriage rules would contravene the

First Amendment, and suggested that the rules may have been

permissible at the time they were drafted, but became unconsti-

tutional only at some unspecified point in the interim when the

FCC’s “collective instinct” was no longer adequate to suffice

for what the Court of Appeals believed to be the agency’s

obligation to “ge: the facts” to substantiate its rules in a more

objective, empirically verifiable manner.

The Court of Appeals decision may articulate instructive

principles of administrative law. Cf. Coal Exporters Associa-

tion of the United States, Inc. v. United States, 745 F.2d 76

(D.C. Cir. 1984). But the issue of whether the FCC drew

supportable inferences from, and took sustainable actions

based upon, the evidence before it need not and should not

have been elevated to the level of a First Amendment question.

The Court of Appeals failed to heed the fundamental rule that

constitutional questions should not be anticipated prematurely,

and should be avoided if there exists an alternative ground

upon which a case might be decided. See, e.g., Ashwander v.

TVA, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring).

A major premise of the Court of Appeals’ far-ranging, consti-

tutional analysis—that the FCC’s rules were not adequately

supported by the factual record—provided such an alternative

and more limited basis for decision which the court below

chose not to address.

Moreover, the record below afforded an extremely unsatis-

factory basis for promulgating broad First Amendment princi-

ples of general applicability. Instead of directing the FCC to

revisit the need for the existing must-carry rules, the court

below in effect conducted its own rulemaking proceeding, and

resolved various disputed issues in the process. Thus, for

13

example, the Court of Appeals made definitive and, the City

believes, erroneous findings with respect to the ease with which

broadcast television stations may bypass cable systems alto-

gether in order to deliver their signals where cable systems

exist, and with respect to whether cable systems tend to be

natural monopolies.

Appellate courts are not well equipped to adjudicate com-

plex, technical questions of fact in the first instance. Neverthe-

less, the court below apparently felt constrained to resolve

disputed factual issues—and hence to prejudice their potential

adjudication in other forums. Moreover, the Court of Appeals

seems to have been oblivious that Congress, in enacting com-

prehensive federal cable legislation in 1984, so recently re-

solved many of these factual issues in a different manner.

The approach taken by the Court of Appeals creates a

significant risk of serious judicial error and raises important

issues concerning the scope of judicial review that warrant

examination by this Court. If the court below was dissatisfied

with the factual basis that appeared in the record for the FCC’s

must-carry rules, it should have required the agency to conduct

further rulemaking proceedings with respect thereto. It should

not have reached out to resolve complex factual issues in a

manner adverse to the validity of rules which constituted the

foundation for cable regulation for two decades. In so doing,

the Court of Appeals has rendered a decision which merits this

Court’s plenary review before it spawns further judicial error

and years of unnecessary litigation in regard to the important

questions involved.

14

CONCLUSION

The petition should be granted.

Of Counsel:

HADLEY W. GOLD

Respectfully submitted,

NORMAN M. SINEL

PAUL S. RYERSON*

PATRICK J. GRANT

ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 872-6700

Attorneys for the City of New York

First Assistant Corporation Counsel

Room 6A12

100 Church Street

New York, New York 10007

MORRIS TARSHIS

Director of Franchises

Suite 1307

1 Centre Street

New York, New York 10007

October 23, 1985

*Counsel of Record