Opposition Brief — Office of Communication of the United Church of Christ v. Federal Communications Commission

Nos. 87-1487,87-1506,

87-1510. and 87-1551;

SPANIOW, ee, -

es ma TERK ;

IN THE saree

Supreme Court of the Gnited States

OCTOBER TERM, 1987

OFFICE OF COMMUNICATION OF THE

UNITED CHURCH OF CHRIST,

“ Petitioner,

vi

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Respondents.

CORPORATION FOR PUBLIC BROADCASTING, et al.,

Petitioners,

Vv.

CENTURY COMMUNICATIONS CORP., e¢ al.,

Respondents.

Petitioner for Writ of Certiorari to the United States

Court of Appeals For the District of Columbia Circuit

CONSOLIDATED BRIEF OF RESPONDENTS

CENTURY COMMUNICATION CORP., ET AL.

IN OPPOSITION TO THE PETITIONS

FOR WRIT OF CERTIORARI

JOHN P. COLE., JR.*

COLE, RAYWID & BRAVERMAN

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 659-9750

Attorney for Respondents

Century Communications

Corp., et al.

April 18, 1988

*Counsel of Record

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

Those Questions suggested by Petitioners are ar-

gumentative and evasive. The Questions presented

are:

QUESTIONS PRESENTED

1. Whether FCC regulations which classify

speakers and, upon private-party demand,

mandate distribution and exhibition-for-

mat of the broadcast programming and

commercial advertising messages of select

class members over respondents’ closed-

circuit cable television systems, a causal

effect of which is displacement and exclu-

sion of other “‘equally protected’’ speakers

and communications, exceed the con-

straint imposed, or unlawfully abridge

freedoms protected, under the Speech and

Press Clause of the First Amendment to

the U.S. Constitution.

. Whether FCC regulations which compel

that respondents’ cable television systems,

without compensation, dedicate a signifi-

cant portion of their privately owned, fi-

nite transmission capacity and electronic

distribution facilities to exhibition of the

programming and commercial announce-

ments of prescribed television _broadcast

stations, upon demand of the station li-

censees, constitute a taking of

respondents’ property in contravention of

the Due Process and Just Compensation

Clauses of the Fifth Amendment to the

U.S. Constitution.

il

LIST OF PARTIES

Joint respondents here, joint petitioners in the court

below, each of which owns and operates cable tele-

vision systems, are:

CENTURY COMMUNICATIONS CORP.

CHASCO CABLEVISION, LTD.

CLEARVIEW CABLEVISION

ASSOCIATES II

COLUMBIA ASSOCIATES, L.P.

DANIELS & ASSOCIATES, INC.

LANDMARK CABLEVISION

ASSOCIATES

MONMOUTH CABLEVISION

ASSOCIATES

MASADA COMMUNICATIONS, INC.

NATIONAL CABLESYSTEMS, INC.

OCB CABLEVISION, INC.

OCEAN ASSOCIATES

RIVERVIEW CABLEVISION

ASSOCIATES

ST. CHARLES CATV, INC.

UNITED CABLE TELEVISION CORP.

The stock of respondents Century Communications

Corp. and United Cable Television Corp. are publicly

traded. All other respondents are privately-held busi-

ness entities. Collectively, these joint respondents op-

erate more than 200 separate cable television systems

throughout the United States serving in excess of 2.5

million subscribing homes.

TABLE OF CONTENTS

Page

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I MINIT 5.15 ccacccancnscccsnscmesencdseunsacceesce ill

TABLE OF AUTBORITIES .........:00:cccccccsccccccocccccccccecsss iv

SI RII oc cacscnetnssicesscnnnovssensencocbumcaanacers

STATEMENT OF THE CASE o...........ccccccccsesessessesecceees 3

REASONS FOR DENYING THE WRIT .........ccccccccccceeeee 10

1. O'Brien, On Its Face, Is Inapposite to Re-

view of those FCC Regulations at Issue .... 10

A. The “Constitutional Power of the Gov-

Et FRET ea ea ce Ee 11

B. The “‘Substantiality” of the ‘““Governmen-

I 13

C. The Relationship of the ‘Governmental

Interest” to Speech .............cccccccccscccsccees 14

D. Must-Carry As an “Incidental Restriction

on Alleged First Amendment Freedoms”

2. The Court Below Reached the Correct Con-

clusion, and Indeed the Only One It Could,

on the First Amendment Question ............. 23

3. There Are No Conflicting Decisions Ren-

dered by Other Federal Courts on the Same

SHRI actos SOO Ne OO 26

a 28

iv

TABLE OF AUTHORITIES

CASES: Page

Black Hills Video Corp. v. F.C.C., 399 F.2d 65

(Sth Cir. 1968) .......ccscesseeseeseesseereseeseeseeeeensenaeees 26,27

Bolling v. Sharpe, 347 U.S. 497 (1954) «.-...-s+++0+ 16

Buckley v. Valeo, 424 U.S. 1 (1976) ..........+-.. 12,15,17,24

C.B.S., Inc. v. Democratic National Committee,

A412 U.S. 94 (19738) ................ccseeeeeeeeecorees 15,23,24,38

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

(1984) ..esceccescesscessesseereescesseesesssceneeseennssneensenes 27

Century Communications Corp. v. F.C.C., 835 F.2d

292 (D.C. Cir. 1986), clarified, 837 F.2d 517

(D.C. Cir. 1988) .....sccscesceeceseesseerseeseneesesnetenseees passim

City of Los Angeles v. Preferred Communications,

Inc., 476 U.S. 488 (1986) ........ssscceseeereeeereeeenesees 3,4,5

Consolidated Edison v. Public Service Commission

of New York, 447 U.S. 530 CTBBD) nncerccccosncecs 25

Elrod v. Burns, 427 U.S. 347 (1976) .......:sseeeeeeees 19

FCC. v. Florida Power Corp., 107 S.Ct. 1107

(1987) ..sccesccssssccsssssssenseescescescsssesersensesnssnsenesnees 25

F.C.C. v. Midwest Video Corp., 440 U.S. 689

(1979) ..escescssscesccsssecsenscsesssccsscssssensensesncsncssnssess 27

First English Lutheran Church v. Los Angeles

County, 107 S.Ct. 2378 (1987) -.--.seseeerseeeeees 25

First National Bank of Boston v. Bellotti, 435 U.S.

TOD (1978) ...esscsescessssececeesseeeeeeereccenesernessnsenerens 12

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

(1968) ....esccsscesscsssesceerenscesccessssennssssennesennescnes 23

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ........ 21

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

1956) ....esccssccsscccsecserceesersnscenerssessenssssncenneennnes 23

Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 USS.

293 (1961) ....scceseccescscceseeeeereesereseneeesensensnneones 18

Metromedia, Inc. v. San Diego, 453 U.S. 490

(1981) ......s-cccccssseececeeccrscssnsncersessssnsncocssscccsnseers 16

Table of Authorities Continued

Page

Miami Herald Publishing Co. v: Tornillo, 418 U.S.

RE TT inhibits ae 12,14,19

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

Cir. 1978), aff'd. on other grounds, 440 U.S.

Ge GION - snacicteintaiessienihinesdieeibatesiideiceniaedn it 26

Minneapolis Star and Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 573

SUPT uisticheidhianbsenaPhaitisbeiniiis nediegls tated ee ee 12,25

National Broadcasting Co. v. United States, 319

Jd. BUNGEE cédnctinesseousdciaieadtaiananine 23

Quincy Cable TV, Inc. v. F.C.C., 768 F.2d 1434

(D.C. Cir. 1985), cert. denied sub nom. National

Association of Broadcasters v. Quincy Cable

TV, Inc., 476 U.S. 1169 (1986) ooo eeeecceeeee 3,9

Red Lion Broadcasting Co. v. F.C.C., 395 U.S.

Pe CIE pibuikksanbiashatetennesneiaial acne name 15,23,24

S.E.C. v. Chenery Corp., 318 U.S. 80 (1948) ......... 23,26

Teleprompter Corp. v. C.B.S., 415 U.S. 394

COUT dncsnisinsionnscdeenidaiaieaa eee 23

United States v. O’Brien, 391 U.S. 367 (1968) ..... passim

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

See GONE > idcedis ee ee 27

Young v. American Mini Theatres, 427 U.S. 50

PION dleiabtasnssaidessaueinne a kee eee 12

FCC DECISIONS

Report and Order in MM Docket No. 85-349, 1 FCC

Red 864 (1986) (“Report and Order” or

WEEE OP dcbbisdeid dann eon ee passim

U.S. CONSTITUTION

Ces SIs IEF iio conccncenccrincocarnisioionbaeeecra passim

Us CO SE FF heck eee ee 25

STATUTE

5 Wn UU csiiensiadoonsnnoedasee ee 14

Table of Authorities Continued

Page

FCC REGULATIONS

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GT CB Bes BOOT cccccevencsceccecsceseseccnsccnssececensesesenseses 5

GT CHB, GIGI ccecscesceseovccccccsecessncsessrsscvessonseseveess 5,6

BT CTP BR TRG cccecsecseccesccctsscescsesessviscssuscscnnsvenses 5,6

GE CE. BUCID ceciecncsctscoseccescessssesscesensovecsesnscseenes 5

GT CHP. GIGI ccccccccccccsccocscsoscsccssentnccosseossssscsseses ake

BT GPR GIGI ccccccssscsssecsscctesasvcscrssteiansisemnnenee 5

QT CP RR. GIGI ccccecccccccscccscssescescocvesessssonesassosssonss 5

MISCELLANEOUS

Webster’s Third New International Dictionary

CRIED — ccacenccnceteccossonssecnseseccesuscnsnnseusansnsessennabeese 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

Nos. 87-1487, 87-1506,

87-1510 and 87-1551

OrFriceE Or COMMUNICATION OF THE

UnrTep CHURCH OF CHRIST,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA.

Respondents.

CORPORATION FoR PUBLIC BROADCASTING, et al..

Petitioners,

V.

CENTURY COMMUNICATIONS CorP., et al..,

Respondents.

Petitions for Writ of Certiorari

to the United States Court of Appeals

For the District of Columbia Circuit

CONSOLIDATED BRIEF OF RESPONDENTS CENTURY

COMMUNICATIONS CORP., ET AL. IN OPPOSITION TO

THE PETITIONS FOR WRIT OF CERTIORARI

Respondents Century Communications Corp., et al.

(hereinafter ‘“‘Century”’ or “‘respondents’’), owners and

operators of cable television systems throughout the

United States and the lead petitioners in the court

below, oppose those separate petitions of (1) Office

of Communication of the United Church of Christ, (2)

Corporation for Public Broadcasting, et al., (3) Na-

tional Association of Broadcasters, and (4) Association

of Independent Television Stations, Inc. (hereinafter

jointly referred to as “‘petitioners’’).'

OPINIONS BELOW

The opinion of the court of appeals, dated Decem-

ber 11, 1987, is reported at 835 F.2d 292 (D.C. Cir.

1987) and reprinted in the Petitioners’ Appendix

(“‘App.””) at la-28a. On January 29, 1988, the same

court issued a “‘clarifying’’ Order, which is reported

at 837 F.2d 517 (D.C. Cir. 1988) and also reprinted

in the Appendix at 29a-3la. The D.C. Circuit opinion

reviewed the FCC’s Report and Order of August 7,

1986 adopting must-carry rules, 1 F.C.C. Red. 864

(1986) (““R&O’’) reprinted in Petitioners’ Appendix

‘ While three of the four petitioners designate Century, et al.

as respondents, petitioner Office of Communication of The United

Church of Christ (No. 87-1487) names here the Federal Com-

munications Commission and the United States as ‘‘respondents’’.

Yet United Church’s primary contention was below and is here

to support the underlying constitutionality of the rules at issue.

Its only difference with the FCC is that such rules do not go

far enough in detail to satisfy it and the fact that they were

designated “‘interim’”’ (i.e., to expire five (5) years after adop-

tion). The thrust of United Church’s petition seems to be that

the underlying concept of the must-carry reguiations is consti-

tutionally sound and should have been sustained below, at least

conceptually, on statutory grounds. United Church, we reiterate,

is a vigorous promoter of must-carry regulation and stands fun-

damentally on the side of the FCC in this case.

32a-204a, reconsid. denied, 2 F.C.C. Red. 3593 (1987),

Appendix 205a-330a.

STATEMENT OF THE CASE

This case involves rulemaking by the Federal Com-

munications Commission (““FCC’’) which produced a

new set of content-based regulations referred to as

“‘must-carry” rules.2 Century Communications Corp.,

et al., respondents here but petitioners below, jointly

challenged the lawfulness of these rules on a variety

of constitutional (First and Fifth Amendment) and

statutory grounds, and the court of appeals, finding

it necessary to decide only the First Amendment

question, vacated the regulations as unconstitutional.

The subject petitions followed.

The Court recently has had occasion to review cable

television within the framework of franchising by local

governmental authority, including market-entry fac-

tors, all within the context of First Amendment im-

plications.* Preferred presented the question of the

power of a municipality to require one to obtain a

municipal “franchise” permitting installation of a per-

manent cable television distribution system within the

community. More particularly, Preferred raised issues

relating to the nature of such ‘‘franchising’’ authority

and the extent to which cities might go in condition-

* The first set of must-carry rules, which had been effective

over two decades, was declared unconstitutional as incompatible

with the First Amendment in Quincy Cable TV, Inc. v. F.C.C.,

768 F.2d 1434 (D.C. Cir. 1985), cert. denied sub nom. National

Association of Broadcasters v. Quincy Cable TV, Inc., 476 U.S.

1169 (1986).

* City of Los Angeles v. Preferred Communications, Inc., 476

U.S. 488, (1986).

ing entry and use of public rights-of-way by a cable

operator. Finding there that the activities of cable

systems “plainly implicate First Amendment inter-

ests’, 476 U.S. at 494, the Court, citing United States

v. O’Bren, 391 U.S. 367 (1968), further noted that

‘“‘where speech, and conduct are joined in a single

course of action, the First Amendment values must

be balanced against competing societal interests’, 476

U.S. at 495. The Court concluded that those particular

issues before it in Preferred involved considerably

more than just communicative activity in that they

also encompassed physical establishment and main-

tenance of a complex of cable-lines and other facilities

over and under public streets and rights-of-way. Re-

manding that case for a fully developed record, the

Court stated:

We think that we may know more than we

know now about ... the present uses of the

public utility poles and rights-of-way and how

[the cable operator] proposes to install and

maintain its facilities on them.

Preferred, 476 U.S. at 495.4

Preferred, therefore, combined that ‘‘element of

conduct” (e.g., permanent installation of cable plant

within city streets) with “‘some of the aspects of

speech and the communication of ideas as.do the tra-

ditional enterprises of newspapers” (476 U.S. at 494),

thereby joining ‘‘in a single course of action” ‘‘com-

municative activity’”’ and ‘‘conduct’’. As such, the

4 See also id. at 496 (Blackmun, J. concurring) (The Court’s

opinion in Preferred ‘“‘leaves open the question of the proper

standard for judging First Amendment challenges to a munici-

pality’s restriction of access to cable facilities’).

O’Brien standard of review plays there a pivotal role

in fashioning the parameters of permissible regulation

even though the exercise of speech freedom may

thereby be incidentally restricted. The Preferred-type

issue is yet to be resolved in any definitive sense by

the Court and is one undoubtedly to be revisited.

The instant case, however, raises First Amendment

questions quite different and apart from those con-

fronting the Court in Preferred. This case involves

only federal regulation of communicative activity via

the medium of established cable television lines. It is

facial content-regulation by Government that is here

at issue. That element of relevant ‘‘conduct’’, essen-

tial to an O’Brien analysis, is nowhere present. Fol-

lowing Quincy, the FCC promulgated a new set of

“must carry” rules, the purpose and function of which,

once again, was directly to control the content and

distribution-format of those communications trans-

mitted over cable lines. The rules in question are

relatively simple and are codified at 47 C.F.R. §§

76.5, 76.55, 76.56, 76.58, 76.60, 76.62, 76.64 and 76.66

(1987). They also are reprinted in the Petitioners’

Appendix at 177a-187a.

By this current version of must-carry regulation,

the FCC again frontally supervises ‘‘content”’ through

classifying various speakers and then designating cer-

tain speech sources which must be distributed and

exhibited on a highly favored basis over cable-tele-

vision media.® Specifically, these FCC rules favor:

5 See, e.g., Rule §76.62, App. 184a. It is noted that all parties

below concurred in the proposition that all of the ‘‘speech” and

all of those ‘‘speakers’”’ presently or potentially affected by the

must-carry rules at issue are fully and equally protected under

the First Amendment.

¢ The speech of certain ‘‘qualified’’ “‘local’’

broadcast licensees over that of “‘distant”’

television stations (Rule §§76.5(d) and

76.56).

e The speech of the more popular, financially

secure ‘‘local’’ broadcast licensees over that

of other smaller, less popular and less af-

fluent ‘‘local’’ licensees (Rule §76.5(d)).®

e The speech of ‘‘public’”’ (non-commercial)

“‘local’’ broadcast licensees over that of

other local stations, and indeed over all

speakers (Rule §76.56(a)1)).

e The speech of “‘local’”’ broadcast licensees,

provided they satisfy the established “‘pop-

ularity”” standard, over that of all non-

broadcast speakers regardless of location

or popular appeal (Rule §§76.5(d) and

76.56).

e The speech of newly operational “‘locai

broadcast licensees, at least for one year,

over the speech of new cable programmers

(and indeed over everyone except a non-

commercial station) (Rule §76.5(d\ii)).

e The speech of a prescribed quota of local

“‘qualified’’ television licensees over the dis-

cretion of cable operators in their capacity

as speaker, editor, arranger and distributor

(Rule §76.56(a)(2)).

See also Rule §76.58 (App. 182a-83a) whereby the

FCC confers itself with the power to resolve all dis-

® See also Report and Order, 44144-146, App. 115a-117a.

putes regarding speech distribution and to impose.

monetary forfeitures upon those who fail to comply

with its directives.’

The FCC candidly acknowledged that these new

regulations constitute a comprehensive supervision of

speech activity and that their primary function is di-

rectly to intrude upon and compromise editorial dis-

cretion. As represented by the Report and Order

giving birth to these rules:

¢ “This editorial function whereby cable op-

erators select and tailor their program mix

to meet viewer interests or other objec-

tives is akin to that performed by publish-

ers of print media.” (R&O, 4120, App.

97a).

e “(W]e recognize must carry rules are a

stringent form of regulation that intrude

on cable operators’ free speech rights”’

(R&O, 4138, App. 110a-111a).

e ‘“‘We note that the interim rules are less

intrusive on cable operators’ editorial dis-

cretion than the former rules ...” (R&O,

4138, App. 111a).

7 The Court, we trust, will note the remarkable extent to which

the subject petitions avoid all discussion of the workings of those

rules which are the subject of this case. Their reason is obvious:

The stated purpose and methodology of the regulations consti-

tute a per se indictment of their lawfulness.

® Must-carry does not, as such, censor the content of any par-

ticular message but rather intrudes to classify speakers and to

mandate and supervise the presentation of the speech of des-

ignated class-members over cable TV media.

e “{W]e find persuasive the more recent

court analyses which conclude that cable’s

First Amendment rights are subject to a

stringent review [as would apply in the

case of a newspaper] (R&O, 4184, App.

141a).

e “‘Whereas [incidental burdens on speech]

are assessed under the balancing standard

enunciated in [O’Brien], content-based reg-

ulations are subject to a far more stringent

standard” (R&O, 9185, App. 142a-48a).

e “Like the court in Quincy, we recognize

that the same O’Brien test would apply to

newspapers in assessing the constitution-

ality of a content-neutral rule” (R&O, 9187

n. 150, App. 144a).

e “{The] must-carry rules are configured ...

so that the effects on cable operators’ ed-

itorial discretion and cable programmers’

access to the public are no more severe

than necessary ...” (R&O, 4189, App.

146a).°

As was the case with the prior, unconstitutional rules,

certain favored licensees of television stations are once

more ‘‘guaranteed the right to convey their messages

over the cable system while [non-broadcast] cable pro-

grammers [and now ‘‘unqualified”’ local stations] must.

*The FCC did not further elaborate upon the source of its

authority to judge the permissible “‘severity’’ of a restraint placed

by it on the “‘cable operators’ editorial discretion’.

vie for a proportionately diminished number of chan-

nels’’.}°

The FCC and the court below, reaching dramati-

cally different conclusions, relied upon this Court’s

O’Brien standard as the appropriate test in examining

the constitutionality of these regulations.'! The

petitioners here, with the exception of the Office of

Communication of the United Church of Christ, sim-

ilarly assert that O’Brien is the appropriate standard

of judicial review, but they further urge upon the

Court that the D.C. Circuit erred in imposing ‘an

unreasonably heavy evidentiary burden on the FCC

to demonstrate’’ compliance with the O’Brien crite-

ria.}?

10 Quincy Cable TV, 768 F.2d at 1451. While respondents, each

a cable-system operator, assert here an invasion of their editorial

discretion, there is the separate constitutional perspective of the

independent programmer (including the ‘‘unqualified’’ local sta-

tion) seeking to distribute its message over the cable medium

and who is directly frustrated by that governmental preference

officially accorded the favored class of speakers. In both in-

stances, exercise of a constitutionally protected activity is fron-

tally and consciously restricted by a regulation designed to

achieve just such end. The crucial question, equally applicable

to the “rights’’ of cable operators and cable programmers alike,

is whether the constraint and protections of the First Amend-

ment foreclose such regulation.

11 The court below took the position that it was “‘unnecessary”’

to “resolve [the] vexing question” of the appropriate standard

of constitutional review since “‘the new, scaled-back edition [of

must-carry rules] fails to satisfy even the less demanding first

amendment test of United States v. O’Brien whose use here is

advocated by the FCC’’. Century, App. 15a. Nonetheless the

appeals court opinion does heavily lean toward O’Brien as the

appropriate standard (e.g., Jd., App. 17a-18a, and see App. 31a).

12 Petition of Corporation for Public Broadcasting, p. i. See

a

10

Respondents urge, as they have from the outset,

that O’Brien is inapposite to review of the regulations

at bar. All parties appear to agree (or, at least, con-

cede) that if O’Brien is perchance an improper stand-

ard by which to measure the constitutionality of the

FCC’s must-carry regulations, the rules must fall as

incompatible with the First Amendment.

REASONS FOR DENYING

THE WRIT

1. O’Brien, On Its Face, Is Inapposite to Review of

those FCC Regulations At Issue

That the activity of communication by cable tele-

vision, in the context of a Preferred examination, calls

for application of an O’Brien standard of review does

not mean that such standard is universally to be the

test in all matters involving cable and the First

Amendment—especially where, as here, it is exclu-

sively content regulation that is at issue. In O’Brien,

the Court reiterated the principle ‘‘that a government

regulation [of a nonspeech element of conduct] may

be sufficiently justified [even where First Amendment

freedoms are incidentally restricted] if’:

(i) “it is within the constitutional power of

the Government”’;

(ii) “it furthers an important or substantial

governmental interest’;

also Petition of Association of Independent Television Stations,

Inc., p. 1. The position taken by petitioner United Church is that

a mix of statutory obligations imposed on the FCC by Congress

takes precedence over these constitutional concerns.

11

(iii) “‘the governmental interest is unrelated

to the suppression of free expression;

and”’

(iv) “the incidental restriction on alleged

First Amendment freedoms is no greater

than is essential to the furtherance of

that interest’.

United States v. O’Brien, 391 U.S. at 376-77. Applli-

cation of an O’Brien evaluation requires that each of

these four criteria be independently satisfied. Jd. at

377. It is a threshold examination; and, as demon-

strated infra, must-carry regulation fails at each junc-

ture. Other than the asserted O’Brien rationale,

neither the FCC nor petitioners suggests a basis upon

which to justify direct, content-intrusive regulation of

speech and media.

We examine, in order, each of those four (4) O’Brien

qualifying criteria specifically in the context of the

must-carry regulations under review.

A. The ‘Constitutional Power of the Govern-

ment’”’: The first, and most critical, hurdle to be

crossed is a showing that the rules on their face are

presumably constitutional in terms of consistency of

purpose and means. This minimally comprehends some

preliminary analysis of the regulatory scheme and its

mechanics, and a reasoned judgment. Must-carry (i.e.,

mandating content as well as a facial classification

and prioritization of fully protected speech and speak-

ers for distribution and publication over independently

owned, fully protected communications media) is, in

its most favorable light, presumptively not ‘‘within

12

the constitutional power of the Government’’."* The

thesis, openly espoused by the FCC, is that Govern-

ment, provided only that its objective is deemed “‘rea-

sonable” or ‘necessary’, may directly supervise

content to substantively discriminate between equally

protected speakers. Such regulation, we submit, is per

se unconstitutional.'* Must-carry unquestionably con-

stitutes a form of ‘“‘censorship’’.* Instead of preli-

minarily considering the underlying constitutionality

13 The avowed function of must-carry regulation, albeit under

the cover of a public purpose, is to “‘restrict the speech of some

elements of society in order to enhance’’ that of the favored

licensee class, a concept universally condemned in principle by

the Court as ‘‘wholly foreign to the First Amendment”. Buckley

v. Valeo, 424 U.S. 1, 49-50 (1976). See also First National Bank

of Boston v. Bellotti, 435 U.S. 765 (1978); Minneapolis Star and

Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S.

573 (1983).

‘4 While a “‘compelling’’ State interest or the application of a

relevant “categorization” doctrine might possibly serve to justify

direct governmental control over the dissemination and reception

of protected speech, no such claim has been asserted here by

the FCC, the agency relying instead upon a subjective weighing

of various ‘‘factors”’ to justify its acknowledged ‘‘intrusion’”’ and

“restrictions” on the exercise of protected freedoms. The theory,

candidly advanced by the FCC, is that the ‘‘objective’’ of its

policy sufficiently outweighs, and therefore ‘‘justifies’’, the re-

straint. According to the Commission, it is Government’s purpose

in directly supervising speech and favoring certain speakers that

may adequately validate the chosen means—boot-strapping of the

most primitive, objectionable variety.

‘5 Fg. Young v. American Mini Theatres, 427 U.S. 50, 64

(1976) (“The essence of .. . forbidden censorship is content con-

trol’). See also Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241, 256 (1974XA law requiring publication ‘‘operates as a

command in the same sense as a statute or regulation forbidding

[distribution of] specified matter’’).

13

of must-carry, as O’Brien prescribes, the FCC, with-

out examination or articulation, asswmes the validity

of its regulation. Thereby, that preemptive assess-

ment, which must affirmatively and rationally be re-

solved if the ‘“‘balancing’”’ scales of O’Brien are to

play any further role in the constitutional analysis, is

quietly (i.e., without mention) avoided. By so preor-

daining its judgment and thereby arbitrarily abbre-

viating the process, the FCC fatally discounts ab initio

the First Amendment. That which follows only com-

pounds the error.

B. The ‘‘Substantiality’’ of the ‘Governmental

Interest”: The stated ‘‘governmental interest” of

must-carry is to protect and promote the speech of

a select class of broadcast licensees vis-a-vis all other

speakers. The means chosen to perfect such “‘inter-

est” is establishment of “‘qualifying’’ criteria for entry

into the favored class and the award to class members

of special distribution rights for their speech. FCC

Rule §76.5(d), App. 180a-182a. The court below, comb-

ing the agency record, found no requisite “‘substan-

tiality’”’ of governmental interest nor even a

demonstrated ‘‘need”’ for the regulation. To the con-

trary, it did hold that the rules are “predicated not

upon substantial evidence but rather upon several

highly dubious assertions. . . .”” Century, App. 18a. See

also id. at 4a (finding “‘that the new must-carry rules

are [un]necessary to advance any substantial govern-

mental interest ...’’). Thus, must-carry, in isolation,

flunks even this most lenient segment of constitutional

examination.'®

6 The ‘“‘substantiality’ of the government’s “‘interest’’, we

urge, is demonstrably not a relevant consideration where the

14

C. The Relationship of the ‘‘Governmental Inter-

est’”’ to Speech: The designated target of must-carry

is not any “‘nonspeech element”’ of a cable operator's

conduct, but is rather speech (i.e., the operator’s ex-

ercise of “editorial discretion’ in the selection and

distribution of protected communications). The FCC

concedes that its ‘‘must carry rules are a stringent

form of regulation that intrude on cable operators’

free speech rights” (R&O, 4138, App. 111a), but, ac-

cording to the agency, “‘the effects on cable operators’

editorial discretion and cable programmers’ access to

the public are no more severe than necessary ...”

(R&O, 9189, App. 146a).!7 Not only do such repre-

sentations directly contradict substantial First

Amendment values, they constitute here extraordi-

nary admissions of constitutional infirmity.'* ‘‘Con-

regulation at issue squarely confronts the command of the First

Amendment (as here, a direct, content-based intrusion on edi-

torial discretion).

‘7 Freely admitting that the rules directly intrude on “free

speech rights” and “editorial discretion’’ thereby frontally re-

stricting these protected freedoms, the FCC does not discuss its

underlying authority to adopt such extraordinary regulations.

See, e.g., 47 U.S.C. §326—the anti-censorship provision of the

Communications Act. The Constitution aside, the Act itself would

seem organically to deny the administrative agency such awe-

some powers.

8 Miami Herald Publishing Co., 418 U.S. at 258 (‘“‘[W]hether

fair or unfair [].... [i]t has yet to be demonstrated how gov-

ernmental regulation of [editorial discretion] can be exercised

consistent with First Amendment guarantees of a free press as

they have evolved to this time’). The FCC strays so far afield

as to represent: “Like the court in Quincy, we recognize that

the same O’Brien test would apply to newspapers in assessing

the constitutionality of a content-neutral rule” (R&O, 4187 n.

150, App. 144a).

15

duct’”’, in the O’Brien sense or context, is nowhere

to be found in the must-carry scenario.'* The focus

of the FCC’s “‘interest” is the direct supervision of

speech distribution and, with even more particularity,

the conscious advancement and protection of the

speech of an already privileged class.” The essential

theme of the rule is to favor the speech of a select

few and, correspondingly, to suppress that of others.

That the FCC may subjectively declare its regulatory

goal ‘‘noble” or public-interest spirited, even if true,

does nothing to cosmeticize or ameliorate the full im-

plications of the First Amendment.” Neither may a

laudatory purpose, however genuine, obviate here the

mandate to track the prescription of O’Brien.” There

'% See, e.g., Buckley v. Valeo, 424 U.S. at 16-17 (“Some forms

of communication ... involve speech alone [and] some involve

conduct primarily ...’’ (Jd. at 17). And it is only the latter that

“reduce[s] the exacting scrutiny required by the First Amend-

ment” (Jd. at 16)). Must-carry unquestionably comprehends the

regulation of “‘speech’’..

2 See, e.g., C.B.S., Inc. v. Democratic National Committee, 412

U.S. 94, 101 (1973). See also Quincy Cable TV, 768 F.2d at

1452-53 (“{MJust-carry rules transfer control to local broad-

casters who already have a delivery mechanism granted by the

government without cost and capable of bypassing the cable

system altogether’). “[A]dvantages [of a broadcast license] are

the fruit of a preferred position conferred by the Government

..." Red Lion Broadcasting Co. v F.C.C., 395 U.S. 367, 400

(1969).

21 Houchins v. KQED, Inc., 438 U.S. 1, 13 (1978) (Decision-

makers ‘“‘must not confuse what is ‘good’, ‘desirable’ or ‘expe-

dient’ with what is constitutionally commanded by the First

Amendment. To do so is to trivialize constitutional adjudica-

tion’’).

22 Even conceding there to be some measure of potential merit

in the FCC’s must-carry regime, such cannot serve to coalesce

16

is nothing “‘indirect’’, “neutral” or ‘“noncommunica-

tive” in the Government’s “interest” or in the reg-

ulation’s application to speech activity. ‘‘Neutrality”’

can hardly be viable contention where the primary

purpose of Government is officially to establish and

promote, as between equally protected speakers, a

preferred class of speaker. This aspect of the rule,

standing alone, would appear per se to breach as well

that venerable principle of Equal Protection Under

the Law. Bolling v. Sharpe, 347 U.S. 497 (1954). If

one class of speaker is to be governmentally created

and then favored over other speakers—the raison

d'etre of must-carry—the scheme is by definition di-

rectly related ‘‘to the suppression of free expression’”’,

thus precluding use of an O’Brien evaluation.*> Gov-

the O'Brien standard of constitutional review into essentially a

public-interest judgment where administrative expertise and

agency discretion constitute the weight of authority.

*8 Compare, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490,

502 (1981) (“{T]he government has legitimate interests in con-

trolling the noncommunicative aspects of the medium ..., but

the First and Fourteenth Amendments foreclose a similar in-

terest in controlling the communicative aspects’’).

* The theory of the FCC is that by affirmatively compelling

cable distribution of the message of the preferred “‘broadcast”’

speaker, unspecified First Amendment “values” will be achieved

thereby off-setting the infringement. Such altogether ignores the

bedrock principle that the role of the Speech and Press Clause

is foremost to foreclose Government from such intrusive regu-

lation, whatever the goal or rationale.

*5 See, e.g., Consolidated Edison v. Public Service Commission

of New York, 447 U.S. 530, 533-536 (1980) (Even a restriction

based on a “compelling state interest’’ must manifest an inher-

ent ‘‘neutrality’’). If the “concept that government may restrict

the speech of some ... in order to enhance the relative voice

of others is [indeed] wholly foreign to the First Amendment”,

17

ernment, we submit, is powerless to fevor by sub-

stantive regulation the message of one class of

speaker over another where both possess equal en-

titlement to the protections of the First Amendment.

The unique mechanics of must-carry—official estab-

lishment of a speaker-hierarchy and creation of sys-

tematic speech preferentials—would seem therefore to

warrant something more than reliance upon O’Brien.

D. Must-Carry as an “Incidental Restriction on

Alleged First Amendment Freedoms’’: There is

nothing conceivably “incidental” about must-carry’s

intended application to and actual effect upon the

freedom of speech and press.”* The modus operandi

of the rule is directly to govern the make-up and flow

of communications over a concededly protected me-

dium pursuant to FCC specifications.’ The rule was

promulgated with the specified purpose of promoting

the speech of some and constricting the recognized

speech freedoms of others. The Government’s calcu-

lated objective is to mandate content through the ac-

knowledged, extraordinary device of restricting the

Buckley v. Valeo, 424 U.S. at 49-50, it would seem that this

aspect of must-carry regulation would invite some discussion

from proponents of the regime. No one (not even the court

below) faces up to this glaring infirmity in the regulation.

2 “Incidental” is defined as “‘subordinate, nonessential, or at-

tend:at in position or significance: occurring merely by chance

or without intention or calculation ...”. Webster’s Third New

International Dictionary, Unabridged (1976). The court below,

inexplicably, never does consider whether must-carry constitutes

merely an “incidental infringement of speech”. See Century, App.

4a.

27 “Incidental” does not mean, as the beneficiaries of the rule

imply, that the abridgment should, in degree, be subjectively

“acceptable” and, therefore, judicially overlooked.

18

communicator’s editorial discretion. Neither is there

anything problematic or ‘‘alleged’’ regarding those

guaranteed freedoms here at issue. It is indeed the

FCC that accurately characterized the subject regu-

lation as a “stringent ... intru[sion] on cable oper-

ators’ free speech rights” (R&O, 4138, App. 111a).*

Thus, there is nothing fortuitous or subliminal about

those rights intended to be interdicted by must-carry.

Government may not contextually contend that the

intrusion “is no greater than is essential’? without

first logically finding that the speech restrictions

worked by the rule fall only as an “‘incidental”’ effect

of a legitimate, noncommunicative regulation. To do

so is to invert the O’Brien process and thereby to

immobilize the First Amendment.”? That restriction

placed by must-carry regulation on established First

Amendment freedoms is, on its face, intentional, sub-

28 Imagine the virility that Mr. O’Brien’s defense would have

taken on had the Government there acknowledged that a pri-

mary (or even secondary) purpose of that law banning destruc-

tion of draft cards was to intrude upon and limit his speech

freedoms. Compare O’Brien, 391 U.S. at 378-381.

*? The FCC’s concept of O’Brien, supported by petitioners, is

universally to apply agency discretion to assess all restrictions

on speech freedoms—whether incidental or direct. In such fash-

ion, a law prohibiting intentional mutilation of a draft card is

treated identically to a law directly supervising media content.

According to this theory, it is only the magnitude of the restraint

measured against the regulator’s objective that is relevant to

the constitutional examination. Compare Louisiana ex rel. Grem-

illion v. N.A.A.C.P., 366 U.S. 293, 297 (1961) (Even ‘“‘sophis-

ticated” regulation ‘“‘cannot be employed in purpose or in effect

to stifle, penalize or curb the exercise of First Amendment

rights’). That blunt confrontation of must-carry with the com-

mand of the First Amendment is anything (or everything) but

‘‘sophisticated’’.

19

vv

stantial, direct and communicative—any one of which

forecloses, at the threshold, an O’Brien justification.®

When the fact that the rule is facially speaker-partial

is added to this calculus, any case the FCC may have

had for First Amendment compatibility evaporates.

ses te te te Pe & & &

It is only when each of the foregoing questions is

affirmatively resolved that the decision-maker may

properly invoke the scales of O’Brien to weigh the

relative merits of the Government’s “incidental re-

striction” on ‘‘alleged’’ speech freedoms vis-a-vis that

‘objective’ to be achieved by the ‘‘presumably con-

stitutional”’ regulation of ‘‘conduct’”’. O’Brien, there-

fore, has nothing whatever to do with a regulation

directly and purposefully restricting speech free-

doms.*!

In O’Brien, this Court, with exceptional precision,

emphasized:

[T]he Nation has a vital [, constitutionally

legitimate] interest in having a system for

30 Were ‘“‘must carry” to be applied conceptually to the print

medium, there would be no question but that O’Brien is irrel-

evant. Miami Herald, supra. Yet, the FCC, dispelling all doubt

as to its novel concept of the First Amendment, insists ‘‘that

the same O’Brien test would apply [equally] to newspapers ...”’.

R&O, 4187 n. 150, App. 144a.

31 See also Elrod v. Burns, 427 U.S. 347, 362 (1976) (Under

constitutional challenge, the burden rests affirmatively upon the

government to justify any restraint). Twisting this established

order, the FCC, as well as the beneficiaries of the regulation,

blithely assume First Amendment compatibility thereby shifting

sub silentio their obligations to those subjected to the abridg-

ment.

20

raising armies .... [T]he Government has a

substantial interest in assuring the continu-

ing availability of issued Selective Service

certificates.

[T]he continuing availability of issued Selec-

tive Service certificates [is reasonably as-

sured by] a law which prohibits their willful

mutilation or destruction. ** * * The [law]

prohibits such conduct and does nothing more

.... [B]oth the governmental interest and

the operation of the [draft card law] are lim-

ited to the noncommunicative aspect of [Mr.]

O’Brien’s conduct.

O’Brien, 391 U.S. at 381-82 (citations omitted). The

Court thus determined unconditionally, and at the out-

set, that the Selective Service law there under ex-

amination was noncommunicative in scope and that

it furthered reasonably a constitutionally legitimate

objective. Only after such finding is the door opened

to that carefully guarded “‘balancing”’ evaluation.”

In stark contrast to that “draft card’ law at bar

in O’Brien, the FCC’s must-carry regulation is aimed

directly and only at communicative activity for the

express purpose of partially controlling the exercise

of editorial discretion and, thereby, content over a

82 The rationale of O’Brien is never to disarm the protections

of the First Amendment but rather to extend them in context

to also entail examination of certain forms of “‘conduct’’ where

“speech” rights are “alleged” to be implicated (e.g., a symbolic

burning of one’s draft card with the intention of conveying an

anti-war statement). In the FCC’s view, O’Brien provides a rec-

ipe for avoidance of the Amendment’s constraint on Government

as well as a means to penetrate directly those constitutional

protections conferred thereunder.

21

fully protected medium of communication.** Must-carry

has literally nothing to do with the ‘“noncommunica-

tive aspect’’ of a cable operator’s ‘‘conduct”’ nor, for

that matter, anyone’s ‘‘conduct’’.** Supervision of con-

tent, including, inter alia, classification and protection

of preferred speakers and explicit control over dis-

tribution format, is not rationally to be considered an

“incidental” by-product or “‘accidental’’ side-effect of

the FCC policy. It is the policy!*

The command of the First Amendment that ‘‘Con-

gress shall make no law ... abridging the freedom

of speech, or of the press” is read by the FCC to

imply the qualifier, “‘except where such abridgment

may be related by Government to a public purpose’’.**

Neither O’Brien nor any other precedent of the Court

supports such inference.*’

33 Only under the most forgiving of examinations could must-

carry be considered anything less than presumptively unconsti-

tutional.

% Neither the FCC nor petitioners ever identifies, or even

alludes to, that relevant “‘conduct” to which the regulation is

supposedly directed. Nor do they purport to consider whether

the rule may be “communicative” in purpose or reach. Yet, all

insist that O’Brien is the appropriate standard of review.

6 Ignoring the essential thesis of O’Brien, the FCC relies on

the case as substantive ‘authority’ to assert direct regulatory

control over purely “communicative” activity—a patent distor-

tion of the Court’s holding. Indeed, the general rule, with only

rare exception, is that such subject matter is foreclosed to reg-

ulation. See supra, note 23.

% Discounting the freedoms of some so as to enhance those

of a favored class—the slant which the FCC places upon this

constitutional issue—is the very antithesis of First Amendment

principle.

37 Throughout its Report and Order, the FCC places great

22

The FCC construes O’Brien to confer upon it a

broad, virtually unfettered discretion to assert juris-

diction over communicative functions and to apportion

the values of the First Amendment, all bounded by

little more than the agency’s own prognostic powers

and momentary perception of the public interest.*

This, at best, is constitutional folly. Whatever O’Brien

(or its progeny) may say or mean, it is not a ticket

to undermining the potency of the First Amendment.

Therefore, O’Brien can play no role in the consti-

tutional analysis of a restraint consciously placed on

the exercise of fully protected speech freedoms under

conditions where, as here, the restriction is direct,

substantial and communicative in both application and

effect. And without the asserted O’Brien rationale,

the FCC rules at issue are bare of purported justi-

fication from any quarter. Thus, the abridgment of

emphasis upon the fact that its must-carry program is “interim”

since it currently specifies a sunset (i.e., five years following

adoption), and it urges that this limited life of the intrusion is

constitutionally significant. R&O, ¢4136-38 (App. 109a-111a),

{188-89 (App. 145a-46a). Respondents know of no precedent or

rationale suggesting that an abridgment of one month or five

years is constitutionally more palatable than one of unspecified

or open-ended duration. It is the act of abridgment that is the

focal point of the constitutional examination. If Government has

the authority to abridge First Amendment freedoms for five

years, then it follows that such abridgment may be extended or

renewed under the same authority. See, e.g., Report and Order,

Separate Statement of Commissioner James B. Quello, App. 194a

(‘‘I want to make absolutely clear that I will use my best efforts

to block any sunset of our must-carry rule ...”).

38 Neither the FCC nor petitioners even consider that ‘‘con-

straint’”’ squarely placed by the First Amendment upon the agen-

cy’s jurisdiction. Compare C.B.S., Inc. v. Democratic National

Committee, 412 U.S. 94, 114 (1973).

23

must-carry is, on this record, unconstitutional per se

as incompatible with the First Amendment.*

2. The Court Below Reached the Correct Conclusion,

and Indeed the Only One it Could, on the First

Amendment Question

The fundamental flaw underlying all of the subject

petitions is that each assumes, without articulation,

that licensees of television broadcast stations, as First

Amendment speakers, are entitled to uniquely favor-

able treatment solely because of their status. That

underlying assumption is wrong; and, indeed, it is the

converse thesis which this Court has consistently ap-

plied. A broadcaster’s privileged occupancy of the

_ scarce, limited spectrum justifies and excuses a di-

minished First Amendment status, since ‘i]t is the

right of the viewers and listeners, not the right of

broadcasters, which is paramount.’ Red Lion Broad-

casting Co. v. F.C.C., 395 U.S. 367 390 (1969).* See

also National Broadcasting Co. v. United States, 319

U.S. 190, 226-27 (1948); Columbia Broadcasting Sys-

39 See, e.g., S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (19438)

(“The grounds upon which an administrative order must be

judged are those upon which the record discloses that its action

was based’’).

“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

channels to additional viewers’’ (footnotes omitted)). See also,

Teleprompter Corp. v. C.B.S., 415 U.S. 394, 408 (1974); and see

Lilly v. United States, 288 F.2d 584, 587 (4th Cir. 1956), (Cable

service is ‘‘a mere adjunct of the television receiving sets with

which it was connected ...’’).

24

tem, Inc. v. Democratic National Committee, 412 U.S.

94, 101 (1973) (‘‘Because the broadcast media utilize

a valuable and limited public resource there is also

present an unusual order of First Amendment val-

ues.’’). “{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”, C.B.S., Inc., 412 U.S.

at 118.

Petitioners contend, or at least imply, that by virtue

of their special status as privileged broadcast licensees

entitled to speak via the public’s scarce airwaves, they

thereby are further conferred with superior First

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

“ordinary’”’ citizen speaker, viz., the right to demand

that their speech be governmentally preferred over

that of all other speakers. We are aware of no prec-

edent of this Court condoning a systematic prioritiz-

ing by government of, or between, fully -protected

speech sources.*! Compare Buckley v. Valeo, 424 U.S.

1, 49-50 (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 ... ””).42 See

“The FCC’s must-carry mentality—overt discrimination be-

tween speakers—is novel and without parallel to any other media

application or context.

* See also C.B.S., Inc. v. Democratic National Committee, 412

U.S. 94, where the Court, at the instance of the broadcasting

industry, established the principle of the licensee’s “right to

exercise editorial judgment” (412 U.S. at 111) and to accord or

deny access to its communications facilities “based on its own

journalistic judgment of priorities and newsworthiness” (412 U.S.

25

also Minneapolis Star, 460 U.S. at 592 (‘no interest

... can justify” governmental discrimination between

media).

Regulation which, without subtlety, enables one en-

trepreneur, by simple demand and without charge, to

commandeer the media facilities of another for pur-

poses of distribution and publication of commercial

speech would seemingly, if not manifestly, create

presumptive problems under both the First and Fifth

Amendments to the Constitution.“* Petitioners bother

not even to discuss these fundamental flaws inherent

in the ‘‘must carry” scheme.

Licensees of broadcast television stations, like

teachers, peace officers, sanitation workers, publish-

ers and cable television operators (and sometimes even

lawyers), unquestionably make a valuable contribution

to the commonweal. But such licensees, however priv-

ileged or economically advantaged by their govern-

mental grant, do not constitute a media elite elevated

above the more pedestrian concerns of the First

Amendment. The message of a broadcaster, commer-

cial or otherwise and however entertaining, is con-

stitutionally entitled to no more governmental

protection than that accorded all speakers. The fun-

damental fallacy of the must-carry rule, like those

at 118). Ironically, the broadcaster petitioners here would have

the Court deny cable operators and programmers that same

measure of editorial autonomy.

8 See, e.g. First English Lutheran Church v. Los Angeles

County, 107 S.Ct. 2378, 2389 (1987). And see F.C.C. v. Florida

Power Corp., 107 S.Ct. 1107, 1112 (1987) (Distinguishing, in a

“takings” context, between regulations that “‘require” that ac-

cess to private property be given to others and those which

merely govern ‘‘economic relations” between consenting parties).

26

arguments of the petitioners, is the failure even to

consider this bedrock principle of constitutional law.“

3. There Are No Conflicting Decisions Rendered By

Other Federal Courts on the Same Question

Contrary to the assertions of petitioners, there is

no conflict among the circuits nor is there any

Supreme Court precedent in conflict with the holding

of the opinion below. The Eighth Circuit’s opinion in

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

Cir. 1968), petitioners’ strongest case in support of

their circuit-conflict argument, was repudiated by that

same court ten years later. The Eighth Circuit had

upheld the FCC’s must-carry rules in Black Hills on

the grounds that ‘[t]he Commission’s effort to pre-

serve local television by regulating CATVs has the

same constitutional status under the First Amend-

ment as regulation of the transmission of signals by

the originating television stations.” 399 F.2d at 69.

However, in Midwest Video Corp. v. F.C.C., 571 F.2d

1025, 1056 (8th Cir. 1978), affd. on other grounds,

440 U.S. 689 (1979), that same court stated:

[W]e have seen and heard nothing in this

case to indicate a constitutional distinction

between cable systems and newspapers in the

context of the government’s power to compel

public access.

If the Commission has any authority to in-

trude upon the First Amendment rights of

cable operators, that authority, as above in-

+4 Respondents do not recommend the opinion of the court

below as representing a model of constitutional analysis or sound

reasoning. We urge only that the ultimate result reached was

“correct”. See S.E.C. v. Chenery Corp., 318 U.S. at 88.

27

dicated, is less, not greater than its authority

to intrude upon the First Amendment rights |

of broadcasters.

In a footnote, the Eighth Circuit there limited Black

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

Nor is there any precedent of this Court arguably

upholding the constitutionality of the must-carry rules.

Although the Court 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,

467 U.S. 691 (1984), it has never purported even to

consider the constitutionality of the cable must-carry

rules. To the extent that a First Amendment chal-

lenge to cable regulations of a content-character has

even been discussed by the Court, the issue was

termed “not frivolous” in F.C.C. v. Midwest Video

Corp., 440 U.S. 689, 709, n. 19 (1979).

There is no dispute here as to the FCC’s jurisdiction

over cable or its authority to preempt state regula-

tion. The only decision made by the court below is

that the current must-carry rules which are content-

based are “incompatible with the first amendment’.

Century, App. 4a. There is no surviving judicial prec-

edent in conflict with this holding.

* In Capital Cities, the Court declined to consider the claim

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

ment rights of cable operators (467 U.S. at 700, n. 6). Similarly,

the Court in Southwestern pointedly noted the absence of a

constitutional claim in that case (392 U.S. at 181).

28

CONCLUSION

The petitions should be denied.

Respectfully submitted,

JOHN P. COLE, JR.*

COLE, RAYWID & BRAVERMAN

1919 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 659-9750

Attorneys for Respondents

CENTURY COMMUNICATIONS

CORP., et al.

April 18, 1988

* Counsel of Record.

m

fs 5