Petition for Writ of Certiorari — Office of Communication of the United Church of Christ v. Federal Communications Commission

Supreme Court brief1988

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IN THE MAR 10 1968

Supreme Court of the CAnited GtPtegem s. somwor x

CLERK

OCTOBER TERM, 1987 —

CORPORATION FOR PUBLIC BROADCASTING,

NATIONAL ASSOCIATION OF PUBLIC TELEVISION STATIONS,

AND PUBLIC BROADCASTING SERVICE,

Petitioners.

— CENTURY COMMUNICATIONS COR?., et al., -

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PAUL E. SYMCZAK

SUSAN DILLON*

CORPORATION FOR PUBLIC

BROADCASTING

1111 - 16th Street, N.W.

Washington, D.C. 206036

(202) 955-5288

BARYN S. FUTA*

MARTHA MALKIN ZORNOW

NATIONAL ASSOCIATION OF

PUBLIC TELEVISION STATIONS

1818 N Street, N.W.

Washington, D.C. 20036

(202) 887-1700

PAULA A. JAMESON

NANCY H. HENDRY*

PUBLIC BROADCASTING SERVICE

1320 Braddock Place

Alexandria, Virginia 22314

(703) 739-5000

Counsel for Petitioners

March 10, 1988

*Counsel of Record

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

QUESTIONS PRESENTED

This case involves a challenge on First Amendment

grounds to rules adopted by the Federal Communi-

cations Commission (“FCC’”’ or ‘‘Commission’’) re-

quiring, for a period of five years, that cable systems

with 20 or more channels devote a portion of their

channels to carrying local television stations and that

all cable television systems carry at least one local

public television station. These rules were adopted,

inter alia, to advance the long-standing and substan-

tial governmental interests in facilitating viewers’ ac-

cess to a diversity of program sources and, in

particular, assuring nationwide availability of public

television service. The United States Court of Appeals

for the District of Columbia Circuit invalidated the

rules, finding that the Commission had not met the

evidentiary burden imposed by this Court’s decision

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

The questions presented are:

1. Whether the court below properly applied the

standards set forth in United States v. O’Brien, supra,

and its progeny when it imposed an unreasonably

heavy evidentiary burden on the FCC to demonstrate

that the rules requiring carriage of local television

stations, including public television stations, are es-

sential to preserve viewers’ access to those stations

for a five-year period.

2. Whether the court below substituted its judg-

ment for that of the FCC in a manner inconsistent

with the holdings of this Court when it held that the

need for rules to assure viewers of continued access

to local television stations was ‘‘more speculative than

real.”’

LIST OF PARTIES

In addition to the Petitioners and Respondents, the

parties participating in the proceedings in the United

States Court of Appeals were: Century Communica-

tions Corporation; Chasco Cablevision, Ltd.; Clear-

view Cablevision Associates II; Columbia Associates,

L.P.; Daniels & Associates, Inc.; Landmark Cablevi-

sion Associates; Monmouth Cablevision Associates;

Masada Communications, Inc.; National Cablesystems,

Inc.; OCB Cablevision, Inc.; Ocean Associates; Riv-

erview Cablevision Associates; St. Charles CATV,

Inc.; United Cable Television Corp.; Association of

Independent Television Stations; Spanish Interna-

tional Communications Corp.; Univision, Inc.; The Na-

tional Association of Broadcasters; Lincoln

Broadcasting Co.; National Cable Television Associ-

ation; Office of Communications of the United Church

of Christ; National Broadcasting Co, Inc.; Richard S.

Leghorn; Hubbard Broadcasting, Inc.; and the Na-

tional Independent Television Committee.

None of the Petitioners has any parent companies,

subsidiaries, or affiliates.

TABLE OF CONTENTS

Page

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I ee eo oo cacctanmecsuuesnnssuceuseseseeh 2

oe ad sapennensnnacseenceahianengens 2

AGENCY REGULATIONS INVOLVED _ .............ceccccsscesees 3

IN MY WUE CAGE co ccasccccoccecescenccsccocccesecaeses 3

REASONS FOR GRANTING THE WRIT .............ssceeeeees 9

I. The Unreasonably Rigorous Burden of Proof

Imposed by the Court of Appeals Is Incon-

sistent with the Standard Articulated by this

Court in United States v. O’Brien .............. 11

II. The Court of Appeals Erred in Substituting

Its Judgment for that of the FCC on Critical

Communications Policy Issues .................0 17

III. The Decision Below Will Jeopardize Impor-

tant Governmental Interests, Including Pres-

ervation of a Vital Public Television

CT CEs oat dass Cl band anbaatonsnakercebuiovsnentc 22

or i aunesnasedeses 26

i nie |e ccenvanauenssseancesensasee A-l

TABLE OF AUTHORITIES

CASES: Page

Arkansas Writers Project, Inc. v. Ragland, ___U.S.

a UF nee 17n.

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

EINE | ceicsinlaiiecstedichlansissclalinisiplcsdnadeabdntandisasaiiasiadieaiasianiate 8, 12

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

I itds See, ITD sciitncaccsubibaascsaiabunnaneiaisaee passim

Century Communications Corp. v. FCC, No. 86-1683

(D.C. Cir. Jan. 29, 1988) (order clarifying

opinion issued Dec. 11, 1987) «0.0... eee 2n., 4n

City of Renton v. Playtime Theaters, Inc., 475 U.S.

41 (1986) ...... pabausaidsuanensatanadaninagannaniidees 14, 15, 17, 20

Clark v. Community for Creative Non-Violence, 468

SEsas SEE IEE adaenicacoakaanahdneinadeaebeedouseudskanacoes 14, 19

Columbia Broadcasting System, Inc. v. Democratic

National Committee, 419 U.S. 94 (1978) ........ 10, 26

FCC v. National Citizens Committee for Broad-

casting, 436 U.S. 775 (1978) ........... 15, 15n., 17, 20

FCC v. WNCN Listeners Guild, 450 U.S. 582

SMITE “eheiniilisceicicsnonbehinanastedebibdiasibasasbisiddnkelliadbneanbaeuniaiaas 12, 20

FPC v. Transcontinental Gas Pipe Line Corp., 365

Ay TEE sia ceplacetcsansnicubeeenednkceadedaamiaohaans 15

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

SUE CUPTEIEE |. Seecutphepshdidestcheiacamasnssananmamincasinauces 17n.

Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640 (1981)... 20

Members of City Council v. Taxpayers for Vincent,

IR Se I RINE asain savesiiatecaseisiasialegidadbicalnan 14, 20

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

(D.C. Cir. 1985), cert. denied, 476 U.S. 1169

EINE distaneehakinkdntsendecsondakeuanainldammebenkaandbendcuccdses passim

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

I Sahara cat ee ee 10

United States v. Albertini, 472 U.S. 675

I RG ST I Poe als nt Gar LRAT IO Pa ee 14, 20

Table of Authorities Continued

Page

United States v. O'Brien, 391 U.S. 367

RO i ineieccintkccnsdsxossudussdbuctbesandssastusemmmusantssonsonan passim

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

BET CRGGB) © cccccccecdcccchsccasenncsncsscsnsctsesessocaccsessenes 25n.

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

RIT kckecdsiscccsstidthnscnee ee liemeaann 26

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

BD CRF ccceccntsnsscssinadéusncbscsseseiniathobssanseapasanates 20

STATUTES:

28 U.S.C. § 2342 (Supp. IT] 1962) .........cccccseaseones 7

47 U.S.C. § 150 (Supp. TIT 1982). .............0s2.eses0000 13

47 U.S.C. § 307(b) (Supp. IIT 1982) ..................44. 8

47 U.S.C. § 402(a) (Supp. TT] 1962) ............00200-0.. 7

Communications Act of 1934, Pub. L. No. 98-214,

97 Stat. 1467 (1984), as amended ................. 22n.

Communications Policy Act of 1984, Pub. L. No.

98-549, 98 Stat. 2779 (1984) .....2...sccscecccesceess 22n.

Consolidated Omnibus Budget Reconciliation Act of

1986, Pub. L. No. 99-272, 100 Stat. 117

(TOI. ovsisisinmetscennceeaenntann eeseseeees 6n.

Educational Television Act of 1962, Pub. L. No. 87-

AGT, TE Beat. Gh CIDER) © wccescccssssscecssccsncecssssess 6n.

Federal Communications Authorization Act of 1983,

Pub. L. No. 98-214, 97 Stat. 1467 (1983) .... 6n.

Public Broadcasting Act of 1967, Pub. L. No. 90-

12D, Bi Beak. BOB GGT) nnrcesensncercicssncdissnees 6n., 23n.

Public Broadcasting Financing Act of 1975, Pub.

L. No. 94-192, 89 Stat. 1099 (1975) ............. 6n.

Public Telecommunications Financing Act of 1978,

Pub. L. No. 95-567, 92 Stat.

BAG: CRITE vsecccctsncsncrstastesasssavensnvcectiqeatastans 6n., 23n.

Table of Authorities Continued

Page

Omnibus Budget Reconciliation Act of 1981, Pub.

L. No. 97-35, 95 Stat. 357 (1981) .................. 6n.

REGULATIONS

GE CF Bs & FOB CRORE cocsecccconsonssnncectncstanitinstnascinns 3, 3n.

GT CFR. GO FORee CN) eeneecsnntomnnnae 3n.

GT CBR. 9 TRE COED cccesescccncsnsscsnscsnssonicses 3n.

ST Go as G Tee CREE decectetnsccacionstinenucn 3n.

47 C.F.R. $§ 76.55-76.62 (1967) ............................ 3

CT GP Be. B TOS CHOGGE | cecceviccssstsncienmveauins 3n.

GT C.F ae © Fe Cree. scicsaccehanatianeatseiinnies 3

GT Ca es B TE CED... vednccscccenssemasmsenssoseaientes 4n.

ADMINISTRATIVE SOURCES:

Amendment of Part 76 of the Commission's Rules

Concerning Carriage of Broadcast Signals by

Cable Television Systems, 1 F.C.C. Red. 864

(1986), recon. denied, 2 F.C.C. Red. 3593

ERGUED cniscnsisectsacesdguaeubotissthadeeuien oul dieaameniediaael passim

Multiple Ownership Rules, 57 R.R.2d 966

CRENUED scoccccectcnactuocecccheunannenianbedatnacsiananiaabearaiens 25n.

Report and Order in Docket No. 78-391, 90 F.C.C.2d

SORE TED GEN ccciciccenutnsniasagneanene 25n.

Sizth R and Order on Television Assignments,

Gh FAA. TED CRED ccecscccessterscsisionsucsestonees 6n., 23n.

Television Channel Utilizations, FCC Report, No-

vember 29, 1965, Table 1 .....ccccccccccscccccsceseees 25n.

OTHER SOURCES:

Cablevision, September 23, 1985, at 11. ............... 13n.

Cablevision, September 30, 1985, at 12) ............... 13n.

Cablevision, August 4, 1986, at 63 0.0... 13n.

Table of Authorities Continued

Carnegie Commission on Educational Television,

Public Television: A Program for Action

aa a

H.R. Rep. No. 1178, 95th Cong., 2d Sess. 2

(1978)

S Rep. No. 858, 95th Cong.., 2d Sess. 6-7

(1978)

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1987

CORPORATION FoR PUBLIC BROADCASTING,

NATIONAL ASSOCIATION OF PUBLIC TELEVISION STATIONS,

AND PUBLIC BROADCASTING SERVICE,

Petitioners,

— CENTURY COMMUNICATIONS CORP., et al -

"©

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners are the national public television organiza-

tions. The Corporation for Public Broadcasting is a private,

nonprofit corporation whose creation was authorized by

the Public Broadcasting Act of 1967 and which is financed

primarily by federal appropriations to support the nation’s

public broadcasting system. The National Association of

Public Television Stations (‘““NAPTS’’) and the Public

Broadcasting Service (‘PBS’) are private nonprofit mem-

bership organizations whose members are licensees of vir-

tually all of the nation’s public television stations. NAPTS

supports planning, research and representational activities

on behalf of its members. PBS is the national program

distribution arm of the nation’s public television stations,

providing distribution and other program-related services

to its members. Petitioners were Intervenors below, sup-

porting the FCC’s rules requiring cable carriage of public

television stations.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is Century Communica-

tions Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987) (‘‘Cen-

tury Communications’’).! That opinion reviewed the FCC’s

decisions in Amendment of Part 76 of the Commission’s

Rules Concerning Carriage of Broadcast Signals by Cable

Television Systems, 1 F.C.C. Red 864 (1986) (“Report and

Order’) (J.A. 32a-204a), recon. denied, 2 F.C.C. Red 3593

(1987) (‘Reconsideration Order’’) (J.A. 205a-330a).?

JURISDICTION

The judgment of the Court of Appeals was released on

December 11, 1987. This Court has jurisdiction under 28

U.S.C. § 1254(1) (Supp. III 1982).

‘Joint Appendix la-28a (hereinafter, ‘‘J.A. ___’’). The Court issued

an Order on January 29, 1988 clarifying the scope of its holding. On

February 24, 1988, Century Communications Corp., et al., filed a

Petition for Rehearing of the January 29 Order. That petition is still

pending.

- These Commission decisions followed the decision in Quincy Cable

TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S.

1169 (1986) (“Quincy Cable TV’’), which invalidated the mandatory

carriage rules adopted by the FCC in 1966. Those rules required cable

systems to carry virtually every local television station without regard

to the financial condition of stations entitled to carriage, the size of

the cable system, the program preferences of cable subscribers, or any

other factor affecting the stations’ need for carriage or the burden

imposed on the cable operator. The court held that the rules were

invalid under the First Amendment because they were too broad, 768

F.2d at 1460-62, and because the FCC had never demonstrated by

substantial evidence the need for those rules, relying instead on its

intuitive judgment that mandatory carriage rules were needed to pro-

tect local broadcasters from diversion of their audience by cable sys-

tems. Jd. at 1457-59.

AGENCY REGULATIONS INVOLVED

The FCC regulations invalidated by the Court of Appeals

are set forth in the Statutory Appendix attached to this

Petition. They are codified at 47 C.F.R. §§ 76.5, 76.55-

76.62, 76.64 (1987).

STATEMENT OF THE CASE

This case presents the issue of whether the court below

improperly substituted its judgment for that of the Com-

mission and improperly applied United States v. O'Brien,

supra, when it imposed an unreasonably heavy evidentiary

burden on the FCC to justify its rules requiring certain

cable television systems to devote a portion of their ca-

pacity to the carriage of local television stations for a five-

year period. The rules were adopted to assure the public’s

continued access to the diversity of programming offered

by local television stations, including public television sta-

tions, during the transition to a deregulated marketplace

in which the FCC anticipated cable operators and broad-

casters would compete for viewers. Report and Order at

¢ 134 (J.A. 105a).

The rules provided, in essence, that cable television sys-

tems with 20 or more channels would devote up to 25%

of their channels to carriage of local television stations.’

' Specifically, the rules required cable operators with 20-29 channels

to devote up to 7 channels, and cable systems with 30 or more channels

to devote up to 25% of their channels, to the carriage of ‘‘qualified’’

local television stations. 47 C.F.R. § 76.56 (1987). ‘‘Qualified’’ local

stations were defined as those that are licensed to a community within

50 miles of the cable system and that attract a specified percentage

of television viewers. 47 C.F.R. § 76.5 (1987). Public television stations

were exempted from the viewing standard in light of their mandate

to present alternative programming that frequently attracts discrete

rather than mass audiences, and new commercial stations were given

one year to satisfy the viewing standard. Report and Order at 4 117

(J.A. 95a); Reconsideration Order at 47 C.F.R. §§ 131-141 (J.A. 287a-

294a). Compare 47 C.F.R. § 76.5(1Xi) with 47 C.F.R. §§ 76.5(1\ii) and

76.5(2) (1987).

Because of the substantial governmental interest in as-

suring viewers of access to public television stations and

the heightened need of those stations for cable carriage

to reach their communities, the Commission adopted spe-

cial rules for public television. Those rules required all

cable systems, regardless of channel capacity, to carry at

least one local public television station and systems with

54 or more channels to carry at least two. Report and

Order at € 117 (J.A. 95a-96a); Reconsideration Order at

€ 66 n.31, € 134 (J.A. 245a, 289a-290a). Cable systems

were required to carry additional local public television

stations if they did not otherwise fill up their ‘“‘must-carry”’

quota. Reconsideration Order at ¢ 134 n.67 (J.A. 289a).*

The must-carry rules adopted by the FCC were to re-

main in place for five years, at which point the FCC

planned to review them to determine if they were still

necessary to protect the public’s ability to receive local

television stations. Report and Order at 4 137 (J.A. 110a).

The FCC also required cable systems to inform their sub-

scribers of the need to acquire antennas and input selector,

or “‘A/B,”’ switches to receive local television stations not

carried by the cable system. Report and Order at 4 140-

42 (J.A. 112a-114a); Reconsideration Order at 4¢ 95-101

(J.A. 266a-270a). These ‘‘educational’’ portions of the rules

were to continue in effect even after the must-carry re-

quirements expired.°*

‘In contrast, cable systems were only required to carry one local

station affiliated with a commercial television network in each market.

*> Cable operators were required to inform their subscribers semi-

annually that (1) cable systems are not required to carry all local tel-

evision stations, (2) in five years they would not be required to carry

any local television stations, and (3) an antenna system and an A/B

switch would be necessary for cable subscribers to watch programs

offered by local stations that are not carried on the cable system. Cable

operators were also required to identify any local television stations

not carried by their system, and to provide information about A/B

switches. 47 C.F.R. § 76.66 (1987). The decision below did not invalidate

The FCC found that, since 1966, when it adopted the

must-carry rules invalidated in Quincy Cable TV, supra,

cable had matured from a service that was ancillary to

broadcasting to an independent media voice. Report and

Order at 4 114 (J.A. 93a). Thus, it concluded that the

basis on which the 1966 rules had rested—the protection

of local broadcasting—was no longer appropriate but that

there was a substantial federal interest in ‘‘maximizing the

choices of television programming available to viewers.”

Id. at € 115 (J.A. 94a). It also concluded that the First

Amendment required that the need to preserve viewer

access to local television programming must be balanced

against the impact of any rules designed to further that

goal on cable operators’ and cable programmers’ First

Amendment rights. Jd. at ¢ 120 (J.A. 97a-98a).

Since cable sv »scribers were accustomed to their cable

systems carrying all local television stations and since

many cable systems had, in marketing their services, rep-

resented that subscribers would no longer need antennas

to receive local stations, the FCC concluded that the public

was under a ‘“‘misperception’’ that cable systems would

always carry all local stations. Report and Order at €

121-134 (J.A. 98a-109a). To protect the substantial gov-

ernmental interest in assuring continued viewer access to

local television programming, particularly public television

programming, the FCC required cable operators to devote

some of their channels to local television stations until

cable subscribers become accustomed to the need to install

antenna systems and A/B switches. Jd. at 4 136-39 (J.A.

109a-112a). Estimating that this transition would take

about five years, the FCC imposed must-carry require-

ments for that period. Jd. at 4 137 (J.A. 110a).

The special cable carriage protection that the FCC ac-

corded public television stations reflects the long-standing

these educational aspects of the rules. See Century Communications

Corp. v. FCC, No. 86-1683 (D.C. Cir. Jan. 29, 1988) (order clarifying

opinion issued Dec. 11, 1987) (J.A. 29a-31a). But see note 1 supra.

recognition by the FCC and Congress of public television’s

unique role. Report and Order at 4 117 (J.A. 96a); Re-

consideration Order at 44 134, 137-38 (J.A. 289a-293a).

The Commission has long recognized that public televi-

sion’s mission is to provide an alternative to the mass

audience programming offered by commercial stations. It

reserved channels exclusively for noncommercial educa-

tional use because it believed that noncommercial educa-

tional entities, insulated from the commercial imperative

to program exclusively for mass audiences, would enhance

the diversity of programming made available to the public

and would be able to serve discrete audiences with special

needs and interests.*®

To enable public broadcasting to fulfill that role, Con-

gress has authorized $1.5 billion for educational broad-

casting facilities and programming over the past twenty-

five years.” Federal assistance has enabled public television

to expand its coverage to most of the country and provide

quality programming produced for educational and other

noncommercial purposes, in contrast to the programming -

offered by commercial television, which is designed to gar-

ner the highest possible audience ratings so that it will

generate the most advertising revenue. The Commission

found that cable carriage of public television stations is

* See Sixth Report and Order on Television Assignments, 41 F.C.C.

148, 159-62 {1952). See also id. at 582 (Comm’r Hennock concurring

in part and dissenting in part). See generally Carnegie Commission on

Educational Television, Public Television: A Program for Action (1967),

’ See Educational Television Act of 1962, Pub. L. No. 87-447, 76 Stat.

64 (1962); Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81

Stat. 365 (1967); Public Broadcasting Financing Act of 1975, Pub. L.

No. 94-192, 89 Stat. 1099 (1975); Public Telecommunications Financing

Act of 1978, Pub. L. No. 95-567, 92 Stat. 2405 (1978); Omnibus Budget

Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357 (1981);

Federal Communications Commission Authorization Act of 1983, Pub.

L. No. 98-214, 97 Stat. 1467-69 (1983); Consolidated Omnibus Budget

Reconciliation Act of 1986, Pub. L. No. 99-272, 100 Stat. 117 (1986).

essential if they are to continue fulfilling their unique role

and achieve Congress’ objective of reaching as much of

the population as possible. Report and Order at ¢ 117 (J.A.

95a-96a); Reconsideration Order at 44 67 n.31, 134 (J.A.

245a, 289a-290a).

The court below did not challenge the importance of the

governmental interests in maximizing program diversity

or in assuring nationwide availability of public television

service. Century Communications at 300 (J.A. 18a). None-

theless, it invalidated the rules on the grounds that, “‘as

in Quincy Cable TV, the FCC’s judgment that transitional

rules are needed is predicated not upon substantial evi-

dence but rather upon several highly dubious assertions of

the FCC, from which we conclude that the need for a new

saga of must-carry rules is more speculative than real.”

Id. The court concluded that, because the new rules af-

fected First Amendment interests, the “‘substantial defer-

ence’”’ normally accorded administrative agencies had “‘little

relevance”’ to the rules at issue here. Jd. at 299 (J.A. 16a).

Purporting to apply United States v. O’Brien, supra, it

therefore held that the FCC had a heavy burden of dem-

onstrating by substantial evidence that the rules were es-

sential to protect the governmental interest in assuring

the public’s access to the maximum diversity of program

sources and that the rules were the least intrusive means

of achieving that objective.*

Applying that test, it found ‘‘scant evidence’’ that cable

subscribers were under the ‘‘misperception’’ that cable sys-

tems would always carry local stations and faulted the

FCC for not supporting that conclusion with studies of

subscriber expectations. Century Communications at 300

* The court below had jurisdiction over this case pursuant to 47 U.S.C.

§ 402(a) and 28 U.S.C. § 2342 (Supp. III 1982).

(J.A. 19a).° Further, the court accorded no weight to the

Commission’s predictive judgment that it would take ap-

proximately five years to effect an orderly transition to a

competitive marketplace, even though the FCC is the ex-

pert agency on such matters. Rather, relying on its own

observations of consumer behavior, the court stated that

‘‘we simply cannot accept, without evidence to the con-

trary, the sluggish profile of the American consumer that

the Commission’s argument necessarily presupposes.’ Jd.

at 302 (J.A. 24a). It also ignored the FCC’s finding that

some additional technical work was needed in the design

and manufacturing of A/B switches before certain technical

problems could be solved. Report and Order at § 165 (J.A.

128a).

While the court subjected the evidentiary support for.

the new rules to exacting scrutiny in order to protect cable

operators’ First Amendment rights, it failed to devote

equal attention to the public’s First Amendment interest

in access to diverse program sources or to the long-stand-

ing governmental interest in fostering local broadcast out-

lets and, in particular, a vigorous public television system.

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

714 (1984); 47 U.S.C. § 307(b). See also notes 21 and 26

infra. The court thus effectively concluded, although it did

not expressly so hold, that cable operators’ interest in

selecting the programming offered to their subscribers out-

weighs both the First Amendment interests of the public

in access to diverse programming from all sources and

the policy fostering local broadcast outlets. Yet the same

court, in its decision in Quincy Cable TV, recognized that

* The court rejected the Commission's reliance on a study submitted

by the National Association of Broadcasters that demonstrated the ex-

tent to which cable subscribers lacked the antenna systems necessary

to receive stations not carried by their cable systems, concluding it

“provides only the spongiest of foundations for the FCC’s asserted —

justification for its regulations.” Jd. at 300-302 (J.A. 20a-23a).

cable’s control over the programming made available to

subscribers could impair the viability of broadcast stations,

and that ‘“‘the complete displacement of expressive outlets

attuned to the needs and concerns of the communities they

serve not only would contravene a long-standing historical

tradition of locally oriented press but might itself disserve

the objective of diversity.”’ 768 F.2d at 1462.

The court below also completely ignored the unique con-

siderations applicable to public television, even though the

petitioners filed a brief addressing those issues. As

petitioners showed, the FCC found in its Report and Order

and Reconsideration Order that public television plays a

unique role in the American broadcast system, and that

its continued fulfillment of that role, which reflects long-

standing congressional and FCC policies, required special

cable carriage protection for public television stations. See

Report und Order at 4 117 (J.A. 96a); Reconsideration

Order at 44 131-41 (J.A. 289a-293a). The court nonetheless

invalidated the rules requiring carriage of public television

stations as if they had no justification other than that

applicable to commercial stations.

REASONS FOR GRANTING THE WRIT

In the decision below, the court has, for the second time

in two years, struck down as violative of the First Amend-

ment FCC regulations requiring cable systems to carry

certain local television stations. In so doing, the court has

frustrated realization of long-standing congressional and

FCC goals fundamental to federal regulation of the com-

munications industry: facilitating viewers’ access to a di-

versity of program sources; fostering a system of local

television outlets; and, in particular, promoting the devel-

opment of a nationwide system of local public television

stations that provides ‘‘a form of television service that

is not subject to the same marketplace forces as com-

mercial broadcast and cable television.’’ Report and Order

at ¢ 117 (J.A. 96a).

The court’s decision represents an abrupt departure from

this Court’s decisions establishing the standards by which

regulations incidentally affecting free expression should be

judged; it effectively subjected the FCC’s rules to the ex-

acting scrutiny required where regulations directly affect

speech. The decision is also at variance with decisions of

this Court concerning the proper role of the judiciary in

reviewing regulations that incidentally affect speech. In-

deed, it carves out a new role for the federal judiciary in

reviewing administrative agency decisions with potentially

far-reaching consequences for the administrative process.

It is imperative that this Court review the errors in the

decision below because, if allowed to stand, it will obstruct

achievement of important federal regulatory and policy ob-

jectives, including those specifically supporting public tel-

evision. The decision also seriously undermines the FCC’s

ability to balance, under the regulatory scheme of the Com-

munications Act, the First Amendment interests of broad-

casters, cable operators, and the viewing public, and

imperils, in the name of the First Amendment, the well-

established policy protecting the public’s First Amendment

interest in receiving a diversity of ideas from a multiplicity

of sources. See, e.g., Columbia Broadcasting System, Inc.

v. Democratic National Committee, 412 U.S. 94 (1973); Red

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

For these reasons, petitioners submit that there is a

compelling need for the Court to review the decision be-

low.?°

° The need for this Court’s review is far more compelling than was

the need for such review of Quincy Cable TV, supra, which struck

down the FCC’s original must-carry rules two years ago. In Quincy

Cable TV, the court invalidated the FCC’s must-carry rules, adopted

two decades earlier, on the grounds that the FCC had “‘never recon-

sidered or seriously questioned the elaborate and concededly speculative

premises on which its economic defense of the rules rests,” and that

the rules were overbroad and drafted with little attempt to accom-

I. The Unreasonably Rigorous Burden of Proof Imposed

by the Court of Appeals Is Inconsistent with the

Standard Articulated by this Court in United States

v. O’Brien.

The court below did not find it necessary to decide the

precise level of First Amendment protection due cable op-

erators because it concluded that the new must-carry rules

failed to satisfy even the relatively lenient standard es-

tablished in United States v. O’Brien, supra, for scrutiny

of regulations incidentally burdening speech. In O’Brien,

this Court stated:

[W]e think it clear that a government regulation

is sufficiently justified if it is within the consti-

tutional power of the Government; if it furthers

an important or substantial governmental inter-

est; if the governmental interest is unrelated to

the suppression of free expression; and if the

incidental restriction on alleged First Amend-

ment freedoms is no greater than is essential to

the furtherance of that interest.

391 U.S. at 377.

modate cable operators’ First Amendment rights. 768 F.2d at 1442,

1460-62. The court invited the FCC to ‘‘recraft the rules in a manner

more sensitive to the First Amendment concerns’ expressed by the

court. Jd. at 1463. At the time the petition for certiorari was pending

before this Court, the FCC had before it several petitions for rule-

making requesting the adoption of new must-carry rules. This Court’s

review of Quincy Cable TV would thus have been premature because

it appeared that the FCC might well adopt new rules.

The FCC has now completed its comprehensive rulemaking pro-

ceeding in which over 170 parties from all affected sectors of the

communications industry participated, and in which it took great pains

to accommodate cable companies’ First Amendment rights. See Report

and Order at 44 160-72 (J.A. 125a-132a). With these modest new must-

carry rules invalidated by a decision imposing an impossibly rigorous

burden of proof, this case is ripe for review by this Court.

The court below did not question the importance of the

governmental interests cited by the FCC as necessitating

the interim rules: promoting maximum diversity in pro-

gram choices available to the public and furthering the

development of public television service. Report and Order

at 44 121-34 (J.A. 98a-106a). Indeed, the Court could hardly

challenge the governmental interest in promoting diverse

program sources, given this Court’s repeated, explicit, and

recent recognition of its importance. See, e.g., Capital Cit-

ies Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984) (“[t}]here

can be little doubt’”’ that the FCC’s must-carry rules “‘re-

flect an important and substantial federal interest’ by pro-

tecting noncable households from loss of local television

service and increasing the diversity of programming avail-

able to viewers); FCC v. WNCN Listeners Guild, 450 U.S.

582, 594 (1981) (deeming the “policy of promoting the

widest possible dissemination of information from diverse

sources to be consistent with both the [FCC’s] public-in-

terest standard and the First Amendment”’); FCC v. Na-

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

795 (1978).

Rather, the court concluded that the FCC’s judgment

that must-carry rules are needed for a five-year period

was not based on ‘“‘substantial evidence.’’ Century Com-

munications at 300 (J.A. 18a). The court reached that

conclusion based not on a review of the record as a whole

to determine whether there was a reasonable basis for the

FCC’s conclusions, but rather on a hypercritical scrutiny

of the evidentiary support for each and every FCC finding.

Specifically, the court took issue with the FCC’s conclu-

sions that (1) there is a widespread misperception among

cable subscribers that their only means of access to tel-

evision programming is through their cable system, and

(2) it will take five years to educate consumers concerning

the need for antennas and A/B switches to receive tele-

vision signals over-the-air and to allow them sufficient time

to install such equipment. Jd. at 300-05 (J.A. 18a-29a).

ee |

The court also criticized the FCC’s ‘‘assumption”’ that

cable companies would drop local television stations in the

absence of must-carry rules, Century Communications, 835

F.2d at 303 (J.A. 24a-25a)—an assumption supported by

evidence in the record that some cable systems had ceased

carrying some television stations following the court’s in-

validation of the prior must-carry rules in Quincy Cable

TV. Report and Order at ¢ 131 (J.A. 104a). The court

discounted the FCC’s judgment that cable operators’ con-

duct during the pendency of its rulemaking was not a

reliable indicator of their future willingness to carry local

television stations, given the restraining effect of the pend-

ing rulemaking, the appeal of the Quincy decision to this

Court, and warnings by the National Cable Television As-

sociation. Century Communications, 835 F.2d at 303 (J.A.

25a-26a).'! The court found instead that the FCC should

have given more weight to conclusions reached by the

Department of Justice and the Federal Trade Commission

that the absence of must-carry rules would not harm local

television, id., even though the FCC, not the FTC or the

Justice Department, is the expert agency charged by Con-

gress with assuring the availability of a nationwide system

of local broadcast stations. See 47 U.S.C. § 150 (Supp. III

1982).

Finally, the Court essentially ignored the FCC’s ration-

ale that the need for improvement in input selector switch

technology justified continuation of the must-carry rules

for five years. See Report and Order at 4 165 (J.A. 128a);

'' The cable industry was also well aware that members of Congress

with responsibility for oversight of the agency had communicated to

the FCC their concerns regarding the continued need for must-carry

regulations following the Quincy Cable TV decision. See, e.g., Cable-

vision, September 23, 1985, at 11; Cablevision, September 30, 1985, at

12; Cablevision, August 4, 1986, at 63. See also Report and Order at

q 28 and n.53 (J.A. 48a-49a).

Reconsideration Order at 4 62 (J.A. 241a-242a).'* It also

ignored the FCC’s explanation that the five-year period

would give the agency an opportunity to observe the tran-

sitional cable and broadcast marketplace to determine

whether it should, in a subsequent rulemaking, extend

must-carry regulation in particular instances after the ex-

piration of the five-year period. See Report and Order at

€ 75 (J.A. 73a).

This exacting scrutiny by the court, and its rejection of

the FCC’s conclusions whenever it disagreed with the

FCC’s findings or rationales, imposed an unreasonably rig-

orous burden on the FCC and is inconsistent with holdings

of this Court applying United States v. O'Brien, supra.

Those decisions, as shown below, require the courts to

afford agencies reasonable latitude to determine the need

for regulation and the appropriate regulatory approach for

meeting those needs, even when First Amendment rights

are incidentally affected. See, e.g., City of Renton v. Play-

time Theaters, Inc., 475 U.S. 41 (1986); Clark v. Com-

munity for Creative Non-Violence, 468 U.S. 288 (1984);

United States v. Albertini, 472 U.S. 675 (1985); Members

of City Council v. Taxpayers for Vincent, 466 U.S. 789

(1984).

This Court has recognized that governmental objectives

such as diversity of program sources are not easily defined

* The Court mischaracterized the FCC’s conclusion in this regard,

stating that the FCC had found broadcasters’ concerns about the tech-

nical adequacy of input selector switches “‘overstated.’’ Century Com-

munications, 835 F.2d at 302-03 n.5 (J.A. 24a). In fact, the FCC found

that ‘“‘many of these concerns are overstated and that the rest can be

mitigated or resolved by development and improvement of new and er-

isting input selector switches to meet particular needs."’ Report and

Order at 4 165 (emphasis added) (J.A. 128a). It then specifically cited

as one reason for its decision to enforce the rules for five years its

“recognition that there may be room for improvement in the technology

of input selector switches.’’ Jd. See also Reconsideration Order at { 62

(J.A. 241a-242a).

or measured, and that the FCC, in seeking to foster such

diversity, is ‘‘entitled to rely on its judgment, based on

experience’ that particular measures will advance its goal

of diverse programming. FCC v. National Citizens Com-

mittee for Broadcasting, 436 U.S. 775, 797 (1978). When

factual determinations by the FCC are primarily of a judg-

mental or predictive nature, as they were in this case, this

Court has acknowledged that “complete factual support in

the record for the Commission's judgment or prediction is

not possible or required ....’’ Jd. at 814. Rather, ‘‘a fore-

cast of the direction in which future public interest lies

necessarily involves deductions based on the expert knowl-

edge of the agency.’ Jd. at 814, quoting FPC v. Tran-

scontinental Gas Pipe Line Corp., 365 U.S. 1, 29 (1961).'°

This Court, applying O’Brien, recently reaffirmed this

principle in City of Renton v. Playtime Theatres, Inc., su-

pra. In that case, the Court reversed a Ninth Circuit de-

cision invalidating a zoning ordinance as violative of the

First Amendment on the grounds that the city’s justifi-

cations for the ordinance were ‘“‘conclusory and specula-

tive.’ This Court held that the court of appeals had

imposed an ‘“‘unnecessarily rigid burden of proof’’ on the

city, notwithstanding the First Amendment interests at

stake:

The First Amendment does not require a city,

before enacting such an ordinance, to conduct

new studies or produce evidence independent of

that already generated by other cities, so long as

whatever evidence the city relies upon is reason-

‘In National Citizens Committee for Broadcasting, the Court held

that the FCC's fear that local ownership of broadcast stations would

decline if the FCC required divestiture of existing newspaper/broadcast

combinations was ‘‘grounded in a rational prediction, based on its

knowledge of the broadcasting industry and supported by comments in

the record ...."’ 436 U.S. at 808. The same can be said of the FCC’s

judgment in this case that must-carry rules are needed to assure con-

tinued viewer access to diverse program sources.

ably believed to be relevant to the problem that

the city addresses.

475 U.S. at 51 (emphasis added).

The court below held the FCC to a much higher stand-

ard of proof than that required by this Court’s decisions.

The FCC found that empirical data were sparse concerning

the effects on local signal carriage of abruptly discontin-

uing the must-carry rules. Moreover, it concluded that such

data could not, in any event, provide an accurate forecast

of such effects, given the changing competitive incentives

of cable operators resulting from the introduction of new

satellite programming services and their increasing efforts

to sell time to local advertisers, in competition with local

broadcasters. Report and Order at 44 39, 183 and n.159

(J.A. 54a-55a, 105a, 149a); Reconsideration Order at 4

68-69 (J.A. 245a-247a). Therefore, the FCC justifiably based

its decision to adopt modest must-carry rules on available

evidence demonstrating cable subscribers’ failure to main-

tain off-the-air reception capability, the nationwide level of

cable penetration,’ competitive incentives of cable com-

panies not to carry local television stations, evidence that

cable systems had ceased carriage of some television sta-

tions following invalidation of the prior must-carry rules,

and the need for improvement in input selector switch

technology.

'* Cable systems presently serve approximately 50% of the nation’s

television households and in some communities as much as 80 to 90%

of the television households subscribe to cable service. In the vast

majority of these cases, cable subscribers are completely dependent on

the cable system for television programming, either because they have

dismantled their own antenna systems or because the terrain, natural

or man-made, prevents adequate off-the-air reception of even local sta-

tions.

Furthermore, cable carriage affects a television station’s ability to

serve not only cable subscribers, but nonsubscribers as well, because

exclusion from the cable system may significantly undermine a station’s

financial base.

As required by City of Renton, the agency relied upon

evidence reasonably believed to be relevant to the problem

it addressed. And, as permitted by National Citizens Com-

mittee for Broadcasting, it made a rational forecast of how

best to promote diversity of programming and preserve

the viability of local television stations in the absence of

conclusive evidence of cable company or viewer behavior

in a post-must-carry environment. The court’s imposition

of a more rigorous burden of proof on the FCC is incon-

sistent with these Supreme Court precedents; the court,

in effect, subjected the FCC’s rules to the exacting scru-

tiny required where regulations directly affect speech.’

II. The Court of Appeals Erred in Substituting Its

Judgment for that of the FCC on Critical Commu-

nications Policy Issues.

Dissatisfied with the record relied upon and the judg-

ments made by the FCC in adopting new must-carry rules,

the court below substituted its own judgment regarding

the need for such rules. Indeed, the court explicitly es-

chewed any obligation under this Court’s precedents to

defer to the FCC’s judgments on critical communications

policy issues on the grounds that the regulations at issue

incidentally burdened free expression. Century Communi-

cations, 8385 F.2d at 299 (J.A. 16a).'*

‘> Compare Century Communications, supra, with Arkansas Writers’

Project, Inc. v. Ragland, U.S. , 107 S. Ct. 1722, 1728-29 (1987)

(state sales tax imposed selectively on magazines based on content

violated First Amendment where state failed to sustain its heavy burden

of demonstrating that law served a compelling state interest and was

narrowly drawn to achieve that end) and First National Bank of Boston

v. Bellotti, 4835 U.S. 765, 786-92 (1977) (state statute prohibiting cor-

porations from spending funds to support or oppose referenda did not

withstand “exacting scrutiny’’ necessary to sustain it under First

Amendment where governmental interests asserted by state were not

adequately supported by record or legislative findings).

‘6 The court below cited several decisions of this Court to support

its assertion that ‘“‘the Supreme Court has often noted that the sub-

Specifically, the court questioned the FCC’s judgr ent

that it will take five years to effect an orderly trans..on

to a competitive marketplace. Century Communications 835

F.2d at 301-02 (J.A. 22a-24a). Based on the judges’ own

observations concerning consumer acceptance of other elec-

tronic devices, the five-year period adopted by the FCC

appeared to the court a ‘strikingly long’”’ time for con-

sumers to learn of, purchase, and install the requisite

equipment to receive television broadcast programming. Id.

at 302, 304 (J.A. 24a, 26a-28a). And the court disclaimed

any obligation to defer to the agency’s judgment regarding

what it considered a matter simply of ‘‘consumer instincts”

as to which the FCC has no special expertise. Jd. at 304

(J.A. 26a-28a).!7 The court also rejected the FCC’s judg-

ment that there was a substantial risk that cable com-

panies would drop local stations in the absence of must-

carry rules. Jd. at 303 (J.A. 25a).

The court’s refusal to afford the FCC any latitude to

exercise its expert judgment in addressing issues mani-

festly within its sphere of expertise is inconsistent with

the substantial body of this Court’s decisions requiring

stantial deference due in the administrative context has little relevance

when first amendment freedoms are even incidentally at stake.’’ Cen-

tury Communications, 835 F.2d at 299 (J.A. 16a). Those decisions es-

tablish that the government must demonstrate, under United States v.

O'Brien, supra, that regulations incidentally burdening speech further

a substantial governmental interest and are no more intrusive than

necessary to further that interest, and that a reviewing court may not

simply assume that to be the case. Contrary to the court of appeals’

suggestion, however, those decisions do not suggest that it is appro-

priate for a reviewing court to subject regulations that incidentally

burden speech to exacting scrutiny or to substitute its judgment for

that of the agency.

‘* The court below ignored the fact that there were reasons why the

FCC chose to keep the rules in effect for five years quite aside from

consumer sluggishness in learning of and installing switches and an-

tennas. See Report and Order at ¢ 165 (J.A. 128a); Reconsideration

Order at 44 62, 75 (J.A. 241a-242a, 250a-251a).

—————— << LLU

judicial deference to expert agency judgments, even where

the governmental action at issue incidentally burdens free

expression. While it is true that, where regulations impli-

cate First Amendment interests, the reviewing court must

examine whether they further a governmental interest of

sufficient importance to justify the burden on First Amend-

ment rights, the degree of deference appropriately ac-

corded the agency’s judgment depends upon whether the

regulations directly affect speech or only incidentally bur-

den it. Precedents of this Court make it clear that the

more exacting scrutiny required of regulations directly af-

fecting speech is inappropriate when the burden on speech

is incidental, as it is here.’

For example, in Clark v. Community for Creative Non-

Violence, supra, this Court reversed the District of Co-

lumbia Circuit’s en banc determination that Department of

Interior regulations prohibiting camping in certain parks

violated the First Amendment when applied to prohibit

demonstrators from sleeping in parks to dramatize the

plight of the homeless. This Court held that the camping

proscription served a substantial governmental interest in

conserving park property. The Court rejected the court of

appeals’ view that the regulation was invalid because there

were less speech-restrictive measures that could have

served the government’s interest, such as limiting the size,

duration, or frequency of demonstrations:

[These suggestions represent no more than a dis-

agreement with the Park Service over how much

protection the core parks require or how an ac-

ceptable level of preservation is to be attained.

‘® See note 15 supra. As the Commissien properly concluded, its must-

carry regulations are not designed to favor or burden any particular

viewpoints, but rather to achieve a content neutral purpose—fostering

a diversity of programming—and thus need satisfy no more stringent

a test than that set forth in United States v. O’Brien, supra. Report

and Order at 44 188-189 (J.A. 145a-146a).

We do not believe, however, that either United

States v. O’Brien or the time, place, or manner

decisions assign to the judiciary the authority to

replace the Park Service as the manager of the

Nation’s parks or endow the judiciary with the

competence to judge how much protection of park

lands is wise and how that level of conservation

is to be attained.

468 U.S. at 299 (emphasis added).

Similarly, in City of Renton v. Playtime Theatres, Inc.,

supra, this Court found no constitutional defect in the

method chosen by the city to protect residential neigh-

borhoods from the secondary effects of adult theatres. The

Court stated that it was not an appropriate judicial func-

tion to appraise the wisdom of the city’s decision to further

its substantial interests in one way—there, by concentrat-

ing adult theatres in certain areas—rather than another,

such as by dispersing adult theatres. The Court stated that

“the city must be allowed a reasonable opportunity to ex-

periment with solutions to admittedly serious problems.’

475 U.S. at 52, quoting Young v. American Mini Theatres,

Inc., 427 U.S. 50, 71 (1976) (emphasis added).

And, in United States v. Albertini, supra, this Court

held that the validity of a particular regulation ‘‘does not

turn on a judge’s agreement with the responsible decision

maker concerning the most appropriate method for pro-

moting significant government interests,’’ even where the

regulation burdens the exercise of First Amendment rights.

Accord, Members of City Council v. Taxpayers for Vincent,

supra at 795-804, 807; Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S. 640, 654-55 (1981);

FCC v. WNCN Listeners Guild, 450 U.S. 582, 596 (1981);

FCC v. National Citizens Committee for Broadcasting, 436

U.S. 775, 803(1978).

Contrary to the principle firmly established in these

cases, the court below denied the FCC any freedom to

experiment with solutions to admittedly serious problems

associated with the power of cable systems to control

viewer access to local television stations. Rather, in an

opinion stunning for its rigidity, it struck down the FCC’s

efforts to enact a modest regulatory program designed to

preserve a competitive environment for television pro-

gramming while the Commission has an opportunity to

assess the effects of its A/B switch and consumer edu-

cation requirements. The court’s usurpation of the FCC’s

authority to regulate the communications industry and its

substitution of its judgments for those of the FCC are

inconsistent with this Court’s precedents.

The court’s refusal to afford the FCC any latitude to

exercise its judgment, as required by this Court’s decisions,

is particularly intolerable here given the manifest impor-

tance of the governmental interests at stake—interests that

have been recognized by this Court as central to federal

regulatory policies for the communications industry'*—and

the minimal intrusion on cable operators’ editoriai discre-

tion resulting from the FCC’s interim rules. As the court

below conceded,”° these rules are far less sweeping than

those struck down in the Quincy Cable TV decision. They

require cable operators to set aside a maximum of one-

third of their channels for carriage of local television sta-

tions, leaving the cable operators broad discretion to carry

other program services. They impose a viewing standard

on commercial stations to qualify for mandatory carriage,

thus ensuring that cable systems are not required to carry

stations their subscribers have no interest in receiving.

And by limiting the duration of the rules to five years—

the minimum deemed necessary by the FCC to advance

the purposes of the rules—the FCC has assured that what-

ever incidental effect they have on cable operators’ edi-

torial discretion will continue only as long as the rules are

18 See Section I supra and Section III infra.

20 See Century Communications, 835 F.2d at 299 n.4 (J.A.16a-17a).

needed to protect substantial governmental interests. Thus,

in crafting the rules, the FCC took great care to accom-

modate cable operators’ First Amendment interests.

The court’s decision, in contrast, reflects no similar ac-

commodation of the other important governmental inter-

ests at stake. Indeed, in striking down the FCC’s rules,

the court scarcely considered the substantial governmental

interests jeopardized by its decision.

III The Decision Below Will Jeopardize Important Gov-

ernmental Objectives, Including Preservation of a

Vital Public Television System.

There is a compelling need for this Court to review the

errors in the decision below because it frustrates fulfill-

ment of important, longstanding governmental policies and

injects the courts deeply into matters this Court has con-

sistently maintained should be left primarily to the ad-

ministrative agencies. As shown above, the Commission

found that must-carry rules were necessary to maximize

viewers’ access to diverse programming services, foster a

nationwide system of local television stations,*! and assure

an orderly transition from the cable environment that has

existed for the last 20 years to one in which cable oper-

ators and local broadcasters compete for viewers. Given

the control that cable operators presently exercise over

the program sources available to their subscribers*’ and

* Report and Order at 44 114-116, 160 (J.A. 93a-95a, 125a). These

governmental interests are reflected in the FCC’s statutory mandate

set forth in Sections 151, 303(g) and 307(b) of the Communications Act

of 1934, Pub. L. No. 98-214, 97 Stat. 1467 (1984), as amended, and

Section 601 of the Cable Communications Policy Act of 1984, Pub. L.

No. 98-549, 98 Stat. 2779, added in 1984 as Title VI of the Commu-

nications Act.

22 Although the court below criticized the FCC for its conclusions as

to how long it will take cable subscribers to install A/B switches and

antennas, it did not question the fact that cable systems currently

control the programming made available to their subscribers.

the importance to local television stations of access to that

audience, the decision below is likely to obstruct viewers’

access to television program services and jeopardize the

viability of local television stations licensed by the FCC

pursuant to Section 307(b) of the Communications Act.

The court’s decision places local public television stations

in particular jeopardy. In adopting the must-carry rules,

the Commission acknowledged the special governmental

interest in ensuring viewer access to the services of public

television stations*—a governmental interest that the court

completely ignored. Congress and the FCC have long

sought to foster a public television service that is not

subject to the same market forces as commercial broad-

casting and cable television. To this end, the FCC has

reserved television channels for noncommercial use,** and

Congress has appropriated funds—more than $1.5 billion

over the last twenty-five years—to support public broad-

casting.

In adopting the Public Broadcasting Act of 1967,*° Con-

gress declared it federal policy to make available to “all

citizens of the United States’’ public broadcasting services

that are distinguished by their ‘‘diversity and excellence,”’

and that are responsive to the interests of viewers in

communities across the nation.”* Public television has ful-

filled the role envisioned for it, providing diverse, inno-

2 See Revort and Order at 4 117 (J.A. 95a-96a); Reconsideration

Order at n.d] (J.A. 245a).

* See Sixth Report and Order on Television Assignments, 41 F.C.C.

148 (1952).

** Pub. L. No. 90-129, 81 Stat. 365 (1967).

** Pub. L. No. 90-129, § 201, 81 Stat. 365, 368 (1967), codified at 47

U.S.C. § 396(aX5) and (6) (1982). See also Public Telecommunications

Financing Act of 1978, Pub. L. No. 95-567, 92 Stat. 2405; H.R. Rep.

No. 1178, 95th Cong., 2d Sess. 2 (1978); S. Rep. No. 858, 95th Cong.,

2d Sess. 6-7 (1978).

vative, quality program services unparalleled by any other

program source.

The history of congressional and FCC commitment to

public television, backed by federal appropriations, dem-

onstrates that there is a substantial governmental interest

in assuring the continued vitality of the nation’s local pub-

lic television stations. That interest is threatened by the

court’s invalidation of the FCC’s must-carry rules. Public

television stations must be able to reach their audiences

if they are to continue to fulfill the mission envisioned by

Congress, and cable carriage is essential to achieve that

objective. Cable systems presently sit as gatekeepers to

nearly 50 percent of the television homes in this country.

Given the FCC’s findings concerning cable subscribers’

perceptions regarding access to television signals and their

lack of the equipment necessary to receive those signals

off-the-air, public television stations will not be able to

reach a large portion of their audiences absent cable car-

riage.

The FCC’s judgment that there is a substantial risk that

cable systems will drop local television stations absent

must-carry requirements has particular force with respect

to public television stations. Congress and the Commission

have fostered the development of public television to pro-

vide a noncommercial alternative to commercial television.

Freed from the commercial imperative to maximize viewer

ratings, public television’s mission is to educate, enlighten,

inform, and entertain; to provide programs that serve the

needs of those who, for the most part, remain unserved

by commercial television—children, the elderly, the hand-

icapped, and ethnic and racial minorities; and to make

available to every citizen the best our society has to offer

in drama, music, dance, and the arts. Cable operators, on

the other hand, are interested in offering programs with

mass appeal and the greatest revenue potential. Given

these differing motivations, there is a substantial risk that

significant numbers of public television stations will not

itis.

be carried by their local cable systems, absent rules re-

quiring such carriage.

Furthermore, cable carriage is generally more important

to public television stations than commercial stations be-

cause more than 60 percent of public television stations

operate in the UHF band, and virtually all public television

stations that will be constructed in the future will be

UHF.*’ As the Commission has recognized on numerous

occasions, UHF television stations suffer from severe tech-

nical handicaps that hamper their ability to reach viewers

in their service areas. Thus, in many cases, cable carriage

represents the only means for public television stations to

deliver a technically acceptable signal to their audiences.

Finally, in addition to the adverse impact that the de-

cision below will have on viewers’ access to diverse pro-

gram services and the viability of local television stations,

the unreasonable burden of proof that the court placed on

the Commission to justify cable carriage requirements ef-

fectively elevates the First Amendment rights of cable

operators over those of the public and broadcasters, and

limits dramatically the ability of the FCC to balance those

interests under the regulatory scheme of the Communi-

cations Act. This Court has consistently held that the FCC

has the power to regulate cable to achieve valid regulatory

goals of the Communications Act,”* and that “[bjalancing

the various First Amendment interests involved in the

broadcast media and determining what best serves the

public’s right to be informed is a task of great delicacy

7 Over 90% of the remaining vacant channels reserved for public

television are UHF. Television Channel Utilization, FCC Report, No-

vember 29, 1985, Table 1.

2 See, e.g., Report and Order in Docket No. 78-391, 90 F.C.C.2d

1121, 1124-25 (1982); Multiple Ownership Rules, 57 R.R.2d 966, 980-

81 (1985).

** See, e.g., United States v. Southwestern Cable Co., 392 U.S. 157

(1968).

and difficulty’’ that is to be undertaken in the context of

the Act. Columbia Broadcasting Systems v. Democratic Na-

tional Committee, 412 U.S. 94, 101-02 (1973). The decision

below imperils the FCC’s ability to perform that difficult

and critical balancing function.

In sum, the decision below jeopardizes achievement of

policies central to federal regulation of the communications

industry and necessitates this Court’s review. Moreover,

if not reversed, the decision will have an impact far beyond

the communications industry, for it establishes an unprec-

edented standard for appellate review of administrative

agencies’ decisions where First Amendment issues are at

stake. If left standing, the decision will hamper all agen-

cies’ efforts to fulfill their congressional mandates, deter

them from fashioning prophylactic remedies to serious

problems, and increasingly interpose the federal courts as

regulators in place of the expert agencies established by

Congress. See Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 4385 U.S. 519

(1978).

For this reason, as well as the impact that the decision

will have on viewers’ access to diverse programming in

general and on public television service in particular, the

Court should grant this petition for certiorari.

CONCLUSION

For these reasons, the Court should grant a writ of

certiorari to the United States Court of Appeals for the

District of Columbia Circuit in this case.

March 10, 1988

*Counsel of Record

Respectfully submitted,

PauL E. SYMCZAK

Susan DILLON*

CORPORATION FOR PUBLIC

BROADCASTING

1111 - 16th Street, N.W.

Washington, D.C. 20036

(202) 955-5288

BarYN S. Futa*

MARTHA MALKIN ZORNOW

NATIONAL ASSOCIATION OF

PuBLIC TELEVISION STATIONS

1818 N Street, N.W.

Washington, D.C. 20036

(202) 887-1700

PauLa A. JAMESON

Nancy H. HENpDRY*

PUBLIC BROADCASTING

SERVICE

1320 Braddock Place

Alexandria, Virginia 22314

(703) 739-5000

Counsel for Petitioners

STATUTORY APPENDIX

§76.5 Definitions.

(a) Cable system or cable television system. A facility

consisting of a set of closed transmission paths and as-

sociated signal generation, reception, and control equip-

ment that is designed to provide cable service which

includes video programming and which is provided to mul-

tiple subscribers within a community, but such term does

not include (1) a facility that services only to retransmit

the television signals of one or more television broadcast

stations; (2) a facility that serves only subscribers in one

or more multiple unit dwellings under common ownership,

control or management, unless such facility or facilities

uses any public right-of-way; (3) a facility of a common

carrier which is subject, in whole or in part, to the pro-

visions of Title II of the Communications Act of 1934, as

amended, except that such facility shall be considered a

cable system to the extent such facility is used in the

transmission of video programming directly to subscribers;

or (4) any facilities of any electric utility used solely for

operating its electric utility systems.

NOTE: The provisions of Subparts D and F of this Part

shall also apply to all facilities defined previously as cable

systems on or before April 28, 1985.

(b) Telewision station; television broadcast station. Any

television broadcast station operating on a channel regu-

larly assigned to its community by § 73.606 of this chapter,

and any television broadcast station licensed by a foreign

government: Provided, however, That a television broad-

cast station licensed by a foreign government shall not be

entitled to assert a claim to carriage or program exclu-

sivity, pursuant to Subpart D or F of this part, but may

otherwise be carried if consistent with the rules.

translator station as defined in §74.701 of this chapter.

(d) Qualified station, (1) Any television broadcast sta-

tion, as defined in §76.5(b), except where such station

A-2

would result in payment by the cable system of distant

signal copyright fees, that with respect to a particular

cable system:

(i) Is licensed to a community whose reference point, as

defined in §76.53, is within 50 miles of the principal head-

end of the cable system; and

(ii) If a commercial station, receives an average share

of total Viewing hours of at least two percent and a net

weekly circulation of at least five percent, as defined in

§76.5(k), in noncable households in the county served by

the cable system or has been operational less than one full

year. For purposes of this section, a station is considered

operational as of the date it initially commences operation

under program test authority. Changes in station opera-

tions, for example, upgrade of facilities, transfer or as-

signment of license, or recommencement after operations

have ceased, are not considered initial commencement of

operations under this paragraph. The viewing standards

of this paragraph shall not apply for one full year from

June 10, 1987, to otherwise qualified stations that com-

menced operation after July 19, 1985, but before June 10,

1987 (the effective date of these rules). Once a commercial

station has demonstrated that, on the basis of a full one-

year survey season, it meets the viewing standard, it will

be considered to have satisfied this standard for the re-

mainder of the period until June 10, 1992. Provided, how-

ever, that at any time after one year from the date a

commercial station demonstrates that it meets the viewing

standard, a cable system may nullify the station’s man-

datory signal carriage eligibility if it demonstrates, using

the methodology specified in Section 76.55 of this Part,

_ that the station no longer meets the viewing standard.

(2) Any noncommercial educational television station’s

translator with 5 watts or higher power serving the cable

community.

A-3

(3) A full service station or translator qualifies as a

noncommercial educational station for purposes of these

rules if it is licensed to a channel reserved for noncom-

mercial educational use pursuant to §73.606 of this chap-

ter. The Commission also will consider whether stations

operating on nonreserved channels qualify as noncommer-

cial educational stations on a case-by-case basis.

(e) Grade A and Grade B contours. The field intensity

contours defined in §73.683(a) of this chapter.

(f) Specified zone of a television broadcast station. The

area extending 35 air miles from the reference point in

the community to which that station is licensed or au-

thorized by the Commission. A list of reference points is

contained in §76.53. A television broadcast station that is

authorized but not operating has a specified zone that ter-

minates eighteen (18) months after the initial grant of its

construction permit.

(g) Major television market. The specified zone of a com-

mercial television station licensed to a community listed

in §76.51, or a combination of such specified zones where

more than one community is listed.

(h) Designated community in a major television market.

A community listed in §76.51.

(i) Smaller television market. The specified zone of a

commercial television station licensed to a community that

is not listed in §76.51.

(j) Substantially duplicates. Regularly duplicates the net-

work programming of one or more stations in a week

during the hours of 6 to 11 p.m., local time, for a total

of 14 or more hours.

(k) Significantly viewed. Viewed in other than cable tel-

evision households as follows: (1) For a full or partial net-

work station—a share of viewing hours of at least 3 percent

(total week hours), and a net weekly circulation of at least

A-4

25 percent; and (2) for an independent station—a share of

viewing hours of at least 2 percent (total week hours), and

a net weekly circulation of at least 5 percent. See §76.54.

NOTE: As used in this paragraph, ‘“‘share of viewing

hours” means the total hours that noncable television

households viewed the subject station during the week,

expressed as a percentage of the total hours these house-

holds viewed all stations during the period, and “net

weekly circulation’? means the number of noncable tele-

vision households that viewed the station for 5 minutes or

more during the entire week, expressed as a percentage

of the total noncable television households in the survey

area.

*_ * *

(ee) Cable system operator. Any person or group of per-

sons (1) who provides cable service over a cable system

and directly or through one or more affiliates owns a

significant interest in such cable system; or (2) who oth-

erwise controls or is responsible for, through any arrange-

ment, the management and operation of such a cable

system.

(ff) System community unit: Community unit. A cable

television system, or portion of a cable television system,

that operates or will operate within a separate and distinct

community or municipal entity (including unincorporated

communities within unincorporated areas and including sin-

gle, discrete unincorporated areas).

(gg) Subscribers. A member of the general public who

receives broadcast programming distributed by a cable tel-

evision system and does not further distribute it.

(hh) Cable service. The one-way transmission to sub-

scribers of video programming, or other programming ser-

vice; and, subscriber interaction, if any, which is required

for The selection of such video programming or other pro-

A-5

gramming service. For the purposes of this definition,

“video programming” is programming provided by, or gen-

erally considered comparable to programming provided by,

a television froadcast station; and, “other programming

service” is information that a cable operator makes avail-

able to all subscribers generally.

*_* ©

(jj) Usable activated channels. Channels engineered at

the headend of the cable system for the provision of ser-

vices generally available to residential subscribers of the

cable system, regardless of whether such services actually

are provided, including any channel designated for public,

educational, or governmental use but excluding channels

whose use for the distribution of broadcast signals would

conflict with technical and safety regulations. See Part 76,

Subpart K.

(kk) Principal headend. The location of the cable system

equipment used to process the signals of television broad-

cast stations for redistribution to subscribers. Where more

than one location meets the above definition, the cable

operator shall designate a single location as the principal

headend. i

(ll) Telersion survey season. The twelve-month period

beginning April 1 of one year and ending March 31 of the

following year.

(mm) Input selector switch. Any device that enables a

viewer to select between cable service and off-the-air tel-

evision signals. Such a device may be more sophisticated

than a mere two-sided switch, may utilize other cable in-

terface equipment, and may be built into consumer tele-

vision receivers.

§76.55 Qualified television station; method to be fol-

lowed for showings.

A commercial television station shall demonstrate that,

for the previous survey season, it meets the viewing stand-

A- 6

ard specified in §76.5(d\1\ii) on the basis of an independ-

ent professional survey of noncable homes conducted

according to the following provisions:

(a) If the station has been operational, as defined in

§76.5(d\1Xii), for at least one complete television survey

season, the survey shall cover four separate, consecutive

four-week periods, including one in each of the four quar-

ters of the survey season (i.e., April-June, July-September,

October-December, January-March), and be conducted pur-

suant to the methodology used to compile Appendix B of

the Memorandum Opinion and Order on Reconsideration

of Cable Television Report and Order, FCC 72-530, 36 FCC

2d 326 (1972).

(b) If the station has been operational, as defined in

§76.5(dX1\ii), for less than one complete television survey

season, the survey shall cover a single period of at least

two weeks. The survey sample shall be proportionally dis-

tributed among the noncable homes in the county served

by the cable system and shall be of sufficient size to assure

that the reported results are at least one standard error

above the required viewing standard.

§76.56 Mandatory carriage of television stations.

(a) A cable system shall carry the signals of qualified

television stations in accordance with the following pro-

visions:

(1) A cable system shall carry the signals of qualified

noncommercial educational television stations or transla-

tors of such stations, as follows:

(i) A cable system with fewer than 54 usable activated

channels shall carry the signal of one qualified noncom-

mercial educational station or translator;

(ii) A cable system with 54 or more usable activated

channels shall carry the signals of two qualified noncom-

mercial educational stations or translators.

A-7

(2) A cable system with 21 or more usable activated

channels shall carry the signals of qualified television sta-

tions as follows:

(b) Where the number of qualified television station sig-

nals exceeds the number that a cable system is required

to carry pursuant to paragraph (a) of this section, the cable

system may select which of the signals to carry, except

that carriage of qualified noncommercial educational sta-

tion signals pursuant to paragraph (aX1) of this section is

nondiscretionary.

cable system shall be permitted but shall not be required

to carry the signal of any qualified television station that:

(1) Substantially duplicates the signal of another qualli-

fied television station affiliated with a particular commer-

cial national network;

(2) Fails to deliver to the cable system principal headend

a picture of high quality providing enjoyable viewing and in

which interference is no greater than just perceptible.

Note: In general, a signal level of -45 dBm for UHF

signals and -49 dBm for VHF signals at the input terminals

of the signal processing equipment would be needed to

provide a picture of the required quality. Alternatively, a

baseband video signal could be supplied.

(3) Is duplicated by another station that is carried; in-

cluding where both a commercial parent station and its

satellite station(s) qualify, and, in the case of noncommer-

cial stations, where a parent station and ifs satellite and

or translator station(s) qualify.

(d) A cable system shall not accept direct (monetary)

payment or other indirect (nonmonetary) consideration in

exchange for carriage of the signal of any qualified tele-

vision station carried in fulfillment of mandatory signal

carriage obligations, except that any such station may bear

A-8

any costs associated with delivering a good quality signal,

as defined in paragraph (c) (2) of this section, to the cable

system.

(e) A cable system shall identify on request those sta-

tions carried in fulfillment of its must carry signal carriage

obligations.

§76.58 Disputes concerning carriage.

(a) Any qualified television station not being carried may

demand carriage from a cable system.

(b) As a prerequisite to a Commission decision concern-

ing a television station’s right to carriage, such demand

shall be made in writing and shall include showings that:

(1) The station is a ‘“‘qualified television station’ as de-

fined in §76.5(d);

(2) The cable system on which carriage is sought has

not satisfied its carriage obligations under §76.56;

(3) To the extent that the matter is in dispute, the sta-

tion delivers a good quality signal to the principal headend

of the cable system pursuant to §76.56(cX3).

suant to this section shall respond in writing to the tel-

evision station requesting carriage within fifteen (15) days

of receipt of such demand. If the system declines to carry

the station, the system’s response shall state the reasons

under the rules for such refusal.

A-9

Cable TV Cable TV cable TV

channels signals channels signals channels __ signals

21 - 29

30 - 33

‘ 62 - 65 16 98-101 25

8 66 - 69 17 102-105 26

34 - 37 9 70 - 73 18 106-109 27

38 - 41 10 74 - 77 19 110-1138 28

42 - 45 11 78 - 81 20 114-117 29

46 - 49 12 82 - 85 21 118-121 30

50 - 53 13 86 - 89 22 122-125 31

54 - 57 14 90 - 93 23 above 125 25% of

58 - 61 15 94 - 97 24 capacity

(d) If no carriage agreement is reached between the

parties, a ruling on the matter may be requested from the

Commission. Such request shall contain a copy of the car-

riage demand, the response thereto, and any other infor-

mation that may be considered relevant to a resolution of

the question.

Pleadings responsive to such request may be filed within

twenty (20) days. Initial requests and pleadings relating

thereto shall be served on all parties to the proceeding.

All factual allegations shall be supported by affidavit of a

person or persons with actual knowledge of the facts, and

exhibits shall be verified by the person who prepares them.

An original and two (2) copies of the request and subse-

quent pleading(s) shall be filed.

(e) No cable system that, in refusing a carriage request,

has complied in good faith with the mandatory signal car-

riage requirements of this chapter shall be subject to any

forfeiture or penalty if it is later determined that the

requesting station is entitled to carriage. If the Commis-

sion determines that the signal in question was or is en-

titled to carriage, the system shall commence such carriage

within a reasonable period, to be specified by the Com-

mission, and shall continue such carriage for at least twelve

months.

A-10

(f) A cable system may be assessed a forfeiture or other

penalty for failure to comply with a Commission order to

carry a qualified broadcast station. Such Commission or-

ders include action by the Chief of the Mass Media Bureau

under delegated authority.

§76.60 Carriage of other television signals.

(a) In addition to the qualified television station(s) car-

ried pursuant to §76.56, a cable system may carry the

signals of any other television stations, and also may carry

the signals of any other television stations, and also may

carry low power television stations, television translator

stations, foreign television stations, satellite distributed

program services, direct broadcast satellite stations and

programming from any other sources.

(b) A cable system shall be permitted, but shall not be

required, to carry any subscription television broadcast

program or any ancillary service transmission on the ver-

tical blanking interval or the aural baseband of any tele-

vision broadcast signal including, but not limited to,

multichannel television sound and teletext.

= &

§76.62 Manner of carriage.

(a) Where a qualified television broadcast signal is car-

ried by a cable system in fulfillment of the mandatory

signal obligations set forth in this part of the rules:

(1) the signal shall be carried in full, without deletion

or alteration of any portion, except as required by this

part,

(2) the signal shall be carried without material degra-

dation.

A-ll

(b) Where a broadcast television station carried in ful-

fillment of the mandatory signal carriage obligations is

carried on a tier of service, all signals carried in fulfillment

of those obligations must be carried on that tier; Provided,

however, that a signal carried in fulfillment of mandatory

signal carriage obligations may be placed on a tier of ser-

vice, reception of which requires separate terminal device,

if such devices are provided free of charge to all subscri-

bers.

of mandatory carriage obligations must be included on the

lowest-priced tier of service separately available to each

cable subscriber. The tier of service on which such stations

are carried also must be accessible on additional receiver

connections which the subscriber may purchase.

(d) Where a television broadcast signal otherwise is car-

ried by a cable system pursuant to the rules in this part,

programs broadcast shall be carried in full, without alter-

ation or deletion of any portion, except as required by this

part.

§76.64 Expiration of mandatory carriage provisions.

The provisions of §§76.56, 76.58, and 76.60, and 76.62(b)

shall remain in force until January 15, 1992, and shall

thereafter be of no further force or effect.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.