# Petition for Writ of Certiorari — Winchester TV Cable Co. v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1007

## Text

Strom ry
FILE YD

AUG 31 972

IN THE

MICHAEL ODA
Supreme Court of the United Stetes—
OctToser TERM, 1972
WIncHESTER TV Castz Oo., INo., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UniTep States oF AMERICA, Respondents
WHAG-TV Ino., Intervenor.

TELEVISION ANTENNA CABLE, INc., Petitioner,
Vv.
FrepERAL COMMUNICATIONS CoMMISSION AND
Untrep States oF America, Respondents,
WHAG-TYV, Inc., Intervenor.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

FREDERICK W. Forp
Lee G. Lovett
1819 H Street, N. W.
Washington, D. C.
Of Counsel Attorneys for Petitioners
Prrmman Lovett Forp
HENNESSEY AND WHITE
1819 H Street, N. W.
Washington, D. C. 20006

Pumss or Brnow S. Anas Paurrina, Inc., Wasumrerom, D.C.

=>.

Opinions ET ciliate eee ne tinned enedadeenwe

Jurisdiction ......+0.ceseseesceccececencscccencecs 2
Questions MEE cc ccccccccccccccvceccccccesecs 2
Statutes and regulations involved ...........-..+4+. 2
Gishememt .......cccccceccccccccccccccccsccccccces 3
Reasons for granting the writ ............se.e--eeee 12
ED Kccanccdonsetedakneceeeenecseesccesaee 24
Appendix A .......ceeeceeeeeecesteecceeeseeecence la
Appendix B .........ccececscececccceeecnceceseees lla
Pppendix C .......ccccccccccccscccccccccccctoccons 14a
Appendix D .........ccececcccsccccecscccerseceees 20a
EEE TD occ cicscvescccvccercescstsesesoveseove 21a
Reptelln Fa... cccccccccnscccccccsesesccccoesccas 28a
CITATIONS
CasEs:

Abbott Laboratories v. Gardner, 387 U.S. 136, 149
eo oa Pree Pee
Bolling v. Sharpe, 347 U.S. 497 (1954) .............. 23
Bolton v. Harris, 395 F.2d 642 (1968) ............... 24

Carter Mountain Transmission Corp. v. FCC, 321 F.2d
359, cert. denied, 375 U.S. 951 (1963) .......... 10, 12
Citizens Communications Center v. FCC, 447 F.2d 1201
DT ici ti estbebbaakcbakccwnsek (eee en 23
Columbia Broadcasting System v. United States, 316
idea iat an a ined ie

Conley Electronics Corp. v. FCC, 394 F.2d 620 (10th
Cir. 1968), cert. denied (1968) ............02000- 12

rere 7

ii Index Continued
Page
Fortnightly Corp. v. United Artists Television, Ine.,
8 8 er erty: 5
Great Falls Community TV Cable Co. v. FCC, 416 F.24
we we be rt ll
Harrell v. Tobriner, 279 F.Supp. 22 (1967) ..........
Hearst Radio, Inc. v. FCC, 167 F.2d 225 (1948) ...... 8

See

Schneider v. Rust, 377 U.S. 163 (1964) ..............
Titusville Cable TV, Inc. v. United States, 404 F.2q
8 rrr ne 12
United States v. Midwest Video Corporation, — US.
met Oe eae V1
United States v. Southwestern Cable Co., 392 U.S. 157
CREE Seen en bensbekdnsnnderenennsdharenes 7, 16,17
Washington v. United States, 401 F.2d 915 (1968) .... 4

DEW SEES ccadauhubeawaveuwanenc cuca 9, 10, 11
CoNSTITUTION OF THE Unrrep States or AMERICA:
RRA Riera nl Sr Let ie 6, 21, 23, 4
Fourteenth Amendment ................0..4. 6, 21, 23, 4
STaTuTeEs:

Administrative Procedure Act, 5 USC 551(4) ........ 22
Judicial Review Act, 28 USC 1254(1) ............... 2

Communications Act of 1934, 48 Stat. 1064, as amended,
47 U.S.C. § 151, et seq.:

SN er 6, 9, 10, 11, 13, 16, 18, 20
PE UEP Wi evineuAchesesaseevaesseonucaceel 13
DD cidvchuephaanewhauseesaguanacbal 13, 18
| ee 11, 14, 18, 19, 0
ET ca ccscviadpeneeaubennessadacia 14
DE <cccucouraatceuankueseuanninel 14
Section 307(b) ............ 6, 9, 10, 11, 16, 18, 19, 20

DEE chcvacuccucs oedadenbenecese 14

Index Continued iii

Page
Radio Act of 1927, Public Law 632, 69th Cong. ....... 19
FCC Rues aND REGULATIONS:
47 CFR § 74.1103 2.2.2. eee eee eee ence ee eeeees 16, 20, 21
EE A WE ics co csesicicevenyeesonctnns 20
iA RES IRIE 5
47 CFR 53.658 «0... cece cece cece eee e ee eeeeeeeeees 20
MisCELLANEOUS :

First Report and Order (to Adopt Rules and Regula-
tions for Microwave Stations to Relay Television
Signals to CATV Systems) Docket Nos. 14895,
15233, 38 FCC 683 (1965) ........+2 cree eee eee 11

Second Report and Order (to Adopt Rules and Regula-
tions Relating to Distribution of Television Broad-
cast Signals by CATV Systems) Docket Nos. 14895,
15233, 15971, 2 FCC 2d 725 (1966) ............-- 18

Report and Order (With Respect to Television Net-
work Programs Not Made Available to Certain
Television Stations) Docket No. 16041, 26 FCC 2d
kt . Berrereerererrr ee 2, 4, 5, 7, 8, 22, 28a

Memorandum Opinion and Order in re Winchester TV
Cable Co., Inc., 29 FCC 2d 432 (1971) ........-. lla

Memorandum Opinion and Order in re Television An-
tenna Cable, Inc., Front Royal, Va., 30 FCC 2d
GIO (1971) 2... .cceccccccccssccccccccccecccces 14a

IN THE

Supreme Court of the United States
Octoser TERM, 1972

No.

WINCHESTER TV CaBLeE Co., INc., Petitioner,
v.

FEepERAL COMMUNICATIONS COMMISSION AND
Unitep StTaTEs OF AMERICA, Respondents
WHAG-TV Inc., Intervenor.

TELEVISION ANTENNA CABLE, INC., Petitioner,
v.

FEDERAL COMMUNICATIONS COMMISSION AND
UniteD STATES OF AMERICA, Respondents,
WHAG-TYV, Inc., Intervenor.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Petitioners, Winchester T'V Cable Co., Inc. (herein-
after ‘‘Winchester’’) and Television Antenna Cable,
Inc. (hereinafter ‘‘TELACO’’) request that a writ
of certiorari issue to review the judgment of the United
— States Court of Appeals for the Fourth Circuit entered
in this case on June 2, 1972.
|

2

OPINION BELOW

The opinion of the Court of Appeals is reported at
—— F.2d —— and is annexed hereto as Appendix 4
infra, p. la. The orders of the Federal Communic.
tions Commission are reported at 29 FCC 2d 432 ang
30 FCC 2d 610 (Apps. B and C, infra, pp. 11a, 14a),

JURISDICTION

The judgment of the Court of Appeals was entered on
June 2, 1972 (Appendix D, infra, p. 20a). The juris.
diction of the Court is invoked under 28 USC 1254(1),

QUESTIONS PRESENTED

Whether the Federal Communications Commission
has the power to deprive the American people of the
right to receive television signals from CATV systems
that Federal law permits them to receive, in the same
area, without CATV? And, whether the Federal Com-
munications Commission’s rule, that attempts to so
regulate television reception and to discriminate
against CAT'V subscribers, is invalid ?

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The 5th and 14th amendments to the Constitution are
set forth in Appendix E, infra, p. 21a, Sections 1, 301,
303(g) and 307(b) of the Communications Act of 1934,
as amended are set forth in the body of this Petition,
pp. 18, and 19, respectively.

REGULATIONS INVOLVED

The rule under review (47 CFR § 74.1103) is also
set forth in Appendix E, p. 21a, together with the revi-
sion of that rule adopted by the Commission on Febru-
ary 2, 1972 and effective March 31, 1972, as amended

—_

3

i 26, 1972, effective July 14, 1972 (CFR § 76.91,

sini STATEMENT

These cases arose out of two orders of the Federal
Communications Commission denying Petitions for a
Waiver of its nonduplication or program exclusivity
rule. In the formulation of these orders, the validity
of the rule was challenged, and, alternatively, its
application in this case has been arbitrary and capri-
cious. The rule and the denials of its waiver, by the
Commission, were sustaine¢ by the court below, on
petition for review under the provisions of 47 USC
§402(a). The rule and the denials of its waiver, by
the Commission, were sustained by the court below, on
petition for review under the provisions of 47 USC
§402(a).

A. The Facts

Winchester Cable has operated a CATV system in
Winchester, Virginia, since 1966, and TELACO has
operated one in Front Royal, Virginia, since 1964.
Both systems have always received and supplied WRC-
TV, Channel 4, the Washington, D.C. National Broad-
casting Company (hereinafter ‘‘NBC’’) affiliate, to
their subscribers.

The residents of Winchester and Front Royal can
and do receive WRC-TV and other VHF stations from
Washington, D.C. and have continuously viewed these
programs on home antennas for approximately 20
years. The Court below and the Commission have con-
ceded this point. In January 1970, a new UHF station,

*A bonus affiliate broadcasts a full network schedule of pro-
gramming but receives no compensation from the network. In
June 1965, the Commission issued a Notice of Proposed Rule Mak-
ing and a Notice of Inquiry in Docket No. 16041. The second part
of that proceeding concerned the provision of network programs

“~<a

4

WHAG-TYV, Channel 25, Hagerstown, Maryland, began
operation as an NBC bonus affiliate." Both CATV gy,
tems carry WHAG-TYV, on sequized by the Come
sion’s rules.

WHAG-TV places a Grade A signal contour ove
Winchester and a Grade B signal contour over Front
Royal, Hagerstown, Winchester and Front Royal ar
presently outside, by short distances, the Grade B cop.
tour of WRC-TV—although the Commission hy;
granted WRO-TV’s application for a permit to in.
crease the height of its antenna, enabling it to place
a Grade B contour over all three of the above communi-
ties. When this is done TELACO will no longer be re.
quired to protect WHAG-TV’s signal because WRC’s
signal in Front Royal will be of equal priority with
WHAG-TV. WRC-TV will have a lower priority in
Winchester and, therefore, WRC-TV’s signal will still
have to be “‘blacked-out on the Winchester CATV gys-
tem when WRC-TV carries the same program as
WHAG-TV.

WHAG-TV triggered the program exclusivity pro-
visions of the nonduplication rule by requesting that

to “‘small market’’ or ‘‘overshadowed’’ stations, those at some dis
tance from, but not entirely out of reception range of large city
stations. This proposal was opposed by the networks. Comments
and reply comments were filed and, on December 23, 1970, the
Commission released its Report and Order in this proceeding (%
FCC 2d 772, 789, Appendix F, p. 28a). Rules were not adopted
by this Report but the Commission’s policy was made very clear
that network affiliation in these fringe markets was unsatisfactory
and must be improved. To this end, the networks were require
to file reports and the proceeding was kept open for “‘whatever
subsequent consideration and action may be indicated.”’ Thus, s
coersive policy was established far more effective than a rule. The
beginning of operations and affiliations of WHAG-TV with NBC
occurred during the pendency of this rule-making proceeding.

5

the two systems provide it with same day (simultane-
ous, under the revised rule) protection from duplica-
tion by certain other NBC affiliates, including WRC-
tv.’

The Commission is fully informed that network pro-
grams are simultaneously duplicated to large popula-
tions and areas by television stations licensed by it, as
shown by its Report and Order in Docket No. 16041
(Appendix F, p. 28a.)

In fact, the policy of the Commission is not only to
encourage, but also to coerce, the networks to permit
such duplication of programs by small market tele-
vision stations to large areas and populations already
covered by larger market television station ® affiliates.

The area normally served by WHAG-TV within the
Grade B contour (reference 100%) is supplied NBO
programs by various television stations duplicating
those of WHAG-TV (Joint Appendix, p. 25 et seq.).
The number of duplicating signals and the percentage

*Both the Commission and the court below ignored or didn’t
reach the basic discriminatory issue of why duplication of pro-
grams by television stations to large areas and populations pro-
motes the public interest when receiving on a home-owned antenna
wd duplication by those same stations to miniscule portions of
much areas and populations is contrary to the public interest when
receiving on a more efficient CATV rented-antenna.

a

of the WHAG-TV Grade B contour area covered ap
as follows:

1 service WHAG-TV 2.7%
2 overlapping services 52.8%
3 overlapping services 29.8%
4 overlapping services 14.7%
2 or more services 97.3%
3 or more services 44.5%

Thus, in this case, the Commission has spawned a
abundance of off-air duplication of network programs
while restricting it over CATV.

B. The Decision Below

The fundamental approach to this case by the Court
below, as expressed in the first paragraph of its Opin
ion, was to solve the problem of ‘‘accomodating in the
public interest the competing claims of a local televis
sion station and community television systems.” The
court met this challenge by disposing of the at
tack on the rule by assuming its validity and find
ing that its application in this case was not arbi-
trary and capricious.

The validity of the rule was attacked on the ground
that (1) it violates Sections 1 and 307(b) of the Com
munications Act of 1934, as amended, because it doe
not accord equal treatment to wire and radio and does
not provide a fair and efficient allocation of reception
service; and (2) it violates the 5th and 14th amend
ments to the Constitution because it prohibits CATV-
users the liberty of receiving the same signals thi
television stations provide to non-CATV user;
it directly contradicts the policies of favoring simu-
taneous duplication of programs by television stations

encouraged by the Commission to do over large areas.

In disposing of the arguments relative to the uncons-
titutional discrimination by the Commission, intro-

duced by Docket No. 16041, the court regarded the
ads ened aah Uisdies op am ediediben &
networks to make their services available to small
market stations. The court quoted with approval the

“Even if such [mere duplication of services to an
area already receiving such network ser-
vice] were the objective of Docket No. 16041, how-
ever, it would be entirely consistent with the intent
of oo rule.” (Appendix C,
para.

In short, the court approved the validity of a Commis-
sion policy (Docket No. 16041), of which the objective
ras to coerce duplication of programs off-the-air and
simultaneously prohibit the reception by the public via
CATV the identical duplicated programs in the same
area.

The court further assumed that this Court in United
States v. Southwestern Cable Co., 392 U.S. 157 (1968)
dirmed unlimited power in the Commission to regu-
late CATV, whereas this Court limited Commission
action to that “‘not inconsistent with law’’. The court

then concluded, by assuming the answer to the funds.
mental question on the power of the Commission to re.
quire the “‘blackout’’ of off-the-air television signals
on CATY, as follows:

‘*However, we need not decide whether this dif.
ference [transmitters of signals vs. reception of
signals] provides a rational basis for the i
sion’s re to apply the same non-duplication

licies to both CA’ and to broadcasters. The

ommission has not yet adopted any rule i
ing a network to duplicate its programs in Win
chester or Front Royal thro multiple station
affiliations. Nor do the CATV —— allege that
Docket No. 16041, absent a rule, coerced * dup-
lication areas they serve. At best, as the Com-
mission observed, the constitutional attack mount.
ed by Winchester Cable and TELACO is prema.
ture.’’ (But the Commission has licensed stations
to duplicate network programs to the same areas
and protected such duplication by threats. At the
same time, the Commission has prohibited such
duplication via CATV rules under which one of
the duplicating signals must be blacked out. The —
facts contradict the court.)

* The court apparently did not consider charges that WHAG.-TV
obtained its bonus affiliation with NBC as a result of the Com-
mission ’s then pending inquiry in Docket 16041 (p. 13, Petitioners
Reply Brief in the court below), nor was the court persuaded of
the power of the Commission to ‘‘coerce’’ by using its power to
adopt policy which is as effective coercion as law. Note the Com-
mission's coercive language in 26 FCC 2d 796, para. 60:

**60. In our view, for reasons stated herein, the public interest
requires an improvement in the networks’ performance in
these respects, and we expect it to be improved in the near
future. While we are not now adopting any rules in thee
areas, we will require the networks to report in the near fe
ture, by June 30, 1971, a period some seven months hence, on
their policies and practices in the respects mentioned above.
This proceeding is being kept open for the receipt of this
information and whatever subsequent consideration and action
may be indicated.’’

The court disposes of the attack on the nonduplica-
tion rule as violative of §§1 and 307(b) of the Com-
munications Act of 1934, as amended, by stating that
they are essentially the same as those previously con-
sidered by the court in Wheeling Antenna Co. v. United
States, 391 F.2d 179 (4th Cir. 1968), and it would
adhere to the views therein expressed.

It is significant that Judge Butzner, who wrote the
opinion in this case, was a member of the panel which
decided the Wheeling case. In that case Judge Bryan
noted, in footnote 4,

“that the question of whether the FOC has au-
thority to regulate CATV is under review by the
Supreme Court.... Accordingly, WACO does not
argue that point here, but instead reserves it
pending the decision of the issue by the Supreme
Co 9

At another point, the court noted that:

“The assault was upon the priority of WTRF-
TV. On that ground WACO [CATV] contested
the appositeness, not the validity of the rule.”

The court negatively and unwarrantedly concluded
that:
“Neither the rules nor their administration are

shown to be unjust, including the particular rule
now in suit.”’

Thus, even though the validity of the rule was not be-
fore the court in the Wheeling case, its validity was as-
sumed, based on a statement by the court unsupported
by facts or law, in that or any other record that:

“ .. to insure its performance a station is entitled
to some protection against dilution of its coverage

10

through CATV’s introduction of the same
grams from more removed stations.”’ * (Emphasis

supplied.)

Thus, these unjustified assumptions are perpetuated in
the case at bar as precedent. This is a most unorthodox
method of establishing basic principles of law (by de.
fault) upon which an entire industry is regulated and
the public inconvenienced.

The court brushed aside Petitioner’s arguments in
this case that the nonduplicating rule violated §§1 and
307(b) of the Communications Act of 1934, as amend-
ed, by accepting the assumed validity of the rule in the
Wheeling case and accepted the conclusion of that case
based on that assumption. That conclusion was as fol-
lows:

‘...we nevertheless accepted the nonduplication

rule as a fair adjustment and accomodation of con-
flicting claims to first place in the public interest.”
5The finding by the court in Wheeling that WIIC, the lower
priority station, placed a Grade A signal in Wheeling, upon whieh
the decision rested, contradicts the basic determination by the court
that CATV introduced the same programs from a more distant
station. Those duplicating programs were already present in
Wheeling. Grade A is almost as strong a signal as the principal
community contour. An important basis of Winchester’s case is
that, if the signal is available to a citizen off-the-air, the Commis
sion has no power, in law, to proscribe the type of antenna he uses.
Otherwise, the Commission could, without any statutory sanction,
prohibit the use, by citizens, of a VHF antenna in certain areas to
further its policy of developing UHF. No provision of the Com-
munications Act can be stretched that far. Finally, CATV systems
do not “‘introduce”’ signals that are available off-the-air without
CATV; only distant signals microwaved to an area can be fairly
characterized as “‘introduced’’ by CATV. In this imstance, we
make no contention that the Commission does not have the means
and authority to control that ‘‘introduction’’ by microwave. Carter
Mountain Transmission Co. v. FCC, 321 F.2d 350, cert. denied,
375 U.S. 951 (1963).

|

1l

The court, in the case at bar, finally concluded that:

“_.. the Commission’s efforts to assure that the
role of CATV and television remained comple-
mentary were in keeping with the Communications
Act of 1934.”

In what way it is in accord with the Act, the court did
not disclose. Not one section of the Act was cited *—
only a series of cases in footnote 10. These cases do not
support the conclusion that the Communications Act
supports this rule.’

* Certainly, neither Section 1 of the Communications Act of 1934,
as amended, which places wire and radio on an equal basis, nor Sec-
tion 307(b), which equates reception with transmission, support
the rule requiring the reception antenna service to blackout a signal
readily receivable in the community concerned. The Act (Sec.
303(g)) encourages the greater use of radio—not restrictions on its
use by citizens when it is provided and intended for their use.

T Not one of the cases cited explains how television and CATV are
kept complementary by prohibiting the reception, by the public, of
signals licensed by the Commission and intended to be received
off-the-air. It appears that the objective is to give an advantage to
the network affiliated station with the strongest signal rather than
to permit the public to receive all signals licensed to serve it with
the liberty to choose the station that, overall, presents the best pro-
grams. In short, success determined by technology—not overall
program content. If there is a problem, it is one of licensing trans-
mission—not reception—of signals intended to be received. In
Wheeling Antenna Company v. United States, 391 F.2d 179 (4th
Cir. 1968) the court relied on Commission claims that Sections 1
and 307(b) (38 FCC 683, 699) of the Act cannot be met by reliance
on a service delivering signals that cannot be made available to
many people. In Great Falls Community TV Cable Co. v. FCC,
416 F.2d 238 (9th Cir. 1969), the nonduplication rule was held not
to violate the First Amendment. The Court, in effect, also approved
the Commission’s ‘‘fear’’ that, if the publie were able to clearly
view signals not intended for delivery to them, it would render
off-the-air stations uneconomic (38 FCC 683, 700). Both of these
cases rely on the Commission’s 1965 Report and Order adopting
rules for microwave served CATV (38 FCC 683) which does not

12
REASONS FOR GRANTING THE WRIT

The Commission has no authority to restrict re-
ception of television signals that it has licensed to serve
the area in question or to discriminate against CATV
viewers and, therefore, there is no responsibility to
which such authority is reasonably ancillary.

The Decision below clearly involves an important
question of Federal law which has not been, but should
be, settled by this Court. The Decision below involves
the validity of a fundamental power asserted by the
Commission to adopt an onerous regulation of cable
television which is neither desirable *, necessary or
effective to protect the station predicted to place the

apply to off-the-air service. In Titusville Cable TV, Inc. v. United
States, 404 F.2d 1187 (3rd Cir. 1968), the Court relied on earlier
hearings of the Commission to the effect that CATV could discour-
age local television. It is clear from the context that the court
again relied on the same microwave distant signal policy to govern
non-microwave off-the-air CATV service. The court, without ra-
tionale, merely asserted that the Commission had properly adopted
the nonduplication rule. In Conley Electronics Corp. v. FCC, 394
F.2d 620 (10th Cir. 1968), the local stations were within 60 miles
and signals of the distant stations were brought in by microwave,
Again, in Carter Mountain Transmission Corporation v. FCC, 321
F.2d 359 (D.C. Cir. 1963) cert. denied 375 U.S. 951 (1963), the dis-
tant stations were not licensed to serve nor did they serve the area in
question off-the-air. Thus, the cases cited rely either on a principle
involving importation of signals into an area by microwave to gov-
ern receiption of signals off-the-air or on their facts involve the
use of microwave to import distant signals into an area where the
signals could not be received off-the-air.

® The theory of unfair competition relied on by the Commission
to support this rule has been repudiated by the Department of
Justice (Petitioners’ Brief below, n. 35). Fractionalization of
audience by distant station duplication of local network signals,
has existed in AM radio almost from the beginning without appar-
ent economic harm to the local station.

13

higher power in a given community. The power as-
serted is the power to prohibit a cable antenna televi-
sion system from receiving directly, off-the-air on its
master antenna and distributing to the public the sig-
nals of television stations which the public may easily
receive directly off-the-air on antennas individually
owned, simply because it duplicates a network pro-
gram carried by a higher priority station.’ The reason
assigned for asserting the authority to impose program
exclusivity or nonduplication of programs must be
grounded in the ancillary authority of the Commission
recognized under Section 152(a) of the Communica-
tions Act of 1934, as amended.

There is no inherent authority in the Commission, in-
dependent of Congress, to regulate television or cable
television. It is necessary, therefore, to look to the Act,
the source of the Commission’s authority, for guide-
lines on its responsibility for television broadcasting
and the way in which this regulation, requiring the
blackout of programs otherwise receivable, is or is not
ancillary to those responsibilities—not merely in terms
of protection of broadcasting, which is highly ques-
tionable, but also to the advancement of the objectives
of the Communications Act of 1934, as amended.

The purpose of the Act is to make available an effici-
ent wire and radio communications service (Section 1)
and to maintain control over all channels of radio
transmission (Section 301). The Commission, among

® Petitioners filed numerous sworn statements with the Commis-
sion demonstrating that, while WHAG-TV had a stronger (‘‘higher
priority’’) signal than WRC-TV, WHAG-TV’s equipment and
staffing are such that the quality or fidelity of its transmissions are
constantly inferior to those of WRC. Hence, when the public re-
ceives only WHAG-TV, it receives an inferior signal. The ac-
curacy of those claims and sworn evidence was never rebutted.

14

other things, has authority to generally encourage the
larger and more effective use of radio in the public in.
terest (Section 303(g)) ; to make such rules and regy.
lations to carry out the Act (Section 303(1r)); and to
require television receivers to be capable of receiving
all frequencies allotted to television broadcasting
(Section 303(s)). The Act sets forth a comprehensive
regulatory scheme, including provisions for the alloca.
tion of frequencies, construction and licensing of
broadcast stations, renewals, modifications, revocations
or denials and assignment and transfers of station
licenses.

No provisions of the Act, directly or indirectly, give
the Commission the power to control reception of radio
signals, except Section 605. This section specifically
provides that it,

‘shall not apply to the receiving, divulging, pub-
lishing, or utilizing the contents of any radio con-
munications which is broadcast or transmitted...
for the use of the general public... .’’ (Emphasis
supplied. )

Thus, the Communications Act of 1934 does not provide ©
any authority to blackout signals of one station he-
cause it overlaps the signal of another station that car-
ries a duplicating program. Television, by its very na-
ture, is licensed to serve the public as far as its signal
ean be received off-the-air.

The Commission may control the frequency, hours of
operation and power of a television broadcast station,
but once having licensed a station, it has no power to
prohibit the public from tuning in that station on its
receivers or to regulate television antennas or receivers,
except as provided in Section 303(s) of the Act (All-
Channel Receiver Law).

15

It would appear to be beyond dispute that the Com-
mission has no power to prohibit the public from
watching a television program on a signal that a sta-
tion is licensed to broadcast and which can be received
off-the-air. It must, therefore, follow that there is no
regulatory function—indeed, it would be a contradic-
tion to prevent a broadcast signal from being received
by the public for whom it was intended. Likewise, it
would be a contradiction to maintain that an off-the-air
signal can be denied to members of the public for whom
it was intended because they use a rented antenna in-
stead of home antenna. Such a contradiction in rules
obstructs, instead of furthers, the objectives of the Act,
ie., the larger and more effective use of radio and the
equitable distribution of reception services.

Thus, if this Decision stands, it will confirm power in
the Commission to blackout television signals which
duplicate network programs—a power which should
not be based on the broad assumptions made by the
court below. If such powers do exist, the rational basis
for them, founded in both the Constitution and the sta-
tute, should be clearly marked out.

The administrative process requires great flexibility
to solve the problems delegated to it by the Congress.
The courts have shown an appreciation for this difficult
task. However, the problem of adopting an affirmative
national policy and regulatory scheme for cable televi-
sion, in the public interest, is far too important to be
left to the uncertain vacillation of the regulatory
agency. It should rest squarely on the shoulders of
Congress—where it belongs.

Congress first declined to act on cable television in
1959. Although many sessions of Congress have inter-
vened, there is still little prospect of CATV regulatory

16

legislation without a real or imaginary crisis. Duri
this 13-year period, no fewer than fourteen *° bills have
been introduced in Congress to regulate CATV—to no
avail. In broadcasting, the regulatory scheme is fully
set forth in the law—Congress erected sign-posts
throughout the Communications Act of 1934, as
amended, as to the application of the statutory stand-
ard of ‘‘public interest, convenience and necessity,”
In the explosive growth of cable television, it may in-
deed be tragic if Commission improvised patchwork
policies, under a broad authority, are permitted to gov-
ern or restrict this important industry. Moreover, if
some way is not found to eucourage Congress to ‘‘take
hold of the future” and establish affirmative policy
for the regulation of this dynamic cable communica-
tions service, with its almost unlimited potential, it
could be a great disservice to the public.

The Decision Below Sustains a Nonduplication Rule Which
Violates Sections 1, 301, 30%g) and 307(b) of the Communi-
cations Act of 1934, As Amended.

Section 74.1103 (e) of the Commission’s rules violates
Sections 1 and 307(b) of the Communications Act of
1934, as amended. In the Southwestern case,” the
Court was not concerned with the validity of the CATV

10 §, 2303, S. 2653, 80th Cong., 1st Sess.

S. 1044, 87th Cong., 1st Sess.

H.R, 14454, 88th Cong., 2d Sess.

H.R, 7715, 89th Cong., Ist Sess.

H.R, 12914, H.R. 13286, H.R. 14201, 89th Cong., 2d Sess.
H.R, 10268, H.R. 10510, 91st Cong., 1st Sess.

8. 3635, 91st Cong., 2d Sess.

S. 792, S. 2327, 92nd Cong., Ist Sess.

H.R. 15757, 91st Cong., 2d Sess.

11 United States v. Southwestern Cable, 292 U.S. 157 (1968).

ee

17

rules,” but, rather, with the Commission’s authority
ynder the Communications Act to regulate CATV
systems. In the Midwest case,” the Court held that the
eablecasting or origination rule ‘‘.. . preserves and en-
hances the integrity of broadcast signals and, therefore,
js ‘reasonably ancillary to the effective performance of
the Commission’s responsibilities for the regulation of
television broadcasting.’ ”’

The Court determined in Southwestern that the Com-
mission has the authority, under the public-interest
standard, to regulate CATV * in a manner not incon-
sistent with law. It is, therefore, necessary to deter-
mine whether the Act contains guidelines for the exer-
cise of this authority—as it does for the other services

that the Commission regulates.
The Commission has determined that CATV is

neither a common carrier, which would subject it to
Title II, nor broadcasting, which would subject it to

12 Supra, n. 11, the Court stated:
‘‘We must first emphasize that questions as to the validity
of the specific rules promulgated by the Commission are not
now before the Court.’’

United States v. Midwest Video Corporation, — US.
(June 7, 1972)

M4 Supra, n. 11, the Court said:

‘There is no need here to determine in detail the limits of the
Commission’s authority to regulate CATV. It is enough to
emphasize that the authority which we recognize today under
Section 152(a) is restricted to that reasonably ancillary to the
effective performance of the Commission’s various responsibili-
ties for the regulation of television broadcasting. The Com-
mission may, for these purposes, issue ‘such rules and regula-
tions and prescribe such restrictions and conditions, not incon-
sistent with law’, as ‘public convenience, interest or necessity
require’, 47 USC § 303(r).’’

—

18

Title IIL.™ The fact is that there are no provisions of
the Act specifically designed for the affirmative regu.
lation of CATV. The only apparent benchmark is the
following portions of Sections 1, 301, 303(g) and 307
(b) of the Act.

Section 1 of the Communications Act of 1934, as
amended, states the purpose of the Act, as follows:
“For the purpose of regulating interstate and
foreign commerce in communications by wire and
radio so as to make available, so far as possible, to
all the people of the United States a rapid, effici-
ent, Nation-wide and world-wide wire and radio
communication service with adequate facilities
...’ (Emphasis supplied.)
Section 301 of the Act provides, in part, as follows:
“Tt is the purpose of this Act, among other
things, to maintain the control of the United States

over all the channels of interstate and —* | ra-
dio transmission; ...’’ (Emphasis supplied.)

A review of the Act discloses no provision that broad-
casting shall be ‘‘the chosen service”’, that wire services
are subordinate or supplementary to it, or that wire is
only an auxiliary of radio. Moreover, there is no section
of the Act that gives the Commission authority over
the reception of broadcast signals. To the contrary,
wire and radio are placed on an equal footing to achieve
this fundamental purpose of Congress in building a
rapid, efficient, Nation-wide and world-wide radio com-
munications service, and the regulatory scheme relates
entirely to transmission (except for all-channel re-
ceivers) and not to reception.

18 Second Report and Order in Dockets 14895, et seq., 2 FCC
2d 725 (1966), paras. 15-17 and authorities cited.

Sectior 303(g) of the Act provides that the Commis-
sion shall,
“Study new uses for radio, provide for experi-
muskeh Gen of tiemmaneien, ook oomaadll encour-

the larger and more effective use of radio in
the publie interest ;””

Section 307(b) provides as follows:

““(b) In considering applications for lice
and modifications and renewals thereof, when
insofar as there is demand for the same, the Com-
Sogenie, teaae a aun ann ak aoe
uencies, of operation, of power
a the several States and communities as to
provide a fair, efficient, and equitable distribution
of radio service to each of the same.”’

Nowhere in the legislative history is there any indica-
tion that the words “‘radio service’’ did not continue to
include both transmission and reception as specifically
set forth in Section 9 of the Radio Act of 1927." One is
of little value without the other. In fact, the Commis-
sion has so recognized it from time to time.”

The fact that cable television or CATV materially
aids the public in receiving broadcast signals and is in
furtherance of the public’s right to receive signals,
which the Commission’s allocations policies intend them

* Radio Act of 1927, Publie Law No. 632, 69th Cong., Sec. 9.

"For example, in Pinellas Broadcasting Company v. Federal
Communications Commission, 13 RR 2058, 2061; 230 F.2d 204
(D.C. Cir. 1956), the court stated, in requiring a fair and equitable
distribution of service, that Section 307(b) encompasses not only
the reception of an adequate signal but also community needs for
programs of local interest and importance and for organs of local
self-expression. The rules and regulations of the Commission and
its decisions demonstrate that it so regards the section.

to receive, is the most flagrant form of discriminatieg
and frustrates Section 307(b) of the Act. Section
74.1103 conflicts with Section 307(b); it arbitrarily
for its use via CATV. It arbitrarily controls reception.

For the foregoing reasons, Section 74.1103(e) is un
lawful—at least insofar as it prohibits the carriage of
signals that are readily available off-the-air. It is per-
haps the most unwarranted and onerous of the re
straints on the growth of CATV devised by the Com-
mission and is in violation of Sections 1, 301, 303(g)
and 307(b). As an unlawful discrimination against
wire and in restraint of a fair and efficient allocation
of a valid and proper reception service, it fully war-
rants review by the Court.

The Nonduplication Rule, in Contrast to the Policy of th:
Report and Order in Docket No. 16041, Is So Discrimins
tory as To Constitute a Violation of the Sth and Ma
Amendments to the Constitution.

Section 74.1103(e) (now 47 CFR §76.91) of the
Commission’s rules establishes a network nonduplieca-
tion program rule for CATV systems in small areas
and populations, based upon a system of priorities of
signal strength contours. This is in direct contrast to
the policy of licensing overlapping network affiliates”

The Commission’s Television network rule provides city of
assignment exclusivity with no nonduplication protection. 47 CFR
53 :658 provides :

‘*Territorial exclusivity. No license shall be granted to
television broadcast station having any contract, arrangement,
or understanding, express or implied, with a network organi-
zation which prevents or hinders another broadcast station
located in the same community from broadcasting the net-
work's programs not taken by the former station, or which
prevents or hinders another broadcast station located in 6
different community from broadcasting any programs of the
network orgamzation. This regulation shal] not be construed
to prohibit any contract, arrangement, or understanding be

in a different community and of encouraging and, in
fact, coercing networks to affiliate with small market
of any number of other affiliates of the same network to
larger areas and populations.

The discrimination involved in the operation of the
rule against CATV systems and its subscribers is so

as to constitute a violation of the explicit con-
cept of equal protection of the laws of the 14th amend-
ment, as embodied in the “due process of law”’ provi-
sion of the 5th amendment.

Sections 74.1103(e) and (f)” make it clear that the
Commission fully intends that the public shall not be
entitled to use cable television to receive programs
which the Commission has licensed a broadcast station
to deliver to them ; that the public must use and impro-
vise their own antennas—even though located within a
service contour expressly provided by the FCC or be-
yond those contours but well within reception range of
the station—is the governing issue before this Court.

The court below has conceded :
“The CATV systems accurately observe that
Docket 16041 fosters simultaneous of

network fare in some areas.”’ (Slip Opinion, p. 7)
tween a station and a network organization pursuant to which

tty specified in the instrument of authorization as the location
the station."’ (Emphases supplied. )

* Section 74.1103(e) provides that any system (which operates
within the Grade B or higher priority contour of any television
station) shall, upon request, maintain that station's exclusivity as
a program outlet against lower priority, duplicating signals. Sec-
tion 74.1103(f) provides that a CATV system shall, upon request
of a station entitled to such exclusivity, refrain from duplicating
any broadcast by such station on the same day.

But, the court continued, since the Commission “hag
not yet adopted any rule requiring a network to dupi-
cate its programs in Winchester or Front Royal
through multiple station affiliations,’”’ the court need
not decide whether or not the Commission has unconsti-
tutionally discriminated against CATV by precluding
(via 74.1103) similar duplications. Since WHAG-TY
network affiliation took place while the proposed rule
was pending in Docket 16041, it is evident that the
effect of the pending rule-making and the Commis.
sion’s Docket 16041 ‘‘policy’’ had the same effect as a
“‘rule’’. Hence, the court purged the Commission's
conduct, or avoided judging it, because, the Commis.
sion used the administrative device of adopting a
‘policy’? rather than a fixed rule. In so doing, the
court may well be encouraging the Commission to adopt
other unlawful requirements—provided that they are
characterized as ‘‘policies’’ and are thought to be safe
from judicial scrutiny. Clearly, however, the Commis-
sion’s administrative policy is a rule within the mean-
ing of 5 USC 551(4)” and is reviewable as such.”

205 USC 551 (4) provides as follows:

**(4) ‘rule’ means the whole or a part of an agency state.
ment of general or particular applicability and future effect
rs to implement, interpret, or prescribe law or podl-
icy .

2 In Abbott Laboratories vy. Gardner, 387 U.S. 136, 149 (1967)
the Court laid down the test of whether an administrative deter.
mination is ripe for review. The Court said:

‘Without undertaking to survey the intricacies of the
ripeness doctrine ** it is fair to say that its basic rationale is
to prevent the courts, through avoidance of premature adjudi-
cation, from entangling themselves in abstract disagreements
over administrative policies, and also to ;.rotect the agencies
from judicial interference until an administrative decision bas

1’See 3 Davis Administrative Law Treatise, ¢. 21
(1958) ; Jaffe, Judicial Control of Administrative Action,
e. 10 (1965). [p. 413 for instances of FCC ’’jawbone”’ ad-
ministration. ]

a’

Perhaps the leading case on the applicability of equal
protection of the laws clause of the 14th amendment to
the due-process clause of the 5th amendment is Bolling
y. Sharpe In this case, the Court upheld the chal-
lenge to the validity of segregation in the public schools
of the District of Columbia. The Court noted that the
5th amendment which is applicable to the District of
Columbia does not contain an equal protection clause
as does the 14th amendment which applies to the States.

The Court said,

‘“ . . But the concepts of equal protection and

due process, both stemming from our American
ideal of fairness, are not mutually exclusive. The
‘equal protection of the laws’ is a more explicit
alequeed of prohibited unfairness than ‘due pro-
cess of law,’ and, therefore, we do not imply that
the two are always interchangeable phrases. But,
as this Court has recognized, discrimination may
be so unjustifiable as to be violative of due proc-
ess.’’

An earlier case, Neild v. District of Columbia™ in-

volved a tax on the gross receipts of sales of fruits and

vegetables. There, the Court said,

“To the extent that the ‘equal protection of the
laws’ exist in the District of Columbia it depends

been formalized and its effects felt in a concrete way by the
challenging parties. The problem is best seen in a twofold
aspect, requiring us to evaluate both the fitness of the issues
for judicial decision and the hardship to the parties of with-

holding court consideration.”’

See also Columbia Broadcasting System v. United States, 316 U.S.
407, 418-419(1941) FCC Network Rules; Hearst Radio, Inc. v.
FCC, 167 F.2d 225 (1948) FCC Bluebook on Programs; Citizens
Communications Center v. FCC, 447 F.2d 1201, (1971) FCC

Renewal Policy.

22347 U.S. 497 (1954)

% Footnote omitted.

110 F.2d 246 (D.C. Cir. 1940).

24

mga tiie fae geccen danse of the Bem acl
ment and other visions of the Constitution —
which are applicable to the federal government,
In a sense it may be said that every citizen is en.
Gund to Gn. cendl entiection of Go len of
may be adopted and administered by the f
government throughout the land.”’

A number of subsequent cases are to like effect.*
is submitted that the discrimination against CATV’s
reception of duplicating signals is so discriminatory
as to constitute a violation of the 5th and 14th amend.
ments to the Constitution of the United States.

7am

CONCLUSION

The issues are of great importance in the adminis-
tration of the communications laws of the country and
well worthy of this Court’s consideration and resolu-
tion. The Petition for a Writ of Certiorari should be
granted.

FREDERICK W. Forp &
Lee G. Lovett
1819 H Street, N. W. “s
Washington, D. C.
Attorneys for Petitioners
Of Counsel:
PrrrTman Lovett Forp
HENNESSEY AND WHITE
1819 H Street, N. W.
Washington, D. C. 20006

25 schneider v. Rust, 377 U.S. 163 (1964); Bolton v. Harris, 395
F.2d 642, 643 (1968); Washington v. United States, 401 F.2d 915,
922 (1968) ; and Harrell v. Tobriner, 279 F.Supp. 22 (1967).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1344%3A1. Public record. Not legal advice.