Opposition Brief — Winchester TV Cable Co. v. Federal Communications Commission

“othe Supreme Court of the Buited States

OCTOBER TERM, 1972

No. 72-362

WINCHESTER TV CABLE Co., INC., ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA

E ON PETITION FOR A WRIT OF CERTIORARI TO THE

mt UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

oe MEMORANDUM FOR THE

% _ FEDERAL COMMUNICATIONS COMMISSION AND THE

| UNITED STATES OF AMERICA IN OPPOSITION

a Petitioners are operators of community antenna

‘television (“CATV”) systems in Winchester and

> Front Royal, Virginia. Both systems carry the pro-

"gramming of the Washington, D. C., station WRC-

'‘4'V, a National Broadcasting Company (“NBC”) af-

filate. In January 1970, the Hagerstown, Maryland,

(1)

station WHAG-TV commenced operation, also as an

NBC affiliate. Winchester is within the principal

community contours of WHAG-TV and Front Royal

_ is within that station’s Grade B contours. (Contour

\ designations are based on a station’s predicted sig-

nal strength.) Neither Winchester nor Front Royal

is within the Grade B contours of WRC-TV. Asa

consequence, in the areas served by petitioners

WHAG-TV has a higher priority than WRC-TV for

purposes of the Federal Communications Commis-

sion’s nonduplication rule, 47 C.F.R. 76.91, 76.93 and

76.95, 37 Fed. Reg. 3285-3286 (Pet. App. E, 2la-

27a). This rule provides, in effect, that CATV sys-

tems may not carry programming of one station which

duplicates the simultaneous programming of another

station with higher priority. Under this rule, pe

titioners are prohibited from transmitting the NBC

programs of WRC-TV at the same time that those

programs are being shown on WHAG-TV.

Petitioners’ requests for waiver of the nonduplica-

tion rule were summarily denied by the Commission.

29 F.C.C. 2d 482 (Pet. App. B, 1la-13a); 30 F.C.C.

2d 610 (Pet. App. C, 14a-19a). The court of appeals

affirmed. 462 F. 2d 115 (Pet. App. A, 1a-10a).

Petitioners’ sole contentions here are that the non-

duplication rule exceeds the Commission’s statutory

authority and denies equal protection of the laws to

CATV operators and subscribers.

1 The substance of the nonduplication rule was contained in

47 C.F.R. 74.1108 at the time the proceeding before the Com-

mission was initiated.

1. In United States v. Southwestern Cable Co.,

392 U.S. 157, this Court recognized the Commission’s

authority to regulate CATV through the issuance of

rules “reasonably ancillary to the effective perform-

ance of the Commission’s various responsibilities for

the regulation of television broadcasting” (id. at

178). The nonduplication rule involved here falls

well within that authority.’

Under Section 303(g) and (h) of the Communi-

cations Act, 47 U.S.C. 303(g) and (h), the Com-

mission is required to “encourage the larger and more

effective use of radio in the public interest” and is

authorized “to establish areas or zones to be served

by any station.” Section 307(b) of the Act, 47

U.S.C. 307(b), further provides that the Commission

“shall make such distribution of licenses, frequencies,

hours of operation, and of power among the several

States and communities as to provide a fair, efficient

and equitable distribution of radio service * * *.” In

carrying out these responsibilities, the Commission

has determined that the establishment and mainte-

nance of local television service is a fundamental need

of an informed citizenry; that these outlets for com-

munity expression are jeopardized by the competitive

advantages of CATV systems; and that the nondup-

lication rule is necessary to the maintenance of the

* Petitioners argue primarily that the Commission is not

authorized to regulate “reception” and thus has no authority

over CATV systems. But this general issue was settled ad-

versely to petitioners in United States v. Southwestern Cable

Co., supra. See, also, United States v. Midwest Video Corp.,

. 6 US. 649.

4

economic viability of local broadcasters. See First

Report and Order, 38 F.C.C. 683; Second Report and

Order, 2 F.C.C. 2d 725. As the court below correctly

concluded in an earlier case, the nonduplication rule

represents “a fair adjustment and accommodation of

conflicting claims to first place in the public interest”

and is a proper exercise of the Commission’s authority

to regulate CATV. Wheeling Antenna Co. v. United

States, 391 F. 2d 179, 183 (C.A. 4). Moreover, the

other courts of appeals which have reviewed the non-

duplication rule also have upheld it as within the

Commission’s authority. Great Falls Community TV

Cable Co. v. Federal Communications Commission,

416 F. 2d 238 (C.A. 9); Titusville Cable TV, Inc. v.

United States, 404 F. 2d 1187 (C.A. 3); Conley

Electronics Corp. v. Federal Communications Commis-

sion, 394 F. 2d 620 (C.A. 10).

2. Petitioners’ challenge to the constitutionality of

the nonduplication rule is based on the fact that the

rule applies only to CATV systems, whereas simul-

taneous duplication of programming by broadcasting

stations is not similarly prohibited. To the extent

that any such discrimination exists,” however, it has

a reasonable basis rooted in the basic purposes of the

Communications Act.

In Report and Order of Docket 16041, 26 F.C.C.

2d 772, the Commission announced a policy of en-

*The court below took note of petitioners’ constitutional

contentions but regarded them as premature in light of the

absence of any Commission rule permitting duplicative pro-

gramming in the areas which petitioners serve.

couraging the establishment of network affiliates in

small “market fringe areas” presently served only

by distant stations located in central market areas.

The creation of such affiliates would in many cases

result in some duplication of network programming.

Thus in a sense local broadcasters are accorded a

privilege which the nonduplication rule denies to

CATV systems. However, the ends served by Docket

16041 and the nonduplication rule are the same: the

establishment and maintenance of local television

service. See Television Antenna Cable, Inc., 30 F.C.C.

2d 610. In Docket 16041 the Commission was en-

couraging the development of additional local broad-

casting services; by its nonduplication rule the Com-

mission seeks to prevent any diminution of local

broadcasting services which might otherwise be oc-

casioned by CATV activity. Both these policies are

grounded in the Commission’s reasonable determina-

tion that “the larger and more effective use of radio

in the public interest” and the “fair, efficient and

equitable distribution of radio service” will best be

served by the establishment and maintenance of local

casters and CATV systems created by Docket 16041

and the nonduplication rule therefore has a reason-

able basis grounded in the policies of the Act, it

does not constitute a denial of due process or of equal

protection of the laws.

For the foregoing reasons it is respectfully sub

mitted that the petition for a writ of certiorari should

be denied.

& ©. 6. covennmeer pawrrme orice; 1972 470253 6258