# Petition for Writ of Certiorari — Horton v. City of Houston > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1686%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 813 ## Text 03156 3 MAY 18 2008 No. OFFICE Of THE CLERK In The Supreme Court of the United States \ “2 ROBERT HORTON, NATIONALIST TELEVISION, a Texas Non-Profit Corporation; and BARRY HACKNEY, Petitioners VS. CITY OF HOUSTON, TEXAS and ACCESS HOUSTON CABLE CORPORATION, Respondents ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 2. “9° PETITION FOR A WRIT OF CERTIORARI > “~ RICHARD BARRETT Counsel of Record P O Box 2050 LEARNED MS 39154 (601) 885-2288 Attorney for Petitioners \ QUESTION PRESENTED Whether a rule for the charging of selective, arbitrary and standardless fees for the broadcasting of non-locally- produced programs over public-access cable-television, which constricts diversity of information sources and ser- vices, necessarily considering content, violates the Cable Television Policy Act of 1984, the Equal Protection Clause of the Fourteenth Amendment and the First Amendment, .S invalid on its face or as applied. il PARTIES TO THE PROCEEDINGS Petitioners Nationalist Television, a Texas non-profit corporation; Robert Horton; and, Barry Hackney. Respondents City of Houston, a Texas municipal corporation, and Access Houston Cable Corporation, a Texas corporation il TABLE OF CONTENTS pp Ae eee eos ill py ke a A Sg) 60g | Vv PETITION FOR WRIT OF CERTIORARI .......... l STATEMENT OF JURISDICTION ................ 2 CORPORATE DISCLOSURE STATEMENT ....... 2 CONSTITUTIONAL PROVISIONS ............... 2 EE rg cere eee 3 LOCAL RULES OF PROCEDURE ................ 5 eimeemen) OF THECASE .................... 6 REASONS FOR GRANTING Tea FRAT... 9 I. THE RULE FOR THE CHARGING OF SELECTIVE, ARBITRARY AND STAND- ARDLESS FEES FOR THE BROAD- CASTING OF NON-LOCALLY PRO- 1V DUCED PROGRAMS OVER PUBLIC-AC- CESS CABLE-TELEVISION, WHICH CONSTRICTS DIVERSITY OF INFOR- MATION SOURCES AND SERVICES, NECESSARILY CONSIDERING CON- TENT, VIOLATES THE FIRST AMEND- MENT AND IS INVALID ON ITS FACE oe eo): ri re 11 I]. THE RULE FOR THE CHARGING OF FEES FOR THE BROADCASTING OF NON-LOCALLY PRODUCED PRO- GRAMS OVER PUBLIC-ACCESS CA- BLE-TELEVISION, WHICH CREATES A CATEGORY FOR THOSE WHO CAN PAY TO BROADCAST VERSUS THOSE WHO CANNOT AFFORD TO PAY AND, THEREFORE, CANNOT BROADCAST, VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH A- MEI oe 20 CONCIII 23 I be ee ee App. | A. APPEALS’ COURT OPINION WE 5h oa eck ees aeeen App. | B. APPEALS’ COURT MANDATE WEE Fo Fie es chee App. 3 Vv C. DISTRICT COURT OPINION on in) SEO ee ree App. 5 D. APPEALS COURT OPINION Horton I E. DISTRICT COURT OPINION’ os Nr aN Ae App. 56 Vi TABLE OF AUTHORITIES Cases Arkansas Writers’ Projeci, Inc. v. Ragland, SSE ELD. Bae Cee ia Peake wer heees 19 Associated Press v. United States, 326 U.S. 1 CRY 6 ccawen tlawene eee oe ee ea 17 Boos v. Barry, 485 U.S. 312 (1988) ............... 13 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) ............ 18 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....... 13 Buckley v. Valeo, 424 U.S. 1 (1976) .............. 22 Chicago Cable Communications v. Chicago Cable Com’n, 879 F.2d 1540 (7th Cir. 1989), cert. den. 493 U.S. 1044 (1990) ....... 12 City of Lakewood v. Plain Dealer Publ’g, 666 1S. THOU Ree oss a ee ee eee 12 City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986)....... 1] Columbia Broadcasting System, Inc. v. Democratic National Committee, SUD US. PRES lee eo cs eae ehas anne 20, 21 Vii Community Communications Corp. v. City of Boulder, 660 F.2d 1370 SE 0 aye as why chase eh bcs 18 Connick v. Myers, 461 U.S. 138 (1983) ............ 23 Cox v. New Hampshire, 312 U.S. 569 (1941) ....... 20 Follett v. Town of McCormick, 321 U.S. 573 CRUE us bu seb aes oes ees ee 10 Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123 (1992) er er WETE Tre TeTe TTT eres. Ve Se Glendora v. Levin, 24 Fed. Appx. 474, 2001 West Law 1587415 (6th Cir.2001) ..... 16 Horton v. City of Houston, Civ. Action POO TEPER VOOM co sccescasetevenccsesios l Horton v. City of Houston, No. 03-20450 Sa nox 624 he ies ee eee 1,7 Horton v. City of Houston, 179 F.3d 188 Ces 6h ce cy uenenae honk brace un 1,6 Hurley v. Irish-American Gay, Lesbian and Bi-Sexual Group of Boston, 515 Se Ee SUE 65 oon eek eee eaes 19 Jones v. Opelika, 319 U.S. 103 (1943) ......00.0... 10 Vill Missouri Knights of the Ku Klux Klan v. City of Kansas City, 723 F. Supp. ESOT COV EPO EMO) oc ces cccnvcccsvevecs 17 Murdock v. Pennsylvania, 319 U.S. 105 SEED. 65:65:04 sede deeseeee ce cece 10, 21 NAACP v. Button, 371 U.S. 415 (1963) 2.0.2.0... 14 New York Times Co. v. Sullivan, 376 U.S. 254 EPR. cons ocv cas cake eeee kee eran 10 Red Lion Broadcasting v. FCC, 395 U.S. 367 SO svc ndasacbeadaeeenan iran. cee 18 Regan v. Time, Inc., 468 U.S. 641 (1984) .......... 22 Reno v. ACLU, 521 U.S. 844 (1997) ........000.... 15 Smith v. Goguen, 415 U.S. 566 (1974) ............. 13 Turner Broadcasting System v. FCC, Ed Ws GE EE kb heed chee dev enews 15 Warner v. American Cablevision of Kansas City, Inc., 699 F.Supp. 851 CAA I ski hie i ae le a ee 16 WLNY-TYV, Inc. v. FCC, 163 F.3d 137 ele 8 | Or eer rE er re em may 19 Constitution Amendment I, United States Constitution cakanyes i, 6, 8, 10 11, 12, 13, 17, 18, 19, 21, 22, 23, 24 Amendment XIV, United States Constitution Cee etal we bod cao dined ae ale we alu 1, 6, 20 Statutes eS a ee 2 Me gr yuo ore sda a ax avns 2 ke 5 i ee i, 3, 6, 10, 17, 19, 21 id | Et ene ne 13,17 ee a gre Wa a G4 4 bk by ha Maca dea is 4 RGR a 4 re 13 Local Rules 2.A-5 Program Contract and ee 5 Rules Rule 29.1, Supreme Court Rules ................... 2 Other Authority Congressional Findings and Policy, Pub. L. 102-385, Sec. 2(a), (b), Oct. 5, 1992, 106 Stat. 1460, 1463(b)(1) 2.2... 9 Federal Limits, 913.08, Telecommunications Regulations: Cable, Broadcasting, Satellite and the Internet, Vol.1, 13-73, Charles D. Ferris, LexisNexis, Matthew Bender, Newark NJ (2002) ................. 16 HR Rep. 98-934, 98th Cong. Sess. 46 (1984) ........ 9 Modern Communications Law, Vol. 1, Harvey L. Zuckerman, Access to Channels of Communication 1.8, 137 A(2)(a), at 149, West Publishing Co., St. Paul, MN (1999) ......0........... 16 Public Access, The Free Access Channel Requirements, §15.03[1], Telecommunications Regulations: Cable, Broadcasting, Satellite and the Internet, Vol. 2, Charles D. Ferris, LexisNexis, Matthew Bender, Be re ee 15 Xl The 1976 Revision to the Access Rules, 1976 Report and Order, 415.04, Telecommunications Regulations: Cable, Broadcasting, Satellite and the Internet, Vol. 2, Charles D. Ferris, LexisNexis, Matthew Bender, | Newark NJ (2002) ........................ 15 The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 a Bee Paar en gceeioe a ir Oe 14 U.S. Code Congressional & Administrative News, 98th Cong., Vol. 5, p. 4668 SN ee ya eaten pars occ 17 U.S. Code Congressional & Administrative News, 98th Cong., Vol. 5, pp. 4672-73 CSS ae irsot os ee ee 16, 18, 21 l PETITION FOR A WRIT OF CERTIORARI Petitioner, The Nationalist Movement, by and through counsel, prays that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit in this matter. OPINIONS BELOW The unpublished ruling of the United States Court of Appeals for the Fifth Circuit from which certiorari is sought is contained in Robert Horton, Nationalist Televi- sion and Barry Hackney v. City of Houston and Access Houston Cable Corporation, No. 03-20450, at Appendix “A,” dated March 17, 2004, with Judgment dated April 8, 2004, at Appendix “B,” affiriaing judgment of the United States District Court for the Southern District of Texas, Houston Division, in Robert Horton, Nationalist Television and Barry Hackney v. City of Houston and Access Houston Cable Corporation, Civ. Action No. H-92-CV-3451, dated March 31, 2003, at Appendix “C,” pursuant to remand of the United States Court of Appeals for the Fifth Circuit in Robert Horton, Nationalist Television and Barry Hackney _v. City of Houston and Access Houston Cable Corporation, 179 F.3d 188 (Sth Cir.1999), at Appendix “D,” dated June 18, 1999, which reversed and remanded Robert Horton, Nationalist Television and Barry Hackney v. City of Hous- ton and Access Houston Cable Corporation, Civ. Action No. H-92-CV-3451, at Appendix “E,” dated October 16, 1997. 2 STATEMENT OF JURISDICTION © The jurisdiction of this Court is invoked pursuant to 28 USC §1254(1) and 2106. CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29.1, Petitioner, Nationalist Televi- sion, states that it isa Texas non-profit corporation, having no parent corporation. It has no subsidiaries. °, “~ CONSTITUTIONAL PROVISIONS Amendment I, United States Constitution: Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to as- semble, and to petition the Government for a re- dress of grievances. Amendment XIV, United States Constitution: Section 1. All persons born or naturalized in the United States, and subject to the Jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or 3 enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protec- tion of the laws. STATUTES 47 USC §521, Cable Television Policy Act of 1984 PURPOSES The purposes of this subchapter are to - (1) establish a national policy concerning cable com- munications; (2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community; (3) establish guidelines for the exercise of Federal, State, and local authority with respeci to the regulation of cable systems; } (4) assure that cable communications provide and 4re encouraged to provide the widest possible diversity of in- formation sources and services to the public; 4 47 USC §522, Cable Television Policy Act of 1984 DEFINITIONS For purposes of this subchapter - (15) the term “public, educational, or governmental access facilities” means - (A) channel capacity designated for public, educational, or governmental use; and (B) facilities and equipment for the use of such channel Capacity; 47 USC §531, Cable Television Policy Act of 1984 CABLE CHANNELS FOR PUBLIC, EDi "CATION- AL, OR GOVERNMENTAL USE - (e) Editorial control by cable operator Subject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, ed- ucational, or governmental use of channel Capacity pro- vided pursuant to this section. 2 5 LOCAL RULES OF PROCEDURE ACCESS HOUSTON 2.A-5 PROGRAM CONTRACT AND RESPON- SIBILITY: Before access programs are scheduled for cable-cast, the access program provider must sign a Program Contract which holds the program provider liable for content of the program and pay all applicable fees. In signing the Program Con- tract, the program provider agrees in writing that his or her program does not include any form of “constitutionally unprotected speech.” The said fees are set out on Page Three of the said Rules & Procedures, styled: The Public Access Channel Fees: Program Distribution Programs Produced Locally Individuals & Organizations FREE Programs Produced Elsewhere Individuals $75 / hr Organizations $100 / hr 4 “~ 6 STATEMENT OF THE CASE Petitioners Barry Hackney and Robert Horton, as resi- dents of Houston, Texas, desired to broadcast documentary and news programs over the Houston public-access cable- television channel. Petitioner, Nationalist Television, do- miciled in Houston, is a non-profit charitable and educa- tional corporation, which produces the programs, entitled Airlink, in Mississippi. The content of Airlink, which is not obscene, has been described by Petitioners as “pro-majority,” by Respondents as “white supremacist,” App. 37, and by others as “contro- versial.” Content comes from many diverse sources, out- side of Houston city-limits. Respondents imposed a $100.00 per-hour fee to broadcast “non-locally produced” programs, App. 59. Horton, who refused to pay the fee, and Hackney, who was unable to afford the fee, commenc- ing litigation to redress violations of the First and Four- teenth Amendments and the Cable Act. The trial court granted summary judgment in favor of Respondents on the grounds that there was no evidence that Respondents had acted arbitrarily. On appeal, the de- cision was reversed and remanded on the grounds that the regulation was content-neutral, but that Respondents had failed to show that the regulation was narrowly tailored to avoid abridging the First Amendment. The appeals’ court in Horton I concluded that insofar as the First Amendment was impacted, the trial court should not simply “rubber- stamp” the regulation, but agonized that “[m]Juch is uncer- tain about the scope of First Amendment benefits and bur- 7 dens in the cable industry,” App. 54. The holding was that public-access was a public forum, subject to “intermediate” scrutiny, rather than akin to a traditional public forum, subject to “strict” or “height- ened” scrutiny. Under the “intermediate” scrutiny test, on remand, the trial court held that the fee conferred some benefit and, therefore, was narrowly-tailored and promoted “localism,” rather than having to conclude that a “compel- ling state interest” was required to be served, had the stan- dard akin to the traditional public forum been required. On appeal in Horton II, the appeals’ court affirmed that the fee was “narrowly-tailored” to promote “localism.” Public-access is funded by the municipality, initially at some $500,000.00 per year, which now has reached some $900,000.00 per year, App. 21. There is no scarcity of airtime, App. 21, 25, and programs are repeated four or more times. Airlink comes “pre-packaged,” requiring no additional facilities or overhead to broadcast. There are no standards or guidelines for the charging of fees or the dif- ferentiation of amounts of fees between “individuais” and “organizations.” Initially, Airlink had sought to broadcast its weekly show beginning during the Republican National Conven- tion, held in Houston in 1992. News accounts labeled it “white-supremacist.” The program was banned, ostensibly for non-payment of “non-locally-produced” fees. But, after the first court-hearing, the ban was lifted and the pro- gram was broadcast for several weeks, App. 15-16, into 1993, until a program was tendered criticizing homosexu- 8 ality in the Army, at which time the show was booted, again. The Executive Director had testified, initially, that the fees for non-locally-produced programming were not needed and should be abolished, App. 50. In 1998, the fees were osiensibly abolished; however, other fees were imposed in their place, App. 8. The case is timely brought here to address the matter of first-impression of whether public-access is akin to a tradi- tional public forum, subject to heightened scrutiny under the First Amendment, and whether “localism” could be effected in a less intrusive manner than by the imposition of standardless and arbitrary fees. 9 REASONS FOR GRANTING THE PETITION Cable-television is a new medium, only some two-de- cades old. Public-access, which allows ordinary, local citizens to produce shows and air their views, has been a valuable and far-reaching part of the medium. Congress has anticipated the growth of the medium! and attempted to assure that the availability to the public of a diversity of views and information through cable television be pro- moted,’ with public-access available on a first-come-first- served basis. However, at this critical juncture in the de- velopment of public-access, the City of Houston and its public-access operator have imposed fees, which have ex- cluded some local residents from broadcasting. The pretext has been to “raise revenue,” App. 18, 32, from local resi- dents whose programs are “produced” outside the city, but the effect has been to preclude “controversial” program- ming. And, should the fee-scheme proliferate, public-ac- cess will no longer be meaningfully “public” nor afford genuine “access,” except to those who may be able to af- ford to pay. Public-access has already been regarded as a public forum, but the Fifth Circuit seemed perplexed that defini- ' “Greater demand” anticipated, HR Rep. 98-934, 98th Cong. Sess. 46 (1984) (urging franchising authorities to combine access channels until great demand develops). ? Congressional Findings and Policy, Pub. L. 102-385, Sec. 2(a), (b), Oct. 5, 1992, 106 Stat. 1460, 1463(b)(1). 10 tive guidance from this Court was lacking as to the full extent of the forum. Petitioners seek to construe public- access as akin to the Internet and a public-access broad- caster as the same “town-crier” as the Internet-publisher, to the end that speech may not be abridged, except for a compelling governmental interest. A retrenchment, now, would not only abrogate the letter and spirit set out by Congress in the Cable Act, but adversely impact strong national policy, under the First Amendment, that discus- sion of public-issues in the public forum be wide open and robust °. Granting the Writ will also give the Court an opportu- nity to review and, hopefully, reverse the establishment of a fee-mechanism which caters to the wealthy in a public forum, in a manner which the Court has, time and again, denounced. Striking down fees, whether grounded upon the rationale of a “tax upon knowledge,” as in Murdock v. Pennsylvania,’ 319 U.S. 105 (1943), which prohibits a fee for exercise of a constitutional right, or “arbitrary con- duct,” as in Forsyth County, Georgia v. The Nationalist * There is a “profound national commitment” to the principle that “debate on public issues should be uninhib- ited, robust and wide-open.” New York Times Co. v. Sul- livan, 376 U.S. 254, 270 (1964). * See also Jones v. Opelika, 319 U.S. 103 ( 1943) (no license fee or tax upon exercise of the First Amendment); Follett v. Town of McCormick, 321 U.S. 573 (1944) (strik- ing down $1.00 license fee). 1] Movement, 505 U.S. 123 (1992), which prohibits a fee as a potential for censorship by an administrator, guidance from the Court will surely be a powerful boost to public- access. Although some have suggested that this case is about “localism,” which is in no wise under assault, it is more about the dissemination of ideas and the protection of free-speech. PRG. OSITION I THE RULE FOR THE CHARGING OF SELEC- TIVE, ARBITRARY AND STANDARDLESS FEES FOR THE BROADCASTING OF NON-LO- CALLY PRODUCED PROGRAMS OVER PUB- LIC-ACCESS CABLE-TELEVISION, WHICH CONSTRICTS DIVERSITY OF INFORMATION SOURCES AND SERVICES, NECESSARILY CONSIDERING CONTENT, VIOLATES THE FIRST AMENDMENT ANDISINVALIDONITS FACE OR AS APPLIED. It would appear that but one standard, when the First Amendment impacts, might justify the limiting of public- access programming and diverse-views propagation. That would be a scarcity of facilities or airtime. Cf City of Los Angeles v. Preferred Communications, 476 U.S. 488, 492, 495 (1986) (physical scarcity of available space and lack of frequencies determinative). However, in the case at bar, there is no scarcity of airtime, App. 7, and no lack of facili- ties to broadcast. Airlink tapes are provided ready to be broadcast and there is no additional overhead involved, App. 24-25. If airtime were filled up with “locally-pro- duced” programs and “non-locally-produced” shows 12 threatened to overwhelm them,’ some rationing mechanism might be in order. But, there is no such scarcity. It has been postulated that raising funds for the con- ducting of a “survey” or purchasing a piece of extra equip- ment “promotes” “localism,” even though programs ten- dered by local residents unable to pay are kicked off the air. It has been said that such funds are “beneficial,” App. _ 26-27. A similar contention was turned down in Forsyth County, 505 U.S. at 136, however, where it was argued that a fee had to be charged to offset police-costs in polic- ing a public assembly. While the Court noted that “raising revenue” was an “important government responsibility,” the charging of fees in derogation of the First Amendment could not be justified. Although it has been argued that the “content” of the program is not considered, the potential® for abuse intrudes > As in Chicago Cable Communications v. Chicago Cable Com'n, 879 F.2d 1540 (7th Cir. 1989), cert. den. 493 U.S. 1044 (1990). ® See Forsyth County, 505 U.S. at 132. Arbitrary ap- plication of a government regulation is inherently inconsistent with a valid time, place and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view [emphasis added]. 13 where the fee is charged, waived, withdrawn or reimposed, without guidelines’ or without any reason being given. And, the Executive Director, alone, App. 16, 51-54, weighs the facts to make such determination, see e.g. Boos v. Barry, 485 U.S. 312, 318-391 (1988) (content necessar- ily had to be considered to determine legality),® as he deems necessary to determine whether a broadcaster is an See also, City of Lakewood v. Plain Dealer Publ’g, 486 U.S. 750, 763 (1988) (“[The] danger [of a First Amend- ment violation] is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government. Cf Smith v. Goguen, 415 U.S. 566 (1974) (for the potentiality for abuse when a measure has the potential to be administered in an arbitrary man- ner). ? See Broadrick v. Oklahoma, 413 U.S. 601 (1973) (“reasonable” time, place and manner restrictions may not delegate standardless discretionary power to local function- aries). 8 See also 47 USC §532(c)(2): A cable operator shall not exercise any editorial control over any video programming provided pur- suant to this section, or in any other way consider the content of such programming.... 47 USC §521(4) expresses the will of Congress that “the widest possible diversity of information sources and services to the public” be assured on public-access. 14 “individual,” subject to one fee, or an “organization,” sub- ject to another fee, or if he grants a waiver’ of fees, at all. Forsyth County, 505 U.S. at 133, n. 10: The District Court’s finding that, in this instance, the Forsyth County administrator applied legiti- mate, content-neutral criteria, even if correct, is ir- relevant to this facial challenge. Facial attacks on the discretion granted a decisionmaker are not de- pendent on the facts surrounding any particular per- mit decision. If the case at bar dealt with, say, a locality charging a local hunter one fee and out-of-state hunters a higher fee, on the grounds that it would reduce an influx of hunters and help in conserving wildlife, who could quarrel? And, perhaps, under “intermediate” scrutiny, a similar finding might obtain. But, where a rule has a substantial risk!? of ” The on-again-off-again treatment, sometimes waiving the rule, sometimes attempting to enforce it, is plainly un- constitutionally arbitrary. Cf NAACP v. Button, 371 U.S. 415, 438 (1963) (“precision of regulation” required for constitutionally protected activity). '° “Respondent mounts a facial challenge to the... ordi- nance. It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation,” Forsyth County, 505 U.S. at 129. See also, The Void-For-Vagueness Doctrine in the Su- preme Court, 109 U.Pa.L.Rev. 67 (1960). 15 eliminating certain ideas or viewpoints from the public dialogue based upon content, there must be strict scrutiny, Turner Broadcasting System v. FCC, 512 U.S. 622, 642 (1994). The Court has already found the Internet to be akin to the traditional public forum, Reno v. ACLU, 521 US. 844 (1997) (extrapolating from the proverbial soapbo’ ), postu- lating that anyone with a phone line now had the capability to become a “town crier.” It is not a far stretch to conclude that anyone with a video camera could do likewise. In fact, but for the “maverick” ruling, below, it had generally been assumed that public-access was akin to the traditional public forum and, indeed, “Free TV,” instead of “Fee TV.” Cable systems were not permitted to charge for the use of airtime on the public access channel. Public Access, The Free Access Channel Requirements, 415.03[1], Telecommunications Regulations: Cable, Broadcasting, Satellite and the Internet, Vol. 2, Charles D. Ferris, LexisNexis, Matthew Bender, Newark NJ (2002) (stressing the “public-interest” obligation). At every step of the way in the development of public-access, the FCC mandated “diverse channel users” be provided for and en- couraged, finding “definite societal good” therefrom. Zhe _ _1976 Revision to the Access Rules, 1976 Report and Order, 915.04, Telecommunications Regulations: Cable, Broad- casting, Satellite and the Internet, Vol. 2, Charles D. Fer- 16 ris, LexisNexis, Matthew Bender, Newark NJ (2002). _ Such public policy was reiterated in 1984 that “public access channel [is to be] available on a first come, nondis- criminatory basis.” U.S. Code Congressional & Adminis- trative News, 98th Cong., Vol. 5 (1984), p. 4673. The only requirement, until now, has been that a local sponsor was required, Glendora v. Levin, 24 Fed.Appx. 474, 2001 West Law 1587415 (6th Cir.2001). Ifa munici- pality did not wish to carry out its obligations, it could ter- minate public-access altogether, cf. Warner v. American Cablevision of Kansas City, Inc., 699 F.Supp. 851 (D.- Kan.1988). Scholars, in discussing the “elusive” concept of the public forum in telecommunications, have suggested that Forsyth County applies to prevent an Administrator from being vested with sole and arbitrary authority to charge a fee for public-access, Modern Communications Law, Vol. 1, Harvey L. Zuckerman, Access to Channels of Communication 1.8, 137 A(2)(a), at 149, West Publishing Co., St. Paul, MN (1999). Former FCC-Chairman Charles D. Ferris has called the medium a “speaker’s corner” in a “classic public forum”: Because public access channels set up a form of video “Speaker’s Corner,” they pre- sent a classic public forum, thereby limiting regulation to content-neutral, narrow-tai- lored, time, place and manner restrictions. Federal Limits, 913.08, Telecommunications Regulations: 17 Cable, Broadcasting, Satellite and the Internet, Vol.1, 13- 73, Charles D. Ferris, LexisNexis, Matthew Bender, New- ark NJ (2002). Accord, Missouri Knights of the Ku Klux Klan v. City of Kansas City, 723 F. Supp. 1347 (W.D.Mo.- 1989) (finding “public forum”). Public-access is, as the name implies, “public,” under the Cable Television Policy Act of 1984, 47 USC §521 et seq. involving state-action. The intent of the Act, by its terms, is to assure and encourage the widest possible di- versity'' in cable communications, 47 USC §521(4). While '! See the legislative history of the Cable Act, which created public access. U.S. Code Congressional & Admin- istrative News, 98th Cong., Vol. 5 (1984), p. 4668. [A]ccess provisions contained in this legislation are consistent with and further the goals of the First Amendment.... which will foster the availability of a “diversity of viewpoints” to the listening audi- ence.... The goal of the First Amendment is to foster “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U.S. 1, 20 (1945). The interest in diverse sources of information is akin to, if indeed it is not the same as, the inter- est protected by the First Amendment... 18 examining the critical facts, de novo,'* the Court is urged to bear in mind the goal that “optimum use is made of the cable medium in the public interest,” Community Commu- nications Corp. v. City of Boulder, 660 F.2d 1370, 1379 (10th Cir.1981). This interest has been recognized time and time again. In Red Lion Broadcasting v. FCC, 395 US. 367, 390 (1969), for instance, the Supreme Court observed that [i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than _ to countenance monopolization of that market. As we enter the “information age,” access to tele- communications networks has become increasingly important to full participation in the political, eco- nomic, social, and cultural life of the nation. The First Amendment’s guarantee of a free flow of di- verse ideas will be reduced to an empty promise if access to information is not available to all our citi- zens. U.S. Code Congressional & Administrative News, 98th Cong., Vol. 5 (1984), p. 4673. '2 See Bose v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (independent examination of the record as a whole required) 19 “Localism” is of value, WLNY-TV, Inc. v. FCC, 163 F.3d 137 (2d Cir.1998). But in the context of this case, the nexus even of localism must be, Does the fee hinder the communication of ideas? In other words, look to sub- stance over form. Would not the public-interest be well- served if Mr. Hackney, for example, presented a tape he had filmed of the Presidential Inauguration, just as much as if Mr. Horton presented a tape of the Mayoral Inaugura- tion? As the Court noted in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), a newspaper may print an edited compilation of speech generated by other persons in its opinion pages. If the speaker or writer were in another locale, would the ideas be less-worthy or the First-Amendment less-encom- passing? The same rationale would seem to apply to the airing of a videotape, if the subject-matter may be outside the city-limits'’ or the editing-machine in another state, so long as, of course, under the Cable Act, the sponsor is a local resident and no other local producers are disadvan- taged or “local subjects” shunted aside, as a result. '3 The rules require that 51% of video be shot within the city-limits, App. 59. The administrator would, neces- sarily, be compelled to consider the content of the message sought to be conveyed to determine if the program were, therefore, “local,” with no fees, or “non-local,” for fees. But see, Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (prohibition against consideration of content of message). 20 PROPOSITION II THE RULE FOR THE CHARGING OF FEES FOR THE BROADCASTING OF NON-LOCAL- LY PRODUCED PROGRAMS OVER PUB- LIC-ACCESS CABLE-TELEVISION, WHICH CREATES A CATEGORY FOR THOSE WHO CAN PAY TO BROADCAST VERSUS THOSE WHO CANNOT AFFORD TO PAY AND, THEREFORE, CANNOT BROADCAST, VIO- LATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. A special status for would-be speakers based upon abil- ity to pay has been impermissibly created. If “localism,” that is to say the ability of local citizens to broadcast and focus on purely local topics, were adversely impacted, which it is not in this case, a less intrusive method’ could be devised to remedy the problem, without a fee. But man- dating that a local resident may not broadcast at all, if his video contains ideas in a setting, outside the city, App. 13, 59, unless he pays, not only excludes ideas from a very marketplace of ideas but shunts aside those who cannot afford to pay. Cf Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 123 (1973) (domination of the public agenda by the wealthy con- '* The proper exercise of governmental authority is simply to assure the first-come, first-served priority of dif- fering events ... seeking ... the same time, cf. Cox v. New Hampshire, 312 U.S. 569, 574-576 (1941). 21 demned). See also the legislative history of the Cable Act, U.S. Code Congressional & Administrative News, 98th Cong., Vol. 5 (1984), pp. 4672-73, where Congressional intent is summed up as: Public access channels available under H.R. 4103 would be available to all, poor and wealthy alike, thereby minimizing the Court’s fear in Democratic National Committee of domination of the media by the wealthy. This Court has already approved the concept of first- come, first-served: Congress ... may devise ... access that ... will afford increased opportunities for the discussion of public issues ... on a first come, nondiscriminatory basis. Columbia Broadcasting System, Inc. v. Democratic Na- tional Committee, 412 U.S. 94, 131 (1973), cited in U.S. Code Congressional & Administrative News, 98th Cong., Vol. 5 (1984), p. 4673. The Cable Act was said to have secured the First Amendment right of the viewers and listeners to a diversity of information sources, id. The instant fee amounts to a tax on speech, rather than a promoter of “localism” and, as such, is intolerable. See, e.g. Murdock, 319 U.S. at 133 (1943) (any charge for exer- cise of First Amendment rights is unconstitutional). 22 [T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly for- eign to the First Amendment. Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).'° One is given to wonder if Petitioners had submitted a video of the Super Bowl, filmed in Florida, instead of a “controversial” mes- sage filmed in Mississippi, the fee-requirement would have been enforced against them?'° '° A proposition with which this brief-writer, person- ally and parenthetically, disagrees. '© See Regan v. Time, Inc., 468 U.S. 641, 648-649 (19- 84) (regulations permitting government dis ‘rimination on the basis of content of message cannot be tolerated under the First Amendment). 23 CONCLUSION The Court has been diligent in assuring that the First Amendment does not lag behind technology in the Infor- mation Age. Cable-television and the Internet are the two major breakthroughs in modern communications which uniquely empower ordinary individuals to express ideas, not unlike the printing-press in earlier days. But for the impediment of overbroad, vague and chilling rule, which allows for the imposition of fees, public-access offers great promise. However, the fee-rule flies in the face of public- policy,’ the will of Congress, clear precedent of this Court and constitutional guarantees, beckoning others to perhaps apply the same brakes which have driven certain “contro- versial” ideas off the air. This is an important free-speech case, in which the lower courts have departed significantly from the content- neutrality doctrine clearly laid down by this Court, but in a manner and medium not yet full-addressed here. This case has broad implications for First Amendment rights, for if state actors are permitted to constrict this Court’s clear mandate that a regulation’s potential for abuse of the First Amendment will be considered in any facial chal- '7 Compare, Connick v. Myers, 461 U.S. 138 (1983) (public-issue speech ranked as highest-rung of First- Amendment values) with Forsyth County, 505 U.S. at 136 (progression of constitutional law relied upon “[iJn light of the Court’s subsequent First Amendment jurisprudence”). 24 lenge, there will be virtually no end to the schemes, diver- sions and ruses to thwart Congress’ clear intent that public- access broadcasting be wide-open and robust, on a first- come, first-served basis. If unbridled discretion is permitted to creep back into the marketplace of ideas, so that those regulating public- access programming may consider — actually or necessarily ~ the content of speech, the profound national commitment to wide open and robust discussion of public affairs will take a galling step backward. If a charge is allowed to be placed upon those seeking to exercise free speech over the public-access channels, with no compelling governmental reason for such a fee, the First Amendment will become more of a privilege than a right, and evermore ineffective, especially for the poor. The Court has not, as yet, denomi- nated public-access as a public-forum akin to the tradi- tional public-forum. But that time has come. For the foregoing reasons, the Petition for Writ of Cer- tiorari should be granted. RICHARD BARRETT Counsel of Record Richard Barrett PO Box 2050 Learned MS 39154 (601) 885-2288 Attorney for Petitioners Appendix 1 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-2003 1 ROBERT HORTON, NATIONALIST TELEVISION, a Texas Non-Profit — and BARRY HACKNEY, Plaintiffs-Appellants, versus CITY OF HOUSTON, TEXAS and ACCESS HOUSTON CABLE CORPORATION, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas H-92-CV-3451 March 17, 2004 Before REAVLEY, DAVIS and DeMOSS, Circuit Judges. Appendix 2 PER CURIAM:! After reviewing the record created on remand and con- sidering the briefs of the parties and argument of counsel, we are satisfied that the district court properly carried out our remand instructions. We also conclude that the district court did not err in concluding that the fee in question was narrowly tailored to achieve the legitimate objective of promoting localism. We therefore affirm the judgment of the district court. AFFIRMED. ' Pursuant to STH CIR. R. 47.5, the Court has deter- mined that this opinion should not be published and is not precedent except under the limited circumstances set forth in STH CIR. R. 47.5.4. ‘ppeittira D APPENDIX B UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 03-20450 D.C. Docket No. H-92-CV-3451 ROBERT HORTON; NATIONALIST TELEVISION, a Texas Non-Profit Corpora t ion, BARRY HACKNEY Plaintitfs -Appellants v. CITY OF HOUSTON, TEXAS; ACCESS HOUSTON CABLE CORPORATION Defendants -Appellees Appeal from the United States District Court for the Southern District of Texas, Houston. Before REAVLEY, DAVIS and DeMOSS, Circuit Judges. JUDGMENT This cause was considered on the record on appeal and was argued by counsel. Appendix 4 It is ordered and adjudged that the judgment of the Dis- trict Court is affirmed. IT IS FURTHER ORDERED that plaintiffs-appellants pay to defendants-appellees the costs on appeal to be taxed by the Clerk of this Court. ISSUED AS MANDATE: April 8, 2004 Appendix 5 APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ROBERT HORTON, BARRY HACKNEY, and NATIONALIST TELEVISION, a subsidiary of THE NATIONALIST MOVEMENT, a Texas Nonprofit Corporation, Plaintiffs, V. CITY OF HOUSTON, TEXAS, a Texas municipal corporation, and ACCESS HOUSTON CABLE CORPORATION, a Texas corporation, Defendants. CIVIL ACTION NO. H-92-3451 FINDINGS OF FACT & CONCLUSIONS OF LAW Pending before the Court are Plainti‘fs’ (collectively “N-TV”) claims against the defendant Access Houston Cable Corporation (“Access Houston”). The claims were Appendix 6 tried to this Court on August 31, 2001, and the Court makes findings of fact and conclusions of law as set out below.' After considering the testimony and exhibits in evidence, the parties’ arguments, and the applicable law, the Court finds that judgment should be granted in favor of Access Houston. | Procedural Background This case is currently on remand from the United States Court of Appeals for the Fifth Circuit. See Horton v. City of Houston, 179 F .3d 188 (Sth Cir. 1999). The Fifth Cir- cuit reversed the order granting summary judgment in fa- vor of Access on Plaintiffs’ challenge to the constitutional- ity of Access’s higher fee requiren ents for programming that is not “locally produced” in and around Houston, Texas. /d. at 189. The Fifth Circuit agreed that the regula- tion at issue was content-neutral and that Access had iden- tified substantial government interests that the regulation could advance. /d. at 193-96. However, it held that Access had failed to provide evidence that demonstrated, as a mat- ter of law, that the regulation was narrowly tailored to ad- vance its articulated substantial interests. /d. at 195-96. In particular, the court stated that: [Access] has not shown that, absent the fee charged to providers of non-local programs, its To the extent that any conclusion of law is more properly characterized as a finding of fact, and vice versa, the Court adopts it as such. Appendix 7 interest in promoting localism “would be achieved less effectively.” [United States v. Albertini, 472 U.S. 675, 689 (1985).] Access has not provided any evidence linking the amount charged to non-local producers and the promotion of local- ism. More precisely, Access has not shown the amount of revenue generated from the fee, the number of providers who have been charged the fee, or whether the fees have actually helped pur- chase equipment, train producers, enhance com- munity self-expression, or offset amounts under- written’ by Houston cable subscribers. Access ac- knowledged there is no scarcity of time available for programs, so the fee plays no role in rationing airtime favorably to locally produced programs. Id. at 195. Consequentiy, the Fifth Circuit remanded to this Court for further factual development, stating that: On remand, Access should prove how much reve- nue accrues trom the fee for non-locally-produced programs, as well as the purposes for which it uses the revenue. If the revenue is minimal-that is, if it fails to ration scarce airtime, to reimburse Ac- cess’s costs of airing non-locally-produced pro- grams, or to make any realistic dent in the costs borne bv cable subscribers for the production fa- cilities-then the district court may conclude that the fee suppresses protected speech without pro- viding any asserted benefits. Id. at 196. Appendix 8 On remand, Access and Plaintiffs conducted additional discovery and submitted motions for summary judgment. In the order addressing the motions, the Court noted that “the only remaining issue in this case ... is whether the in- creased payments that Access charged non-locally-pro- duced programs are a narrowly tailored means to advance the substantial government interests that Access has articu- lated.” Memorandum & Order, Dkt. # 107, at 5 (citing Horton, 179 F .3d at 195-96). As neither Plaintiffs nor Ac- cess had submitted evidence sufficient to demonstrate an entitlement to summary judgment, the Court denied both motions. /d. at 10. The Court then held a bench trial on August 31, 2001, where the parties were permitted to pres- ent evidence and argue their positions before the Court. The Court also permitted the parties to submit post-trial memoranda regarding the legal issues in the case. Mootness Before addressing the merits of this action, the Court will examine Access’s contentions that this action is now moot and therefore not justiciable. Access testified that it no longer charges the ... fees in question and Plaintiffs have not disputed this claim.” Access contends that Plain- tiffs’ challenge is to the constitutionality of the fees * During the bench trial, Plaintiffs did imply that Ac- cess now charges different fees which may be unlawful, but there is no evidence before the Court to indicate that the new fees are merely a substitution for the old, chal- lenged fees. Appendix 9 charged in the early 1990’s as those fees were applied to Plaintiffs. Since Access no longer charges those fees, there is no longer any danger of Plaintiffs suffering any constitu- tional deprivations and consequently no need for the Court to protect the .Plaintiffs from anything. Therefore, Access argues that Plaintiffs’ claims for declaratory and injunctive relief are moot.’ A case becomes moot upon the cessation of the unlaw- ful conduct if(1) there is no reasonable expectation that the alleged violation wili recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Texas Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 413-14 (Sth Cir. 1999). However, it is well settled that a defendant’s voluntary cessation of a 3 If Plaintiffs were seeking monetary damages for the past alleged deprivation, then cessation of the allegedly unlawful activity wou!d not render the case moot. See Har- ris v. City of Houston, 151 F.3d 186, 191 fn. 5 (Sth Cir. 1999) (stating that a claim for monetary relief in addition to the claims for injunctive and declaratory relief would have prevented the case from becoming moot). Plaintiffs did mention compensatory and punitive damages in their original complaint, but have not pursued these remedies. Rather, Plaintiffs’ counsel only mentioned injunctive and declaratory relief at the bench trial and in post-trial briefing which supports a finding that Plaintiffs have waived any monetary claims against Access that had been listed in their complaint. Appendix 10 challenged practice does not render a case moot and de- prive a federal court of its power to determine the legality of the practice unless it is “absolutely clear that the alleg- edly wrongful behavior could not reasonably be expected to recur.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598,609 (2001) (citing Friends of the Earth, Inc. v. Laidlaw Envi. Servs. (TOC), 528 U.S. 167, 189 (2000)). The Supreme Court has described this standard as “stringent,” see FOE, 528 U.S. at 189, and has held that a finding of mootness is justified “only if it [is] absolutely clear that the litigant no longer [has] any need of the judicial protection that it [seeks], Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 224 (2000). The “heavy burden” of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. See FOE, 528 U.S. at 189; accord Adarand Constructors, Inc., 528 U.S. at 222. Despite the heaviness of a defendant’s burden, the test is not whether the action originally giving rise to the con- troversy could not conceivably reoccur, but whether it is absolutely clear that the behavior could not reasonably be expected to recur. See City of Erie v. Pap’s A.M.,529 US. m, 303 (2000) (Scalia, J., concurring). Access could con- ceivably reinstate the allegedly unlawful fees. However, the inquiry is whether it is absolutely clear that Access could not reasonably be expected to reinstate the fees. Access presented witnesses at the bench trial who testi- fied both that Access no longer charges the fees in question and that Access has no intention to ever charge such fees Appendix 11 again. Access also affirmatively states in its post-trial briefing that it has no intention to ever charge such fees again which it claims judicially estops it from ever at- tempting to reinstate the fees in question. Furthermore, Patricia Garlinghouse testified at trial that she suggested eliminating the nonlocal fees when she became executive director in 1997.* At the time of the suggested change, it does not appear that Ms. Garlinghouse was aware of the current litigation regarding the fees which had been in progress for approximately 5 years. Thus, the evidence before the Court indicates that Access did not alter its con- duct in response to the litigation or as part of any litigation strategy, which is one concern that has been expressed by the Supreme Court when determining whether voluntary cessation of an activity renders a case moot. See City of Erie, 529 U.S. at 288 (“Our interest in preventing litigants from attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from review further counsels — against a finding of mootness here.”’). Finally, Plaintiffs have not provided any evidence which contradicts Ac- cess’s claim that it will never reinstate the fees in question. However, it is Access that “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” FOE, 528 U.S. at 190. * The fees were not actually eliminated until some time in 1998. Defendant’s Exhibit 28 submitted at the bench trial shows receipts for non-local broadcast fees that were collected as late as March 11, 1998. Appendix 12 While it is a close call, the Court does not believe that Access has met its heavy burden in this case. Unlike the cases where an outside force is acting to prevent reoccur- rence of the challenged activity, see, e.g., AT&T Communs. v. City of Austin, 235 F.3d 241, 243 (5th Cir. 2000) (find- ing case moot where intervening state law prohibited chal- lenged municipal conduct), the only obstacles to reinstate- ment of the challenged fees are Access’s stated belief that: it is judicially estopped from such reinstatement and Ac- cess’s likely fear of repeated litigation. If Access chose to challenge its own judicial estoppel arguments and risk fur- ther litigation, its board could reinstate the fees at anytime. It may be unlikely that Access will ever reinstate the non-local fees, but that is not quite the same as finding that it would be unreasonable to expect that Access would rein- state them at some point. The evidence before the Court is not sufficient to show that it is absolutely clear that Access could not reasonably be expected to reinstate the fees at some point in the future. Therefore, Access’s voluntary cessation of the allegedly unlawful activity is not enough to render this case moot. Findings of Fact* 1. Access Houston is a non-profit Texas corporation with 501(c)(3) status. 2. In one of its initial information booklets, Access Stated that “the purpose of [Access Houston’s] public ac- > The Court’s findings of fact are based on evidence and testimony presented at the August 31, 2001 bench trial. Appendix 13 cess television channel is to ensure that all residents of Houston can use access resources and facilities on an equi- table basis. We are here to maintain and protect your first amendment rights for the freedom of speech and to assist the citizens of Houston in the production and distribution of access programming in a timely manner.” 3. Access Houston began operating in 1987. 4. Access began charging user fees in 1988. One of these fees was a distribution fee. As used in the fee sched- ule, distribution refers to “the distribution of non-com- mercial public access programs.” Distributing a program is commonly known as “airing” a program. 5. In addition to distribution fees, Access also charged all producers’ fees to use Access’s equipment and facilities during this sare time period. For example, Access charged $150 for someone to attend a teleproduction workshop, $100/day to rent a camcorder kit, and $125/hour to rent an online edit suite. 6. The program distribution fee charged in 1988 was $75 for non-locally produced programs submitted by indi- viduals and $100 for non-locally produced programs sub- mitted by organizations. There was no charge for distribu- ® While technically Access charged both local and non- local producers the same fees for renting equipment and studio space, if a producer had used the production equip- ment and facilities that were located in Houston for at least 50% of their work, it would make the production a locally produced program regardless of where the actual producer resided. Thus, by nature of using the equipment, almost every user becomes a local producer. Appendix 14 tion of locally-produced programs. 7. The program distribution fee amounts remained the same from 1988 until at least 1993. 8. Access charged dis- tribution fees for non-locally produced programs from 1988 until at least March 11, 1998. 9. Access no longer charges anyone a fee for distribut- ing a program, even if it is produced outside of Houston. 10. In 1989, Access distributed approximately 42.5 hours of non-locally produced public access programming. 11. In 1989, under Access’s fee-schedule, the 42.5 hours of non-local programming would have generated between $3,187.50 and $4,250.00 in revenue depending on how many programs qualified for either the individual or organizational rate ($75/hr for individuals, $100/hr for organizations).’ ” The Court can not tell from the documents submitted as evidence in this matter which non-locally produced pro- grams were submitted by individuals, and which of these programs were submitted by organizations. Individual names appear next to many of the entries, but the individ- ual could be a sponsor or contact person for an organiza- tion, or an individual submitting their own production. De- spite Access’s counsel’s assurances at the bench trial that the documents would speak for themselves, there are no demarcations in the documents from the relevant time pe- riod to indicate which programs would have been subject to the individual rate, and which ones would have been subject to the organizational rate. Accordingly, for the rele- vant years, the Court has calculated the minimum and max- imum amounts that could have been charged if all the pro- Appendix 15 12. In 1990, Access distributed approximately 54.5 hours of non-locally produced public access programming. 13. In 1990, under Access’s fee schedule, the 54.5 hours-of-non-local programming would have generated between $4,087.50 and $5,450.00 in revenue. 14. In 1991, Access distributed approximately 67 hours of non-locally produced public access programming. 15. In 1991, under Access’s fee schedule, the 67 hours of non-local programming would have generated between $5,025.00 and $6,700.00 in revenue. 16. In 1992, Access distributed approximately 59.5 hours of non-locally produced public access programming. 17. In 1992, under Access’s fee schedule, the 59.5 hours of non-local programming would have generated between $4,462.50 and $5,950.00 in revenue. 18. From January 1, 1993 until March 15, 1993, Access distributed approximately 7 hours of non-locally produced public access programming. Def.’s Ex. 27. 19. From January 1, 1993 until March 15, 1993, under Access’s fee schedule, the 7 hours of non-local program- ming would have generated between $525 and $700 in revenue. 20. Access did collect at least some of the fees it charged for distributing non-locally produced programs. 21. Access did not collect all of the non-local distribu- tion fees that it charged. In particular, Access never col- lected any fees from N-TV for the times Access aired grams were either all subject to the lower, individual rate, or all subject to the higher, organizational rate. Appendix 16 N-TV’s non- locally produced program “Airlink.” There is no evidence before the Court that Access waived or other- wise did not actually collect the distribution fees it charged for any other non-locally produced programs during the relevant years. 22. Non-local distribution fees were included in the category of “user fees” on some financial statements, such as the Income Statements for the years ending June 30, 1991 and 1992. The non-local distribution fees were listed as separate “distribution” income or “distribution fees” in other financial statements, such as the budget sheets and the profit & loss statements. 23. Access’s budget for fiscal year 1990-91, under the category of “Charges for Services,” forecast income of $500/month from “Distribution” for a total projected in- come of $6,000 from distribution fees in FY90-91. 24. Access’s fiscal year 1990-91 budget sheet lists the following sources of income under the category of “Charges for Services”: distribution, duplication, work- shops, friends of AHCC, special events, and underwriting. 25. Access’s budget for fiscal year 1991-92, under the category of “Fees for Services,” forecast income of$500/month from “Distribution” for a total projected income of $6,000 from distribution fees in FY91-92. 26. Access’s fiscal year 1991-92 budget sheet lists the following sources of income under the category of ‘ ’Fees for Services”: distribution, duplication, workshops, equip- ment, talk shows, and underwriting. The categories of “equipment” and “talk shows” have replaced the FY90-9 1 categories of ‘ ’friends of AHCC” and “special events.” 27. Access’s budget for fiscal year 1992-93, under the category of “Fees for Services,” forecast income of Appendix 17 $637/month from “Distribution” for a total projected in- come of $7,644 from distribution fees in FY92-93. 28. Access’s fiscal year 1992-93 budget sheet lists the following sources of income under the category of “Fees for Services”: distribution, duplication, workshops, equip- ment, talk shows, and underwriting. These are the same categories as those listed in the FY91-92 budget. 29. Revenues generated from user fees, whether non-local distribution fees or video equipment rental fees, went into an unrestricted, general fund. 30. In fiscal year 1991-92, Access’s total income from collected user fees was $48,464.° 31. In fiscal year 1992-93, Access’s total income from collected user fees was $40,552. 32. In fiscal year 1993-94, Access’s total income from collected user fees was $46,199. 33. Access collected $862.50 from distribution fees for the month of July 1993. 34. From July 1,1997 until March 11, 1998, Access collected $6,870 from non-local broadcast fees. * There is no evidence directly indicating what portion of the “user fees” collected by Access were distribution fees for non-locally produced programs. However, the dis- tribution fees did comprise some portion of the user fees. The number of hours that non-locally produced programs aired in conjunction with the budget forecasts for income from the distribution fees provide indirect evidence of what portion of the user fees was derived from distribution fees. i A i i Appendix 18 35. In fiscal year 1991-92, Access generated $563,022 in revenues and had $621,734 in expenses. This resuited in a net loss of $58,712 for 199]. 36. In fiscal year 1992-93, Access generated $658,516 in revenues and had $634,586 in expenses. [his resulted in a net profit of $23,930 for 1992. 37. In fiscal year 1993-94, Access generated $594,818 and expenses 0f$636,691. This resulted in a total loss of$41,873 for 1993. 38. Access received a portion of its funding from fees paid by Houston cable subscribers to the cable company, which would in turn pay franchise fees to the C ity of Hous- ton. The City of Houston then provided money to Access from the franchise fees. 39. In February 1987, Access was expecting a 1989 budget shortfall of $350,000 if no additional revenue sources were found. 40. Access’s Executive Director told the board of direc- tors in April 1987 that the City of Houston funding would be inadequate to sustain Access’s operations, even for the next few years. 41. Access’s Executive Director reported to the board of directors in August 1987 that Access only had enough funds for another 3 to 4 months. 42. Access’s board of directors discussed user fee is- sues at its April 1988 meeting, and the tension between charging enough to generate sufficient revenue to ensure Access’s survival while still making sufficient equipment and facilities available to the residents of Houston free of charge. 43. As of November 1989, Access was 11% below the forecasted revenues for the year, but staff reduction had Appendix 19 reduced expenses. 44. In February 1990, Access’s revenues were still be- iow the revenues forecast in the budget, but Access’s Ex- ecutive Director felt that the recently received $14,000 grant from a medical center would help to ease the situa- tion. 45. In April 1990, Access’s revenues were still below the revenues forecast in the budget. 46. Access’s fiscal year 1990-91 budget anticipated a loss of approximately $104,000 for the year. 47. In June 1990, the ED suggested serious budget cuts to be able to afford an additional salaried fund raising posi- tion in an attempt to solve the revenue problems being faced by Access. By way of example, the suggested cuts included cutting the postage budget from $8,400 to $4,400, cutting the printing budget from $7,404 to $4,404, cutting the promotion budget from $27,852 to $852, cutting the travel and training budget from $7,600 to $3,600, and cut- ting the education and training budget from $4,081 to $2,081. 48. In August 1990, Access’s equipment maintenance costs, as well as demand for equipment and facilities, were increasing. 49. In December 1990, there were 300 to 400 active public access prograrnming producers utilizing Access Houston. 50. In December 1990, Access Houston had reached its maximum capability to serve the public, based on available equipment and staff. 51. Increased public use of Access facilities in 1990 led to an increase in repair costs for equipment for the next year. Appendix 20 52. Access’s fiscal year 1991-92 budget anticipated a loss of approximately $107,000 for the year. 53. Access’s board was and is still concerned about a “snowball effect” if they fail to provide a certain level of services. If Access fails to offer a services of a certain quality level, then no one will want to use the services and fewer users leads to even lower quality levels in the future. 54. In May 1991, Access’s Executive Director ap- proached the board about budgeting in $5,000 for upgrades to the computer system and $50,000 for new production equipment to help keep Access current. 55. Access’s board of directors regarded a $5,000 ex- penditure as a significant expenditure for Access Houston. 56. In May 1991, the board of Access Houston dis- cussed eliminating a survey which cost Access $6,000 to reduce expenses. The board decided to continue to utilize the survey despite the expense because they considered it “crucial.” 57. Access’s fiscal year 1992-93 budget anticipated a loss of approximately $62,000 for the year. 58. Auditors expressed “substantial doubt” about Ac- cess’s ability to continue as a going concern in September 1993. 59. Access had cash flow problems during the early 1990’s. When the City did not pay Access on time, under- writing and user fees were the two primary sources of rev- enue available to Access. 60. Underwriting funds were difficult for Access to obtain, at least in part because corporations were unwilling to associate themselves with some of the programming aired on Access. | 61. Access’s board felt that user fees were useful dur- Appendix 21 ing times of cash flow problems, and that the cash gener- ated by user fees was often “critically important” to Access in the late 80’s and early 90’s, especially with regard to equipment costs. 62. Currently, Access considers $30,000 in either in- come or expenses to be significant to its operation. 63. In December 1990, Access’s Executive Director reported to the board of directors that the average public access program “cost” $294.’ 64. Access never turned down a producer seeking to air a program during the relevant time period due to scarcity of air space. 65. At the time of the bench trial, Access had a budget of approximately $900,000, with $700,000 of that being supplied by the City of Houston. Conclusions of Law The Fifth Circuit has issued instructions on the stan- dards that govern the Court’s current inquiry: “Even a content-neutral regulation of speech on a public forum must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communica- tion.” [Hays County Guardian v. Supple, 969 F.2d 111,118 (Sth Cir. 1992).] The burden is on Access to show that the fee requirement is narrowly tai- 9 It is not clear whether the Executive Director was referring to the cost to a producer, or to Access. Appendix 22 lored to protect the identified interests. See id. at 119. A regulation is narrowly tailored “when it does not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.” [Jd. at 118 (quoting Ward v. Rock A- gainst Racism, 491 U.S. 781, 799 (1989))]. In other words, Access must show that the fee re- quirement promotes a substantial governmental interest that would be achieved less effectively absent the regulation. [See United States v. Albert- ini, 472 U.S. 675,689 (1985); Chicago Cable Communications v. Chicago Cable Comm ‘n, 879 F.2d 1540, 1550 (7th Cir. 1989)]. Horton, 179 F .3d at 194. As the Fifth Circuit has already found that the promotion of , ‘localism” in the context of this case is an important government interest, see id. at 295, Access’s only burden is to show that the fee require- ment was “narrowly tailored” to protect the interests of localism. Access can meet this burden if it demonstrates that the fee rule does not burden substantially more speech than is necessary to further Access’s legitimate interest in promoting localism, see id. at 194; Turner Broad. Sys. v. FCC, 520 U.S. 180, 213-14 (1997), or if it demonstrates that localism would have been promoted less effectively absent the fee requirement, see Horton, 179 F.3d at 194; Turner Broad. Sys, 520 U.S. at 214. The Fifth Circuit and Plaintiffs both agree with Access that promoting localism is an important and/or beneficial interest for Access to pursue. Since its inception, Access has had difficulty generating sufficient revenue to pursue Appendix 23 this important interest. More specifically, Access has had difficulty generating sufficient revenue to keep its doors open to pursue any goal. At a minimum, Access has to remain open in order to allow anyone, local or non-local, to air a program on a Houston public access channel. As explained by Access’s Executive Director Patricia Garling- house at the bench trial, Access also needs to maintain a certain level of quality in the facilities and services it offers the public in order to remain a viable, operating entity.'° Thus, in order to remain open, Access needs to be able to fund not only the bare minimum of necessities, but also to fund the salaries of knowledgeable staff and to fund cur- rent equipment updates and purchases. From its start in 1987 through the relevant years in the early 1990's, Ac- cess’s financial decisions reflect its attempts to offer the best services it could on a very limited budget. Access of- ten exceeded its annual budget during this time period and was depleting its existing bank funds in order to offer the minimal quality level it felt the public required. During these initial years, Access’s main source of rev- enue was grant money from the City of Houston. The grant money came from franchise fees paid by the local cable 10 This is the snowball effect mentioned above. If Ac- cess fails to provide an acceptable level of quality, then - fewer people will use the services and Access will suffer even greater income losses in the future, which in turn leads to lower.quality, which leads to even fewer users, etc. This continues until Access is forced to shut down for lack of funding and/or failure to serve its mission. Appendix 24 company to the City of Houston. Houston cable subscribers paid fees to the cable company that funded the franchise fee payments. Therefore, Access derived the bulk of its revenues from money paid by Houston residents. Access also derived revenue from some corporate un- derwriting, but had difficulty obtaining any significant corporate funding. Access’s other primary source of reve- nue during this time period was the revenue derived from user fees, including distribution fees for airing non-locally produced programming. Access was often working on a tight margin and all of the sources of revenue were consid- ered important for keeping Access’s doors open. Faced with such narrow margins and the reality of de- pleting its only savings fund, the revenue generated by the non-locally produced program distribution fees did aid Access in staying open and providing decent services and facilities to the public. Access received anywhere from about $4000 to $7000 in revenues from these non-local fees. During this same time period, a member of Access’s board testified that $5000 was considered a “significant” expenditure. His testimony was corroborated by minutes from a 1991 board meeting which indicated that the board debated whether or not to continue to pay for a $6,000 sur- vey that it considered crucial, because $6,000 was an ex- pense that was significant enough that it needed to be de- bated by the board of directors. Under such economic con- ditions, revenue in the $4000 - $7000 range would be sig- nificant to Access. The nature of public access programming is such that Appendix 25 - the only “cost” for airing any particular program is the por- tion of overhead that can be attributed to any given pro- gram. Houston did not have a problem with sufficient pub- lic access channel air time during the years in question. Rather, witnesses for both sides testified that no producer was ever denied air time due to a scarcity of air time. Given an adequate supply of air time, it is tempting to con- clude that it “cost” Access nothing to air any given pro- gram. If Access had sufficient revenues to pay its over- head, keep its equipment updated, and staff paid, this would be true. However, the reality was that Access lacked sufficient revenues to pay its entire staff or to keep its equipment as current as the public demanded. Therefore, while an additional program did not add to Access’s ex- penses, a portion of Access’s general expenses had to be attributed to each program aired until Access reached the magical point where its general expenses had been met. The airtime scarcity faced by Access in this situation was not the scarcity of a particular time slot, but the potential scarcity of any airtime for anyone if Access went under for lack of funding. Instead of focusing on the scarcity of air- time, or lack thereof, the appropriate focus is on the scar- city of resources that go into putting any given program on the air. This often included transferring a program to the proper format, which meant equipment use, but always included staff to place the program on the air. Thus, Ac- cess’s scarcity of staff resources meant that the available staff time to assist in airing programs was rationed. Not only did the revenues generated by the distribution fees help to prevent an overall scarcity of air time and ease the scarcity of staff time, but they did help “reimburse Ac- Appendix 26 cess’s costs of airing non-locally-produced programs.” Horton, 179 F 3d at 196. As stated above, the only way to assess Access’s costs for airing any program is to attribute a proportionate amount of Access’s overall costs to each program aired. Houston residents already contributed to paying Access’s overall costs with their cable subscription fees. Furthermore, local producers also helped to contrib- ute income to Access in the form of user fees paid to use the equipment and to take Access’s workshops. The only contribution made by non-local producers was the distribu- tion fee.'' Without the fee, they would have contributed nothing to off-setting Access’s costs in keeping its doors and air open. Admittedly, a Houston resident who did not Subscribe to cable and did not use Access’s facilities or services, could air a tape without contributing any income to help reimburse Access’s costs in airing his or her pro- gram. However, in order to be narrowly tailored, a fee does not have to an exact fit as long the fee’s burden is not sub- stantially broader than necessary to achieve the goal of promoting localism. See Ward v. Rock against Racism, 491 U.S. 781,798 (1989). Even though some Houston users may benefit from Access without contributing anything does not mean the distribution fee is too heavy a burden to '' While non-local producers were welcome to come to Houston and use Access’s equipment, as discussed above, such a move would often convert the producer from a non-local producer into a local producer. Once the program was produced locally, the producer’s program would not be subject to the non-locally produced program distribution fees. Appendix 27 - impose on non-local producers in an attempt to have them contribute something to the service they are utilizing. The only burden the distribution fees place on the expression of speech is a minimal fee that is directly related to the amount of airtime the producer receives. It is not an arbi- trary fee, but is directly correlated to the benefits a pro- ducer derives from Access. To place this minimal fee bur- den on a category of persons that otherwise does not con- tribute in any fashion to the costs of keeping public access airtime available is a reasonable way to help reimburse Ac- cess’s general costs of keeping the facilities and channels open to the public. Thus, it appears that the fees paid by non-local producers to distribute their programs to the Houston airways not only helped to off-set Access’s costs attributable to airing them, but did so without placing an arbitrary burden on the non-local producer. The Fifth Circuit also suggested that Access could meet its burden of showing that the fee was narrowly tailored by showing that the revenue from the distribution fees made “any realistic dent in the costs borne by cable subscribers for the production facilities.” Horton, 179 F .3d at 196. The parties spent much time at the bench trial discussing whether the fees made such a “realistic dent.” Initially, the Court is perplexed by how to treat this instruction. In order to find that the revenues made a “realistic dent” in Ac- cess’s costs, it would be necessary for Access to show that it received more than a minimal amount of revenue from the fees. In order to receive such a significant amount, Ac- cess would either have to have encouraged many non-local producers to air their programs on Access, and thus pay the fee, or Access would have had to charge more per hour for _ EE Appendix 28 a non-local producer to air a program. The first option in- terferes with Access’s stated goal of providing a forum-for the residents of Houston to voice their opinions by encour- aging the voice of non-Houstonians to fill Access’s air- time. The second option places an even greater burden on free speech by forcing producers to pay more per hour of airtime. If Access had charged $1000 per hour instead of $100, the revenues would have been greater for the pro- grams that actually aired, but the higher cost may have deterred some non-local producers from paying to air their programs. While Access may not have been seeking to promote the voices of non-local producers, neither did it wish to chill their messages. Rather, Access simply sought to have a category of users, that otherwise did not contrib- ute anything to offset Access’s costs in providing airtime, contribute to Access’s scanty income so that Access could provide services for future producers and promote localism by providing a forum for the residents of Houston to voice their viewpoints. Recognizing that the First Amendment would not be served by having Access charge non-local producers more, the Court assumes that the Fifth Circuit was not actually looking for Access to show that the fee revenues made a dent in the Access’s total annual costs of running the pro- _ duction facilities, but just that Access was receiving some benefit that justified the burden of imposing the fees. Showing that Access was receiving enough of a benefit to qualify as a “realistic dent” would support a finding of a reasonable fit between the goal, paying the overwhelming costs of keeping Access open to give Houston residents a forum to voice their local concerns and opinions, and the Appendix 29 regulation, a $75 or $100 charge for airing non-locally produced programs. In other words, the “realistic dent” is a way for Access to show that it did not burden substan- tially more speech than was necessary to achieve its goal. See Turner Broad. Sys., 520 USS. at 213-14. Access has met its burden of showing that the fees did not burden substantially more speech than was necessary to help promote localism. As discussed above, Access needed revenue to achieve its goals of staying open to pro- mote localism. Access chose to charge local producers user fees, and to charge the only class of persons that was not otherwise conceivably contributing any revenue, non-local producers, a distribution fee. This is burden on the speech of the non-local producers. However, Access was so des- perately in need of funds that it needed to burden them to a certain degree to achieve its goal. Access chose an amount that was consistent with the amounts it charged non-local producers to use its equipment and facilities. The amount was large enough to generate some much needed revenue. The revenue went into a general fund that paid for such things as staff salaries and the “crucial” $6,000 sur- vey the board wanted in 1991. However, the amount of the fee was also small enough that most organizations and in- dividuals should be able to afford it, which minimizes the amount of speech ultimately restricted by the existence of the fee. If Access had charged less, the benefits Access derived from the amount may not have been worth the Appendix 30 slight burden the fee placed on non-local producers. '” '? Access may have still been able to derive a benefit if it had only charged individuals and organizations $50/hour and $75/hour respectively, rather than $75/hour and $100/hour. However, as the Fifth Circuit has already found that Access’s fee was a content-neutral restriction, Access does not need to show that its fee system was the least restrictive means available to achieve its goal of pro- moting localism. See City of Erie v. Pap’s A.M., 529 U.S. 277, 301-02 (2000) (finding that a regulation need not be the least restrictive alternative to be considered narrowly tailored); Turner Broad. Sys., 520 U.S. at 217-18 (same); Ward v. Rock against Racism, 491 U.S. 781, 798 (1989) (same). It is “well established” that when the test is whether a regulation is “narrowly tailored,” “a regulation’s validity does not turn on a judge’s agreement with the re- sponsible decisionmaker concerning the most appropriate method for promoting significant government interests.” Turner Broad. Sys., 520 U.S. at 218. Thus, even if slightly lower fees would have generated benefits for Access while imposing less of a burden on speech, it is not the Court’s place to make such judgments. As long as the fees actually charged did not burden substantially more speech than nec- essary, they do not violate the First Amendment even if they were either a little higher or lower than necessary. See Ward v. Rock against Racism, 491 U.S. at 800 (“So long as the means chosen are not substantially broader than neces- sary to achieve the government’s interest, however, the regulation will not be invalid simply because a court con- cludes that the government’s interest could be adequately .«pAnnenslix 31 However, given the amount actually charged by Access, the burden on the speech of non-local producers was still minimal, but Access derived a notable benefit. The signifi- cance of this benefit is sufficient to show that the revenue generated made a “realistic dent,” especially when consid- ered in relation to the moderate burden being imposed. _In addition to demonstrating that the fee rule does not burden substantially more speech than is necessary to fur- ther Access’s legitimate interest in promoting localism in the ways discussed above, Access can show that the fee requirement was “narrowly tailored” if it demonstrates that localism would have been promoted less effectively absent the fee requirement. It does not appear from the evidence before the Court that Access would have had to stop oper- ating in any given year if it had not charged the non-local distribution fees. However, it is not necessary for Access to show that without the revenue from non-local fees it would not have been able to function at all, only that it would have less effectively served its function of providing production facilities and services to the residents of Hous- ton seeking to express their views. While Access would have found a way to continue to operate without the type of sums in question, it would have operated less effec- tively. Access was already operating on a very tight .bud- get and it was only offering the bare minimum of the types and quality of services it felt the public required. Any extra revenue of the amounts generated by the fees helped to provide, for example, crucial surveys, or necessary com- served by some less-speech-restrictive alternative.”’). Appendix 32 puter upgrades, or to contribute to salaries for necessary employees. If these fees had not generated that revenue, one of those expenses, or some similar expense, would have been cut from the budget. Without the computer up- grade or the surveyor quality employees, Access would have been less effective at providing a forum for the resi- dents of Houston to express their views and concerns. Thus, Access has met its burden of showing that its legiti- mate interest, promoting localism, would have been achieved less effectively absent the fee requirement. Accordingly, Access has met its burden to show that the rule imposing distribution fees for non-locally pro- duced programs was narrowly tailored to serve its legiti- mate interest in promoting localism. Conclusion For the reason given above, the Court will enter judg- ment in favor of Access in an order entered on even date herewith. It is so ORDERED. Signed this 31st day of March, 2003. JOHN D. RAINEY UNITED STATES DISTRICT JUDGE Appendix 33 APPENDIX D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-20031 ROBERT HORTON, NATIONALIST TELEVISION, a Texas Non-Profit Corporation; and BARRY HACKNEY, Plaintiffs-Appellants, versus CITY OF HOUSTON, TEXAS and ACCESS HOUSTON CABLE CORPORATION, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas June 18, 1999 Before KING, Chief Judge, JOLLY, and JONES, Circuit Judges. EDITH H. JONES, Circuit Judge: At issue in this appeal is whether Access Houston Ca- Appendix 34 ble Corporation (“Access”), a “PEG” cable channel,’ can, consistent with the First Amendment, charge a fee to ca- ble-cast programs nc “locally produced” in and around Houston, Texas. We conclude that Access Houston’s fee requirement is a content-neutral regulation which imple- ments a significant governmental interest in promoting localism, but Access has not met its burden of proving that the fee is narrowly tailored to serve that interest. We there- fore reverse the grant of summary judgment and remand for further proceedings. BACKGROUND The City of Houston granted a cable franchise to Warner Cable Communications (“Warner”) that required Warner to designate at least four PEG channels for the city’s benefit. Houston then engaged Access to manage the channels, including a public access channel? Access is not a typical cable channel: It does not operate for profit, it does not have an editorial board that selects program- ming for cable-cast, and it does not sell advertising space. ' PEG channels are those reserved for public, educa- tional or governmental use by the municipal franchise agreement with a cable operator. See 47 U.S.C. § 531 and 53 1(e). ? Under the franchise agreement, the City of Houston can require Warner to make available an additional four cable channels if certain conditions are met. * That Access is a state actor is undisputed on appeal. Appendix 35 Instead, Access’s programming space is open to any indi- vidual or organization who wishes to televise constitution- ally protected speech. Access neither produces programs nor broadcasts commercial programs. To promote the orig- inal programming on which it relies, Access offers (for a nominal fee) video cameras and other production equip- ment, training workshops, studio space and other Services. Access touts that it will broadcast any non-commercial program as long as the program engages in constitutionally ‘protected speech and complies with various rules designed to allocate air time among the programmers. Access em- ployees do not pre-screen submitted programs to determine whether they comply with the non-commercial speech rule or the First Amendment; instead, Access requires program providers to accept liability for the content of their pro- grams by signing a Program Contract before the program will be aired.’ 4 Pursuant to Rule 2.A-5, all program providers who wish to schedule broadcast time with Access must first sign a Program Contract. The Rule states that, 2.A-5 PROGRAM CONTRACT AND RESPONSI- BILITY: Before access programs are scheduled for cable-cast, the access program provider must sign a Program Contract which holds the program pro- vider liable for content of the program and pay all applicable fees. In signing the Program Contract, Appendix 36 At the time this dispute arose, Access sought to en- courage programs “that reflect[] the activities, culture, con- cerns, and interests of the citizens of Houston and []pro- mote a free exchange of ideas, information and understand- ing.” To fulfill its contractual obligation with the City, Access's Board of Directors adopted a rule, which has been in effect since 1988, providing for “locally produced” programs to be broadcast free of charge. To qualify as a “locally produced program,” at least 50 percent of the pro- gram must have been shot within the Houston Standard Metropolitan Statistical Area. Programs that do not comply with the “locally produced” rule are assessed a fee: indi- viduals who submit non-local programs must pay $75 for each hour of programming, while organizations are charged $100 per hour. Because Access does not pre- screen submitted programs, it cannot initially determine whether a program complies with the rule. Access relies on each program provider voluntarily to disclose whether the submitted program was locally produced. the program provider agrees in writing that his or her program does not include any form of “consti- tutionaliy unprotected speech.” > Access Houston ByLaws Art. II] (1986). After the events in this case, in its 1994 contract with the City of Houston, the requirement to support localism became more explicit: “a minimum of 51 percent of the total hours pro- grammed on the Access channel shall be locally produced in the Houston metropolitan area.” Appen. x 37 In March 1992, Appellant Nationalist Television (“N-TV”), as agent for Houston resident appellant Robert Horton, submitted a 30-minute program for cable-cast enti- tled Airlink.’ After a month had passed and the program had not been cable-cast, N-TV wrote to the Houston City Attomey’s office demanding that Access immediately ca- ble-cast Airlink. The City Attorney replied that Access operates independently of the City and that Houston cannot require Access to broadcast Airlink. In addition, N-TV was informed that, according to Access, N-TV had not com- plied with the procedural requirements necessary to broad- cast Airlink and that N-TV should directly contact Access to complete the application process. Despite this notifica- tion and the receipt of a complete copy of the Access pro- cedural rules, N-TV continued to complain to the Houston City Attorney’s Office rather than to Access. Months later, N-TV turned to Access and learned that it, like all other program providers, must sign a Program Contract. Two months more passed, N-TV finally signed the requested Program Contract, and Access began cable-casting Airlink. Airlink was produced at a studio in Mississippi and did not qualify as a “locally produced program.” N-TV was 6 The content of Airlink is described as “pro-majority” in some portions of the record and “white supremacist” in other parts of the record. Appendix 38 thus required to pay the $100 cable-cast fee.’ N-TV refused to pay, arguing that the fee violated the First Amendment, and filed the present lawsuit seeking a declaratory judg- ment, a temporary restraining order, and a permanent in- junction. Ironically, Access began regularly cablecasting Airlink just after the suit was filed, from December 1992 through February 1993. When N-TV refused to pay fees for the three months of programming that had been aired, Airlink was canceled. Immediately after appellants filed suit, the district court held a hearing to rule on appellants’ request for a tempo- rary restraining order (“TRO hearing”). The district court denied the request and offered to set the case for trial. Each party then moved for summary judgment. The court held in favor of Access and the city, ruling that the fee require- ment is a facially valid, content-neutral regulation inciden- tal to free speech under the test articulated in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673 (1968), and that the appellants failed to raise a genuine issue of material fact regarding whether the fee requirement was unconstitu- tional as applied. STANDARD OF REVIEW The standard of review of a summary judgment at the appellate level is de novo. Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and ” Since Airlink was a half-hour program, the $100 fee was prorated, making N-TV liable for $50 per cable-cast. Appendix 39 admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a mat- ter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548 (1986). Under this standard, all fact questions must be viewed in the light most favorable to the non-moving party, and ques- tions of law are reviewed de novo. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (Sth Cir. 1995). DISCUSSION N-TV scatter-guns its First Amendment arguments against the Access fee for non-locally-produced programs. Attacking the fees both facially and as applied, N-TV as- serts that the fee rule grants overbroad, arbitrary discretion to Access administrators, encouraging content-based dis- crimination against programs. More fundamentally, N-TV contends that the fee regulation is an impermissible con- tent-based rule. N-TV also levels equal protection, overbreadth and vagueness challenges to the fees, but these arguments were not raised in the district court and will not be considered here. Fitting the PEG channels into the familiar holes of First Amendment jurisprudence is not easy. The premise of our discussion is that programmers have some kind of First Amendment rights to share the podium at a PEG local ac- cess channel set aside by Houston’s cable franchise con- tract. The Supreme Court has implied that all of the partici- pants in cable television-programmers, cable operators, TV broadcasters, PEG channels -- enjoy free speech rights, but Appendix 40 the limits of those competing and potentially conflicting rights are far from clear. See generally, Pluralism on the Bench: Understanding Denver Area Educational Telecom- munications Consortium v. FC C, 97 Colum. L. Rev. 1182 (1997). The first conundrum relates to the dubious status of PEG channels, which municipalities have the authority to set aside in their cable franchise agreements with cable operators. See 47 U.S.C. § 531(a). In the “must-carry” case, the Supreme Court upheld a federal law requiring cable operators to make available transmission space for local TV broadcasters. Turner Broadcasting System v. FCC, 512 U.S. 622, 114 S. Ct. 2445 (1994). The Court concluded that the “must-carry” provisions are a con- tent-neutral regulation designed, not to force a particular type of speech upon cable operators, but to further the non-speech-related goals of protecting local broadcasters and assuring free TV access to citizens who lack cable connections. The four dissenters in Turner essentially Stated, however, that forced set-aside of PEG channels is a content-related imposition on cable operators, Turner 512 U.S. at 675, 114 S. Ct. at 2476 (O’Conner, J., concur- ring in part and dissenting in part), and the majority deci- sion offers no rationale opposed to such a conclusion. 8 Indeed, the majority emphasized that neither the must-carry rule nor laws and rules presently applicable to broadcasting (e.g. on non-commercial Stations) directs the content of the programs. 7; urner, 512 U.S. at 649-65] , 114 S. Ct. at 2462-63. Appendix 41 Justice Thomas reiterated the PEG constitutionality prob- lem and scholarly discussions of it in the Court’s most re- cent cable decision, only to note that the issue had not been raised. See Denver Area Educ. Telecomm. Consortium v. FCC, _US.__, 116 S. Ct. 2374 (1996). The ultimate fate of PEGs, including Houston’s local access channel, remains in doubt, but is not to be decided in this case. The second conundrum arises from the implicit conces- sion of Access that the local access channel represents a government-owned designated public forum. Nevertheless, the Supreme Court has cautioned that “the public forum doctrine should not be extended ina mechanical way to the very different context of public television-broadcasting.” Arkansas Educ. Television Comm. v. Forbes, __ U.S. _., 118 S. Ct. 1633, at 1639 (1998). In a later cable regulation case, seven justices of the Court either rejected or declined to consider Justice Kennedy’s assertion that a local access channel is a public forum available to citizens under the most exacting constitutional standards. Compare Denver Area, _U.S.at__, 1 16 S. Ct. at 2404-05 (Kennedy, J., concurring in part and dissenting in part), withid. _US. at _,116S.Ct.at 2388-89 (Breyer, J.) (refusing to con- sider public forum doctrine), and id. _US.at____, 116 S. Ct. at 2426-28 (Thomas, J., concurring in the judgment in part and dissenting in part) (PEG channel is not a public forum). If one were either to press the analogy between Access and a classic public television station or to reject the public forum doctrine for local access channels, then Appendix 42 Access would enjoy virtually unfettered programming dis- cretion. Access does not request such latitude, however, so the arguments that Access is not a public forum or is a lim- ited public forum are not before us. The consequence, for First Amendment purposes, of ascribing particular forum (or non-forum) characteristics to Access lies in the strictness of legal scrutiny that will be applied to Access’s fee regulation. Access contends that the regulation is subject to “intermediate scrutiny” because it has nothing to do with the content of programmers’ speech. Turner, 512 U.S. at 642, 114S. Ct. at 2459. N-TV argues and Access concedes that were the regulation con- tent-related, it would be subject to strict scrutiny. Jd. And this dichotomy of regulations has been developed to gov- ern what may be done to limit speech in either a traditional public forum or a designated public forum.’ See 4 Ronald D. Rotunda & John E. Nowak, Treatise on C. onstitutional Law § 20.47 at 310-11 (2d Ed. 1992). Although it is im- possible to state whether a local access channel should be analyzed by reference to the public forum doctrines, the dichotomy of standards seems to apply to broadcast regula- tions. The nub of the parties’ disagreement turns upon ” If Access were, instead, a limited public forum or a nonpublic forum it would be permitted to place reasonable restrictions on the speech of programmers. See Forbes, __ U.S. at__, 118 S. Ct. at 1640-42. But it plainly does not fit in these categories. Appendix 43 whether the fee charged for non-locally produced programs is content-neutral, or, as N-TV would have it, a ruse for influencing the content of programs that will be cable-cast. The Supreme Court has observed that “[dJeciding whether a particular regulation is content based or content neutral is not always a simple task.” Turner, 512 US. at 642, 114 S. Ct. at 2459. Regulations that “by their terms distinguish favored speech from disfavored speech on the basis of ideas or views expressed are content based.” /d. $12 US. at 643, 114 S. Ct. at 2459. Thus, a rule that is applied because of disagreement with a message presented or a rule that has a substantial risk of eliminating certain ideas or viewpoints from the public dialogue are con- tent-based. See id. 512 U.S. at 642, 114 S. Ct. at 2459; Clark v. Community for Creative Non- Violence, 468 U.S. 288, 295, 104 S. Ct. 3065, 3070 (1984). If, on the other hand, the regulation is justified without reference to the content of the speech or serves purposes unrelated to the content, it is a content-neutral regulation, even if it has an incidental effect on some speakers or messages but not others. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754 (1989); Boos v. Barry, 485 US. 312, 320, 108 S. Ct. 1157, 1163 (1988). Finally, this court has noted that government regulations that apply even- handedly to all speakers weigh in favor of finding con- tent-neutrality. See International Soc 'y for Krishna Con- sciousness of New Orleans, Inc. v. Baton Rouge, 876 F.2d 494, 497 (Sth Cir. 1989). We conclude that Access’s fee rule is content-neutral because the rule does not, by its terms, distinguish between Appendix 44 favored speech and disfavored speech. Access does not examine the content or message of submitted programs in determining whether to impose a fee. Compare Frisby v. Schultz, 487 U.S. at 474, 481-82, 108 S. Ct. 2495, at 2501 (1988) (finding that a municipal ordinance prohibiting all picketing near a residence was content-neutral because government did not have to look at the content to deter- mine where picketers can demonstrate), with Boos, 485 U.S. 312, at 318-19, 108 S. Ct. 1157, at 1162 (1988) (find- ing that an ordinance prohibiting demonstrations in front of foreign embassies that are critical of the foreign govern- ment was content based because government necessarily had to review content to determine the legality of the dem- Onstration). Access’s fee regulation is an evenhanded charge on all providers submitting non-locally-produced programming, regardless of the content or viewpoint con- tained in the program. In addition, the fee rule can be justi- fied without referring to the content of any of the submit- ted programs. See Ward, 491 U.S. at 791, 109 S. Ct. at 2754. As discussed infra, Access asserts that the fee rule promotes local ideas and debate and helps fund equipment and training for local producers and the cost of Acvess’s operations. See id.; Boos, 485 U.S. at 320, 108 S. Ct. at 1163. Finally, we rely on a Seventh Circuit case that up- held as content-neutral, albeit before Turner, a Chicago rule requiring locally-produced programs. Chicago Cable Comm. v. Chicago Cable Comm n, 879 F.2d 1540 (7th Cir. 1989). To the extent that Access’s fee rule unabashedly prefers locally-produced programs, we recognize that it is not un- assailable. The dissenters in Turner criticized legislative Appendix 45 preferences for “diversity of viewpoints, for localism, for educational programming . . .” as content-based regula- tions. Turner, 512 U.S. at 675, 114 S. Ct. at 2476. They noted that no matter how praise-worthy the objectives, government may not favor one set of speakers over an- other. See id. 512 U.S. at 677-78, 114 S. Ct. at 2476-77. Only a four-member plurality in Turner directly responded to arguments concerning localism, but the majority opin- ions emphasized the purely economic reasons why Con- gress wanted to support local broadcasters by requiring “must-carry” by cable operators. The non-speech-related basis for the rule made it content-neutral. See id. 512 U.S. at 645, 114S. Ct. at 2461. In this case, one may argue that while the interest in “localism” is furthered by the fee rule, not only is there no direct content regulation, but the fee compensates the citi- zens of Houston in a small way for the costs incurred when non-locally-produced programs air on the Access channel. The fee subsidizes Access and substitutes for the local re- sources that could otherwise be utilized to produce pro- grams. The fee thus has an independent economic basis more closely analogous to the content-neutral must-carry rule than to a purely content-related localism preference. We therefore conclude that the non-locally-produced fee rule is content-neutral. The standard for evaluating the constitutionality of content-neutral regulations was articulated in O’Brien: [A] government regulation is sufficiently justified {{j if it is within the constitutional power of the ee ee ge ee a ee eee oe eee Ce ee Pee i et ee: Appendix 46 Government; [2] if it furthers an important or sub- stantial governmental interest; [3] if the govern- mental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. O'Brien, 391 U.S. at 377, 88 S. Ct. at 1679. As Ac- cess’s fee regulation is on balance 2 content-neutral rule, the third prong of the O’Brien test has been satisfied, and, germane to the first prong, Houston has the power to spon- sor a public access cable channel and raise revenues for its operation. Still at issue are the second and fourth O’Brien stan- dards. “Even a content-neutral regulation of speech on a public forum must be narrowly tailored to serve a signifi- cant government interest and must leave open ample alter- native channels of communication.” Hays County Guard- ian v. Supple, 969 F.2d 111, 118 (Sth Cir. 1992). The bur- den is on Access to show that the fee requirement is nar- rowly tailored to protect the identified interests. See id. at 119. A regulation is narrowly tailored “when it does not ‘burden substantially more speech than is necessary to fur- ther the government’s legitimate interests.’” Jd. at 118 (quoting Ward, 491 U.S. at 799, 109 S. Ct. at 2758). In other words, Access must show that the fee requirement promotes a substantial governmental interest that would be achieved less effectively absent the regulation. See United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 2906 (1985); Chicago Cable, 879 F.2d at 1550. Appendix 47 Access argues that the fee requirement promotes the substantial governmental interest in “localism.” According a to Access, the fee encourages residents to produce pro- grams featuring topics of local concern which in turn en- hances community self-expression and fosters direct com- munication among residents. Since a portion of the reve- nues derived from Houston residents’ cable bills funds Ac- cess’s operations, residents should not have to subsidize non-locally-produced programs.'° Similarly, Access urges that the revenues generated from the fee train local produc- ers, purchase production equipment, and fund the general operations of Access. Finally, encouraging residents to produce local programming increases job opportunities and '0 At the TRO hearing, the executive director for Ac- cess expanded on this theme, testifying that, the residents of the City of Houston, through their cable bills, underwrote the costs of the facilitation that our organization provides of putting the pro- grams together, scheduling them and putting them on the cable system. We’ve never had a problem with where programs come from in terms of con- tent. We frankly don’t care about what the content is. What we were concerned about was it seemed unfair to us that the residents of City of Houston should subsidize programs that were from some- where else and that, if someone wished to use the facilities, that they should contribute to sustaining the organization that had to help facilitate the users of all the programs on the channels. Appendix 48 career development of Houston residents. We agree -- and N-TV does not dispute'' -- that the promotion of “local- ism” in this context is an important governmental interest. See Chicago Cable, 879 F.2d at 1549-50. That Access’s asserted interests are substantial in the abstract does not mean, however, that the fee regulation fulfills them and is narrowly tailored to protect those inter- ests. The fee rule will be considered narrowly tailored if - Access can demonstrate that it does not “burden substan- tially more speech than is necessary to further the govern- ment’s legitimate interests.” Ward, 491 U.S. at 799, 109 S. Ct. at2758. According to Access’s tules, “locally produced programs” are aired free of charge, while “programs pro- duced elsewhere” are charged either $75 or $100 per hour. Access defines local programming as “[a]ny program sub- mitted for cable-cast containing program material of which fifty (SO) percent or greater was shot” within the Houston Standard Metropolitan Statistical Area. Access has failed to demonstrate narrow tailoring of the fee rule as a matter of law. It has not shown that, absent the fee charged to providers of non-local programs, its interest in promoting localism “would be achieved less effec- tively.” Albertini, 472 US. at 689, 105 S. Ct. at 2906. Ac- cess has not provided any evidence linking the amount charged to non-local producers and the promotion of local- '' At oral argument, N-TV agreed that Houston has a substantial interest in promoting localism. Appendix 49 ism. More precisely, Access has not shown the amount of revenue generated from the fee, the number of providers who have been charged the fee, or whether the fees have actually helped purchase equipment, train producers, en- hance community self-expression, or offset amounts under- written by Houston cable subscribers. Access acknowl- edged there is no scarcity of time available for programs, so the fee plays no role in rationing airtime favorably to locally produced programs. Access’s general fee schedule demonstrates the lack of correlation between the amount charged to non-locally produced programs and its stated justification for imposing a fee. Access heavily subsidizes most of the services and equipment it offers to the public. Next to each item listed on the general fee schedule, Access lists the cost of the item, the amount subsidized by Access, and the resulting net cost to the producer.'? Notably, however, the fees charged to program providers for cable-casting their pro- grams are not itemized by actual cost, amount subsidized, and net cost to provider. The general fee schedule merely states that Access airs locally produced programs free of charge, while programs produced elsewhere are charged '2 For example, the actual cost of renting a “Video- Mobile Portable Kit” is $250; however, Access pays $190 of the cost via a grant, leaving the producer liable for only $60. See Access Houston Cable Corporation's Objections to Proposed Order Granting Summary Judgment, Exhibit D (fee schedule effective May 19, 1988). Appendix 50 either $75 or $100 per hour, depending on whether the provider is an individual or organization. Not only is there no evidence how much of the fee charged for non-local- ly-produced programs compensates Access for its ca- ble-casting costs of those programs, but Access’s executive director testified that he had recommended abolition of the fee to the Board of Directors. The inescapable conclusion is that the fee serves no measurable purpose. Because Access has not met its summary judgment burden to sustain the fee, this case must be reversed and remanded. See Turner, 512 US. at 667-68, 114 S. Ct. at 2471-72 (reversed and remanded for further factual devel- opment). On remand, Access should prove how much reve- nue accrues from the fee for non-locally-produced pro- grams, as well as the purposes for which it uses the reve- nue. If the revenue is minimal -- that is, if it fails to ration Scare airtime, to reimburse Access’s costs of airing non-locally-produced programs, or to make any realistic dent in the costs borne by cable subscribers for the produc- tion facilities -- then the district court may conclude that the fee suppresses protected speech without providing any asserted benefits. Further judicial efforts would be avoided, however, if we accept N-TV’s alternative argument that the fee rule confers excessive discretion upon Access’s administrator and permits content-based discrimination. According to N-TV, Access’s own interpretation of the fee rule under- mines the argument that it is narrowly tailored. See Forsyth County v. The Nationalist Movement, 505 U.S. 123, 131, 112 S. Ct. 2395, 2402 (1992) (courts should consider the Appendix 51 government’s interpretation of a challenged regulation when addressing facial challenges). In Forsyth County, the Supreme Court addressed whether a county could constitu- tionally charge a fee to speakers who wished to hold a rally in a traditional public forum. See id. 505 U.S. at 129, 112 S. Ct. at 2400. The Court struck down tke ordinance be- cause it vested too much discretion in thecounty adminis- trator: the administrator could, without objective guidance, determine how much or whether to charg? the demonstra- tors a permit fee of up to $1,000. See id. 505 U.S. at 132-33, 112 S. Ct. at 2402-03. In the present case, the Ex- ecutive Director of Access felt that he could independently determine whether to charge a fee for certain non-local- ly-produced programs. During the TRO “earing, the fol- lowing exchange occurred between Aprellants’ attorney and Access’s Executive Director: Question: What about a guy that stooped by the other day and just happened topick up some of your material and the receptionist was there and I said, “You knew, what if some- body wanted to go up ané get an interview in Dallas with Ross Pot, shoot it up there” and she said, “fhat will be all right?” Would that be olay with you? Answer: _ It would be okay with ne. Question: No charge for that? Answer: Nocharge. Question: Answer: Question: Answer: Appendix 52 Okay. Now, just assume for a moment that here is a tape and we’re showing it and there is Senator Gramm. He’s seated at a desk. There’s books behind him. And he’s sitting there talking about taxes. Every- body is concerned about them these days. Any problem putting that on? No. Okay. Now, let’s say that it’s on the air and one of your staff comes in and says “Mr. Cantrell, you know, I’ve been in Sen- ator Gramm’s office in Washington and I recognize those books. That was filmed in his office in Washington.” No real prob- lem, though? No real problem. Other similar exchanges occurred during the TRO hearing, each one suggesting that Access’s administrator cou!d, at his discretion, make special exceptions to the fee ruie de- pending upon the circumstances presented.'* The discretion '> For instance, in another exchange, Access’s Execu- tive Director testified as follows: Counsel: Let’s say that Mr. Horton comes into your studio and he produces a show right there in your studio every week, Appendix 53 afforded the Executive Director is highlighted by contrast- ing the hypothetical above with one presented to him later during the TRO hearing: Questior’ [Suppose] [h]e’s got a 30-minute show. He comes so close. for 14 minutes he shows free. He goes to Mississippi. He’s over there visiting the headquarters [of N-TV] and everything and the poor fellow is in a car wreck and he broke his leg and he calls you up and says, “I can’t get back to Houston. I’m going to have to shoot this from the hospital bed in Jackson” and he sends you the tape. Is he going to have to pay for that? Answer: Under the Current rules, that would be the case. Counsel: Would you waive that in this case? Answer: Would I waive it? Counsel: Yes Answer: In the grievance procedure, I would recommend that we waive it. I would probably take it upon myself to waive it. Appendix 54 the Houston skyline. Would you let him slide on that without having to pay? Answer: Like I say, we would -- that would bea good issue to discuss in the grievance pro- cedure. Question: You might let it slide? Answer: Well, I don’t think I would let it slide. But if it came up, I think it would be some- thing worth discussing with the board. Access’s response to this troubling amount of appar- ently unguided discretion is that N-TV presented no actual evidence that the fee had been discriminatorily imposed. We agree that, in light of the express objectivity-of the rule, a facial challenge based on standardless discretion lacks merit. The rule, unlike the sliding-scale fee in Forsyth, unequivocally identifies the programs to which it applies and simply does not justify the latitude which the Executive Director hypothesized. Further, lacking any proof that the fee was ever administered discriminatorily to suppress disfavored speech, N-TV’s as-applied challenge must fail. CONCLUSION Much is uncertain about the scope of First Amendment benefits and burdens in the cable industry. The directions presently available to us from the Supreme Court appear to require a standard less than that of strict scrutiny for Ac- Appendix 55 cess’s non-locally-produced fee rule, but they also require attention to the details of intermediate scrutiny. Regula- tions like this one which burden protected speech are not to be rubber-stamped. Based on the foregoing discussion, the case must be reversed and remanded for further factual development. REVERSED and REMANDED. Appendix 56 APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ROBERT HORTON, BARRY HACKNEY, and NATIONALIST TELEVISION, a subsidiary of THE NATIONALIST MOVEMENT, a Texas Nonprofit Corporation, Plaintiffs, A CITY OF HOUSTON, TEXAS, a Texas municipal corporation, and ACCESS HOUSTON CABLE CORPORATION, a Texas corporation, Defendants. CIVIL ACTION NO. H-92-3451 MEMORANDUM OPINION In a previous order, the Court announced its intention to grant summary judgment in favor of Plaintiffs Robert dorton and Nationalist Television. (Docket entry #46). Defendants, the City of Houston and Access Houston Ca- Appendix 57 ble Corporation (“Access Houston”), have had the oppor- tunity to respond. In this opinion, the Court first finds that the City of Houston is not legally responsible for Access Houston’s decision to impose fees and, therefore, is not liable to Plaintiffs for any constitutional violation. Second, the Court concludes that it cannot grant summary judgment on either of the nonconstitutional grounds: (1) that the im- position of mandatory fees was an ultra vires act, or (2) that Access Houston violated the Cable Communications Policy Act. Third, the Court is of the opinion that the Plain- tiffs’ motion for summary judgment on First Amendment grounds should be DENIED because the fee rule is content neutral and survives a facial constitutional challenge under intermediate scrutiny. Finally, as the Court finds that there are no genuine issues of material fact, the Court will GRANT Defendant Access Houston’s motion for summary judgment. 1. Factual and Regulatory Background Robert Horton is a Houston resident who seeks to cablecast a half-hour weekly program called Airlink over Houston cable television channels dedicated to “public, educational, and governmental programming.” (“PEG chan- nels”).! Defendant Access Houston is a corporation char- ' Barry Hackney was joined by Court order as an addi- tional plaintiff on October 9, 1997. He, like Plaintiff Hor- ton, is a member of the Nationalist Movement who seeks the cablecast of Airlink. Appendix 58 tered by Defendant City of Houston for the sole purpose of operating the PEG, or “public access’ channels on all cable systems in Houston. Airlink is produced in Mississippi by Plaintiff Nationalist Television, a subsidiary of the Nation- alist Movement.’ The content of the Airlink show is de- scribed variously as “pro-majority” by Plaintiffs and “white supremacist” elsewhere in the record. See, e. g., Dkt. #4, Ex. X. Plaintiffs allege that Defendants have vio- lated their First Amendment right of free speech by charg- ing them $100.00 per hour to cablecast programming pro- duced outside the Houston Standard Metropolitan Statisti- cal Area. (“SMSA”). Over the course of a calendar year, this mandatory fee would require Nationalist Television to pay roughly $2,600.00 to Access Houston to cablecast the weekly Airlink show. City of Houston Ordinance 93-156, the current fran- chise agreement between the City of Houston and Warner Cable Communications,’ describes in Exhibit B various policies and procedures related to public access program- niing on the Warner Cable system. One subsection of Plaintiff Nationalist Television, a subsidiary of The Nationalist Movement, a Texas nonprofit corporation, was substituted by Court order on October 9, 1997 for the prior Nationalist Television entity (a subsidiary of The Nation- alist Movement, a Mississippi nonprofit corporation). > Warner Cable is one of several franchisees authorized by the City of Houston to cablecast programming to cable subscribers. Appendix 59 these Access Policies and Procedures specifies: G. Production of programming by organizations within the City of Houston will be encouraged. Programming by organizations within the City shall be given scheduling preference over pro- grams produced outside the City. In recognition that the Public, Educational, and Government Access channels are primarily intended to benefit the Houston community by encouraging the production of programming that has local significance, the majority (51% of total hours available which shall be calculated by divid- ing the total number of hours of local program- ming on all Access Channels by the total number of hours of programming), excluding character generated programming, shall be produced by in- dividuals, institutions or organizations from within the City of Houston. An exception may be made for Educational programming that meets commu- nity needs and that is not available from local pro- ducers if such programming is pre-approved and submitted by a local institution or organization. Such exceptions may not be made for more than 5% of total hours available as calculated above. Similarly, the 1994 contract between the City of Hous- ton and Access Houston contains the following require- ments: 2.03. Local Programming. (a) By the end of the q | Appendix 60 first Contract Year, and for all succeeding Con- tract Years, Access Houston shall cablecast a min- imum of 18 hours per day , of eligible program- ming, excluding character-generated program- ming. By the end of the second Contract Year, and for all succeeding Contract Years, a minimum of 51 percent of the total hours programmed on the Access Channel shall be locally produced in the Houston metropolitan area. (b) Access Houston shall make available a mini- mum of 61 hours per week of community interest programming developed by community groups, organizations, and other local institutions. Policies and Procedures shall be established by Access Houston which at a minimum should in- clude the following: ... 7. Production of programming by organizations within the City of Houston will be encouraged. Programming within the City shall be given scheduling preference over programs produced outside the City. The Plaintiffs do not challenge Houston’s strict PEG loca [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1686%3A1. Public record. Not legal advice.