Motion — United States v. Midwest Video Corp.

a aden "Wa 30 ) 1972

"Supreme Court of the United Stats —

~ OcrosgR Tee, 197 -

4°. \ | Ne, 71-506.

re , a .

“Unrrep Sars “ OF ‘Aientca. and Feveray, * Ce.

| _ CoMMUNICATIONS Comanission, —

ag Petitioner,

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ae ° - Mmwest V EO CORPORATION, tee Bites bee

oes ee . Respondent. * .

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’ ON’ PETITION FOR WRIT oF CERTIORARI TO THE UN ITED STATES

courT OF APPEALS FOR THE. EIGHTH | CIRCUIT

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‘MOTION OF THE AMERICAN CIVIL, LIBERTIES ©

UNION: FOR LEAVE TO FILE ‘BRIEF . AMICUS — 4

CURIAE; ‘AND BRIEF AMICUS CURIAE ace

ya toct | Lswaewoz G. Saczp ,

, : ' corr Ross

- Ronazp §. Retcs .

| ; American Civil Liberties"

“7 Be, 8 Union Foundation -

_ | ot gm | 156 Fifth Ave.

ee .- - New ‘York, N. Y: 10010

Attorneys sab Amicus

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bee ree ate eer Tae IE PEE IOE LE SIOOY TE LENE DE GO I ELE ELS, LOO LIT LOE IE NGO

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. Interest of Amicus ee.

_ Question Presented o.......c:.cccccelecseeeceeeeeeeee eee

\ °

The ‘Program Origination Requirement Restricts

“est in Free Expression Upon Whieh the Federal

.~

Pr .

_ Concuusion, :

- : . a

Communications Commission’ s Regulatory Au-

thority ks Founded and by Which That amma aie

Is Limited 2.0.

2a Te Regulatory: Monde of the on Is )

~ Founded Upon and Limited by First Amend-

ment Concerns df Free Expression

-B:: The Program Origination Requirement Dis-

serves the Commission’ S Constitutional and —

Statutory Mandate to: Maximize ° the Oppor-

tronic Media

: petuates Govefnmental Regulation of Con-

« tent in a Medium Where Such Regulation

Is Not J ustified By the ——— of

ri Scarcity :

2. The Program GiisinaGos Requirement Will

: Encourage the Cable: Industry te Restrict

> the Opportunity for Free Expression ease ,

7.8

Rather Than Promotes the Constitutional Inter- -

a © '‘The-Program Origination Paaiccoma! Per- -

tunity for Free Expression Through | the Elec- :

_ APPENDIX . |

Sources on the Pechnologival and Economic Feasi-

- bility of Broad. Band-Communications Systems. ....

res *

“

“TABLE OF Avruorrres —

Cases:

= Amalga: od: Food Employees Union vV. Logas Valley *

Plaza Inc., 391°U.S. 308, 20 L. ed.2d 603 (1968) ...:...

° ‘American Trucking Associations, Inc. v. F. C. C., 377

F.2d 121, 8 R.R.2d 2026 (D.C. Cir. 1966) 0.02... es

Associated Press v. United States, 326 U.S. 1 (1945) ..

—_—_

Cable Vision, Ine. v. KVTV, Inc., 211 F. San. AT (D: C.

_ Idaho 1962), -vac.. and. remanded on other’ grounds,

355 F.2d 398, cert. den. 379 U.S. 989... ise teeeesenseess

Cox v. New Hampshire, 312 U.S: 569, 61 S. Ct. 762

» (1941)

Are roe ewecceccccesesewewoecccowescsceseeees —

Frontier Broadcasting -Co. ve Collier, oy F.C.C. 251}

16 R.R. 1005 oe) vtec Gaatictets seceneeetaneeqneeeenenenaneetes

General Telephone Co. of California v. F.C. C., 413

_ F.2d'390 (D.C. Cir. 1969), cert. den. 396 U.S. 888 ......

General Telephone Co. of: the Southwest v. U. S., ——

: F.2d ——, 22 R.R.2d 2179 . faeccesiets eaciee

Great Lakes Broadcasting Co., 3 F. R. C. re Rep. 32

(1929). maine pied tags ag antes le anawccaese

Grosjean v. American ae 297 U. S. 233 (1936) ....2.......°

Guyot v. Pierce; 372 F.2d 658 (5th Cir. JD Bes

Marsh v. Alabama, 326 U.S. 501 [1946]. nenceenycne

PAGE... *

aoe - , ; r

PAGE

National Broaddesting Co., Ine. v. United ‘States, ‘319 :

. US. 190 (1945) — cca a & . 7°

Paramount Famous Laaky Corp. v. United States, 282

. U.S. 30 (1930) “ne. “iB

Phifadelphia Television Broadcasting. Co. v.: oF C. C.

359 F.2d 282 (1966) ......... 4 o 9

Red Lion atari Co. v. F.C.C, 395 US? § 367

(1969) . - Berertsletsenneeeely 5, 8

United States“v. Paramount Pictures, Ine, 334 US.

_ 181 (19 | f.. 13

’ United States y. Terminal Railroad Ass’n, 294 US. °

"388° (1912) pees a 8

__, University Committee to Bad tic War in ileus Vv.

Gunn, 289 F. Supp:'469 (C.W.D. Tex. 1968), aff:

399 US. 383, 90. 8. oe 2013 (1970)... ‘ és 6

| Constitutional rdtuon

United States Constitution —

- First Amendment Bw siden — 4,5,6,7

Statutes: a. ie

- Communications Act of 1934 a |

47 U.S.C. $151 oe... orem 4

47 U.S.C. §§151 et. seq.. depart se ciepl gs O

47 U.S:C. §$153(b) and (0) <.... Seige (10

AT WS. §§ 200-202 oe cneeen ae ee a)

47 U.S.C. §303(g) ..:........ ane eras 4

NS 006 a ee

iv.

, . 2

ae Sr re | 2 a PAGE

Federal Communications Commission. ?

20: F.C.C.2d -201..........5 | | nn a

Radio Act of 1927 i ue

§4, 44 Stat.§63 eee ates a)

Public Law 632, 69th Congress .... envesanene . 4 -

. Other Authorities :

Notice. of Proposed Rulemaking and Notice pf Inguiry,

15 F.C.C.2d 417 i 9-10

: Rothenberg, -“Consumer’ Sovereignty . and. the Eco-.

_ nomies of TV Programming,” Studies.in Public Com- |

munications (Fall 1962) ..... ee en Oe any Ae

Steiner, “Program Patterns and the Workability of ©

Competition i in Radio Broadcasting,” niet Jour-

- nal of Economies, LXV I (May 1952) .... hs es ee

. “Telastatus Report, ‘4 Broadcasting 63-66 (Desauber 28, - _

1970) i Tectia 7.

> j ‘

‘ : { |

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et

Cr,

e.

. | ¢: . , } a . . - 2 |

- : Supreme Court of the United States’ _

ee _# ‘Ocroner Term, 1971 |

“ No. 71-506 _

~

. 2 ; . —~< — 7 . ‘

Unirep States or America and FEDERAL»

__.CoMMuNIcaTiIons Commission, Lo

| = : . Pétitioner,

_—V— =. _ ,

¢ .2 ‘ : -

: pa ee ae 2

Miwest Viveo CorporaTion, 2

Respondent.

. Fart acog

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

| COURT OF APPEALS FOR THE EIGHTH CIRCUIT

ee

MOTION OF THE AMERICAN CIVIL LIBERTIES ©

UNION TO FILE BRIEF AMICUS CURIAE

The American Civil Liberties Union respectfully moves

for leave to file a brief amicus curiae in this case.

Throughout its 50 year history, the American Civil

Liberties Union has been deeply committéd to the ideal

of free and open expression which is embodied in the

First Amendment to the C8nstitution of the United States. .

For some time it has been ° apparent that, while the _

broadcasting media present great potentia} for the realiza-

tion of this ideal, they have developed in ways which fall

drastically short of a realization of that potential. . _ -

>

<3

_ The advent ‘of cable carrier technology presents a re-

newed opporttnity to create a system of mass communi-

‘ cations available to'all who wish to speak and to all. whé

‘wish to hear. We are deeply concerned that- governmental

involvement in this new. communications technology pro-

‘gmote rather than retard the fruition of such a system. *‘

Our brief is addressed to what we regard:as the disservice

— to this end effectuatéd by the Order of the Federal Com- —

‘munications Commission which is the object of this case.

' For these’ reasons, we respectfully request leave to file

the. within brief amicus curiae.

Respectfully submitted,

; Metvin L. Wor,

. Attorney for M ovants.

. /

s ; — : ; . Sf

Supreme Court af the Arited States

Octane Tame, 197

Z No. 71-506 - a

. : e # ‘ _ ——~ — . > , - é b

|. —_Unrtep States or America. and Feperar id

ee ae ee Communications Commission, |

a -y _' * Petitione Tr,

—V.—

Mipwest Vibe - Conporation, :

mS | Respondent. .

a

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT,

) - BRIEF AMICUS CURIAE

Interest of Amicus

The interest of Amicus is set out.in the preceding motion _ i

for leave to file this brief. —

Question Presented -

7 This, brief is addressed solely to the issue of whether.

the program origination requirement promulgated by the —

Federal Communications Commission in 20 F.C.C.2d 201,

« _ is in furtherance of the Commission’s statutory and con-

stitutional mandate. - ¢ 7 |

?

ya

ARGUMENT

“The Program Origination | Requirement Restricts |

Rather Than Promotes the Constitutional Interest in

Free Expression Upon ‘Which the Federal Communica-

tions Commission’s Regulatory Authority Is F ounded

and by Which That Authority Is Limited.

as Federal Communications ‘Commission Memorandum —

Opinion and Order adopted October 27, 1969, 20 F.C.6.2d

201, requiring program originatjon by cable operators hav- _

ing 3,500-or more subscribers, must be judged in light of

- its tendency to promote or ifthibit exercise of the First

/ Amendment, freedoms ‘of speech and the press. The F.C.C.

~ can not. be permitted te accomplish by indirection, or mis-

apprehension and mistake, what-it is forbidden to accom-

plish directly by the Constitution and by the enabling

legislation (Communications _ Act of 1934, 47 U.S.C. 151, ’

35 et seq. ) to which it owes its existence. ot = at

| —

A The Regulatory didn of the F.C.C. 1s Founded

/ Upon and Limited by: First Amendment Concerns

| of Free Expression.

=

Under Section 326 ‘of the i samimibacons Act of 1934,

47 US.C. §326, the Federal Comnunications Commission

Gg specifically enjoined from adopting or promulgating any :

,. “regulation. or condition which shall interfere with the

right of free speech by means of radio communication.”

Section 303(g) of the same Act, 47 U.S.C. §303( g), affirma-

tively directs the Commission to “ericdurage the larger and |

‘more effective use of radio in the public interest.” And as

this Court stated in Hed Lion Broadcasting Co. v.. FC. CG.

395 U.S. 367 (1969): | ei ig *

s

| ‘5

_ It is the purpose of the First Amendment to pre-

~~. 8erve an uninhibited , market: place of ideas in. which

truth will ultimately prevail rather‘'than to eounte-

nance monopolization -of , tifat. market avhether it- be. —

- by the government itself ora private licensee. » |.

It is’ the right ‘of the public to receive suitable access

«to social, political, esthetic, moral and other ideas and _

experiences which is crucjal here. That right may not —

constitutionally be abridged either by Coffgress or the .

FCC. 395 U.S. at 390. woe

Shortly after its creation with the mandate act in response .

to the public “convenience, ‘interest or necessity” "(Radio

Act of 1927, §4, 44 Stat. §63), the Commission itself de-

clared that the “public interest requires ample play for’

the free and fair. competition. of Opposing ‘views.” Great

Lakes Broadcasting Co., 3 F'R.C. Ann. Rep. 32; 33 (1929).

In. our era, the development and re lation of the elec-

tronic. media have an extraordinarily important impact

upon the Tealization or frustration of’.the concerns’ ad- |

assuimption that the widest possible dissemination of in-

formation fremdiverse and anta onistic sources is essen-—

| publ

tial to the welfare of the public.” Associated Press y..

United States, 326 U8. 1, 20 (1945). They go“... to the

heart ‘of the ‘natural hight of members of an organized

“ society, united for their common good to impartcand ac.

quire information about their common. interests.” Grosjean Sage

v. American Press, 297 U8. 233, 243 ( 1936). alee

.

to the media of Communicationg is esseitial if these con~

. Cerns aré to be realized: . at

‘In colonial and post-revolutionary days, until the ‘advent

of telephonic communication late in the Ninetéenth Cen-

tury, access to the media ’ ‘of communications implied the

freedom to speak to one Mecislors ‘in the local town hall,

or.in the village square.

served as arenas for controversy, and access was guar-

anteed to all “... for the communication of thought and

discussion . of. pablo questions. immemorially. associated .

with resort to public places.” Cox v. New Hamps}ure, 312

US. 569, 61 S. Ct. 762, 765 (1941); see also, Guyot v. |

_. Pierce, 372 F.2d 658, 661 (5th-Cir. 1967), and University .

‘Committee to End the War in Vietnam v. Gunn, 289 F.

Supp. 469, 477 (C.W:D.*Tex., 1968), aff. 399 U.S. 383,

— 90 8. Ct. 2018 (1970). Streets, sidewalks and.other simiJar’

places. “are sO histdrically associated with the exercise of

First Amendment rights that access to them for-the pur-

. pose, of exercising such’ rights cannot constitutionally be

.. denied broadly and absolutely.” Amalgamated Food Em-

; ployees Unigse v. Logan Valley Plaza Inc, 391 U.S. 308,

_ 20 L. ed.2d 603, at 610 (1968) ; see also, — v. Alabama,

326 U.S. 501 (1946). e |

In the Twentieth Onntaier 3 itis apparent that older sige

+; of communication—public speech, newspapers, mail—are |

increasingly inadequate fully to serve the needs of. the ©

American people. .glnamplified ‘public speech ean reach a

few hundred people, but not the millions who. inhabit our

‘cities. and. rural areas. Newspapers and magazines. which

from ‘the middle of the Nineteenth Century until the last

few decades constituted our major media of mass com-. °

munications face ever-increasing diffieulty in maintaining

7 their dtidiences which have in significant nushbers turned.

ese and other areas’ were pre-

Nu;

to radio and television as subatttitiin., The fown halls and

squares of Post-revolutionary America have been largely

replacetl, functionally, by small screens ensconced in’ the -

_ living rooms of most American homes.’ Television today ee

is the cerféral public forum of our people and nation. That |

forum—at least to the extent of governinental involve- .

‘Inent in its ev olution—must be structured to. facilitate the

aims ofthe . First Amendment, beth as 4 matter of indi-

vidual right and of. national necessity. |

B. ‘The Progtam Origination Requirement Diesiteds the

_ Commission’s Constitutional and Statutory Mandate

to Maximize the Opportunity for Free Expression

" Fhneneh the Electronic Media. __. 2

Y) ° ‘ P»

1. The. Rfogram: - Origination Requirement Perpetuates

Governmental Regulation of Content in a Medium”:

‘Where SuclRegilation Is Not Justified by the Exi-

gencies of Scarcity. :

- The history of the - ‘regulation of. retis and nievieiie

broadcastirig i in the United States reflects a concerted effort .

; to achitve the widest and fairest possible use of the limited -:

_ resource known as ‘the electromagnetic. spectrum. RN,

‘Radio Act of 1927 (Public Law 632, 69th Congress) andi oe a

319 U Ss. 190, 214 sien i rete

43

‘clearly reflect this .primary congressional.concern. Judicig

Communications Act of 19384 (47 U.S.C, §§151 et

consideration of the broadcast media hag likewise reflected

_ this, awareness: “[ Broadcast] facilitieS are limited; they

are not available to “all whp may wish to’ use them; the radio °

spectrum simply is not large engugh to accommodate every-

body.”; National Broadcasting Co., Eye. v. United ee

1In excess s of 95% of, Neiseuns homes have access to television.

See, “Telestatus ey ” ne 63-66 (December 28, 2 OD

/ ace See

:

| The. respjt of - the highly restrictive pee. ‘of the

| electromagrietic spectrum upon which the broadcast media

¢ rely has been an acute tensign between the end of minimiz-

ing governmental interference with the scope and content

_ of broadcast media. programming and the end of insuring

some freedom of public access to the necessarily limited-

resources of those media.- Thus, while the F.C.C. has gen-

erally: exercised its regulatory. powers with restraint, it

has engaged in the regulation of program content in order

to insure that those who have been granted monopoly con-

_ trol over various: segments of the public airways do not

completely restrict the access of various persons, groups

or ideas to those airways. .The Fairness Doctrine, of

- course, is a prominent example of-such.a resolution between _

competing aspects of the social interest in free. expression. .

See Red Inon Br oadcasting Co. v. F.€°C., , Supra.

- Cable technology, unlike: radio and televi ision broadcast-

ing, does not carry with it this inherent tension between .

governmental regulation of program. content. and private

‘restriction of program content. While the number ‘of sepa- .

rate radio or television transmissions: which can be dis-

tributed and receiv ed in any given area through the

. medium of the electromagnetic spectrum is drastically

limited by the phenomenon of “interference,” there is no

limit to the number of discreet signals which ean be dis-

: tributed and received, by cable. Thus, in a city like New

_ York—where ‘there are presently only seven television

broadcast channels utilizing the, Very High Frequency

spectrum anda. relatively small number of channels utiliz-

| ing the Ultra High Frequency spectrum. (which has a

“shorter: range and technically inferior signal)—it is tech-_

nically and economically possible to sustain ‘a virtually un-

‘ ¢

9 «soto

’

limited variety of program and information services utiliz-

_ing the low-cost and infinitely: expandable capacity of cable .

transmission.’ If the’ transmission capacity of cable is.

realized to a substantial degree, and if access to that ca-

pacity is not artificially. restricted, free expression will

flourish... . _ '

The place of govefnmental regulation of a medium like

cable is that of insuring ‘capacity appropriate to social

needs and access to that. capapity at reasonable rates by

all interested communicators. In other words, cable sys-

tems cauld and should be regulated as commen carriers.

a

2 “Broadband cable” is compéeed of numerous channels or com-

munications paths of varying frequencies capable pf transmitting -

@F

~~ electrical communications. Because of the wide range of frequencies

available for data transmission,'a single cable can 'carry a variety

of signals for different uses. Among the present uses of. broadband |

_ eable are CATV transmissions, reproduction of documents and pho- ~

tographs, telegraph, telephoto, remote metering and the like. See

American Trucking Associations,-Inc. v. F. C. C., 377 F.2d 121, 8

R.R.2d 2026: (D.C. Cir. 1966). In Akron, Ohio, a cable system with

‘an 82 channel capacity is now in operation. In the appendix to

this brief, your amicus has collected authorities which detait the

economic and technical feasibility of fully articulated cable systems.

* The early, judicially supported view of the Commission was

that “Community Antenna ‘Television” Systems (CATV) were not

common carriers within the meaning ‘of Title II of the Communica-

tions Act, 47 U.S.C. §§201-222. See, e.g., Philadelphia Television -

- Broadcasting Co. v. F. C. C., 359 F.2d 282. (1966). But this view

was predicated upon cable technology in its infancy, and involved

an assessment of “systems generally... . designed to receive a

broadcast television signal at a favorable point of reception . . .

_ where the system’s receiving antenna is situated.” Frontier Broad-

casting: Co. v. Collier, 24 F.C.C. 251, 16 R.R. 1005 (1958). But.

the Commission itself has acknowledged that cable technology’ has

undergone a radical change and requires drastic adjustment of

regulatory perspective. “It now appears” the Commission has

noted, that “cable technology may be on the verge of expanding

system capacity té 20 or-more channels, and that a variety of. new

‘services to the public are envisioned.” Notice of Proposed Rule-

But there i is no need and no justification for governmental

regulation of content in such a medium. Far from.promot- «

ing free expression, the program origination requirement

will inspire its restriction by the cable industry as will be

explained below.

The origination requirement sets a precedent for gov-

ernmental regulation of content in a medium which does

not possess the characteristics which justify such regula-

tion of the brggdeast media. Moreover+if your Amicus is

correct. in/its well-supported belief ‘that the origination re-

quirement will promote the private contraction of the cable

medium—the requirement will indirectly spawn much more

substantial governmental involvement in the content of

‘ cable systems. ee cable industry’ is encouraged to

‘develop along t restricted lines of the broadcast indus-

you the same considerations which: have: prompt detailed

A

making and Notice of Inquiry, 15 F.C.C.2d 417,418. See note 2,

supra. .

. Present ‘cable oe fully justifiea Commission authority to

regulate cable operators as common carriers under Tith . “Com- .

- mon carrier” is defined for purposes of that title as 2, person

engaged as a cémmon carrier for hire, in interstate or foreign

communication by wire or radio.” 47 US. C. §153(b). Persons

engaged i in “radio broadcasting” are excepted from the status of

““ecommon carrier,” but cable carriage is élearly not broadcasting in

this sense, 47 U.S.C. §§153(b) and (0); see Cable Vision, Inc. v.

KVTV, Inc., 211 F. Supp. 47 (D.C. Idaho 1962), vac. and, remanded

on other grounds, 355 F.2d 398, cert. den. 379 U.S. 989.

Ample precedent for treating broadband cable operators as com-

mon carriers is provided by Commission regulation of Telephone

Companies which’ provide cable channel distribution facilities. See

General Telephone bed of California y. F. C. C., 413 F.2d 390

(D.C. Cir. 1969), cemg. den. 396 U.S. 888 and General Telephone

Co. of. the ouih ds U. 8., F.2d ——, 22 R.R.2d 217. |

In the lat er case the Fifth Circuit Court of Appeals expressly re-

. served the question of ‘whether broadband cable services. should 7

_ evolve in a common carrier mode, ” 22 KR. R. 2d at 2181;

‘ .

.

11 . se . rf “a

ECC. involv ement in program content vis-a-vis broadcast- .

ing will come to prevail in the cable field. .

(4.

. 2.° The Program: Ori ation equiemicae Will asoer: :

age thé Cable Indugtry to Restrict the Opportunity for

Free Expression.

- ¢ ,

If the cable industry is required—or ev en permitted—to

enter thesarena of program origination, there will be

powerful oe ea ineentiv es: against its realizing the full

. technological adv ntages of cable as a carrier of -diverse

eontent and myriad edugational and commercial services.’

This sad prognosis‘is ar le by the history of American |

television broadcasting

Television broadéasters | derive’ tnaie revenue from: the :

selling of audiences to sponsors. The larger the audifhee

they can deliver (by virtue. either of presenting partic- —

ularly popular progra ing, or operating in restricted

_ television markets), pe they can demand and. receive

from sponsors who wish to advertise their goods and ser-

vices. If cable carriers are required to enter the field of

programming, they, like television! broadcasters, will geek

‘to preseyyve the largest possible audiences for themselves

in the knowledge that adv ertising sponsors will pay them

at arate reflecting’ thé number of viewers they deliver.

Cable carrieré will be unwilling to expand their carrier —

capacity to meet the demands of others whe the effect of

that expansion will be to reduce the audience for their.

Own programs. The program origination requirement will,

moreover, entail the diversion of cable companies? talent

and capital resources which would otherwise be employed

to the end of increased carriage capacity. Funds and per-

sonnel will be deflected to the acquisitiof of studio space,

theatrical paraphernalia, production staff, and so on. —

12

‘The program origination order of the FCC thus effee-

tively constitutes a mandate to the cable ns 2 to inte-

grate programming and distribution funcféns along the

pattern adopted by. television broadcasters. Not only “will

program-originating cable operators be inspired to restrict

their carrier capacity, they will also be discouraged from

airing independently produced ‘programs of interest to di-

verse segments of their viewing audience. As program-

mers, cable carriers will be in the business of selling audi-

-ences to sponsors at the lowest possible cost to themselves.

They attempt to gain the largest audience for themselves‘,

‘ by seeking to distribute the kinds-of niass entertainment -

programs which can capture it, and they will naturally

seek to maximize their profits: from such programming by

producing their own shows. This diversity-inhibiting effect

ofthe vertical integration of the programming and dis-

tribution functions has been amply ° demonstrated in the .

development of network programming. See, for example,

the FCC Report and Order released on May 7, 1970 (re

Amendment of’ "Part 73 of the Commission’s Rules and

Regulations Dkt. No. 12782), determining that ABC and

_CBS each had important financial interests in more than.

96% of all evening '(6:00-11:00 P.M.) entertainment pro-

gramming, other than feature aes carried on their net- . .

works.

— It is clear that pieeealitn oF the cectaiulitle and dis- .

trihution functions leads to diminished diversity-in pro- -

- * For the tendency of broadcasters to maximize their audiences

by serving modal tastes, see Peter Steiner, “Program Patterns and

the Workability of Competition in Radio Broadcasting,” Quarterly | -

Journal of Economics, LXVI (May 1952) ; Jerome "Rothenberg,

- “Consumer Sovereignty and the Economics of TV Programming,”

Studies in Public Communications (Fall 1962).

os _ or eould tend to diminish it. Thus, in United States vy. Terminal

| ' ~ e : . ry

a Se © ae

gramming as control is concentrated in the hands of those

~ whose primary’ corporate responsibility is to select com-

mercially saleable material which promises to capture the

_ largest possible audience in-each Viewing. hour. Equally — ~~

clear is the fact that access to.the medium ‘of television is

increasihgly denied those program prodiicers who are not

in’ some -way’ affiliated with the distributor. The. anti-

competitive integration of the programming and distribu- 4

tion functions thus tends to deprive’ the public of a rich

diversity of ideas‘and views which could otherwise “be

available to it. 1

¥,

an:

It is worth noting that Anti-Trust legisla oh, designed to pro.

-Ynote the free flow of goods, Services, and idgas; has historically

been concerned not only with those arrange

inhibitgompetition, but also with arrangements which merély ten

nts“ which staal.

Railroad Ass’n., 224 U.S. 883 (1912), the Court refused to sustain

an agreement in the form of a corporate charter. under which six

of twenty-four railroad companies operating in the St. Louis metro--

, politan region maintained exclusive control of the bridge and ferry

‘Toutes out of the city. The Court’s concern at the anti-competitive

potential of the arrangement allowed it to reach this result while

acknowledging that “the proprietary companies have not availed.

themselves of the full measure of their power to impede free com-

petition of outside companies . . . ” 224 U.S. 383, at 389. See also,

Paramount Famous Lasky Corp. v..United States, 282 U.S. 30,

(1930), ‘in which the Court, while noting that the fundamental.

interest protected by the Sherman Anti-Trust Act was that of “the

public in the preservation of competition .. .” denied that the

Act required a showing “that the. challenged arrangement sup-

"presses all competition... .” 282 %.8. 30, at 34.

In United States v. Paramount Pictures Inc., 334 U.S. 131

(1948), the Court was specifically concerned at the anti-competitive

effect of ownership by movie producers in theatres which could |

exhibit their films.. It affirmed the order of the District Court .

under which prodhicers were required to divest themselves of inter-

ests in exhibiting-‘theatres where such interests were prima facie,

. or in intent and effect, anti-competitive.

i, ee *

| 2 a , i . a |

_ CONCLUSION.

The Chinaman: program Pep ination ‘requirement te.

_flects a. regulatory policy which is ‘inconsistent with the |

- nature and potential of emer ging broadband cable. tech-

nology. The requirement will serve to inhibit the potential

" of that technology to provide an important outlet for the

free expression of ideas. For this reason, its issuance was

_without the statutory and constitutional authority of the

Commission, and accordingly, the decision below . should

be affirmed. ;

‘Respectfully submitted,

/

Metvin L. Wor

Lawrence G. Sacer

‘Scorr Ross

Ronatp 8. Reicu

American Civil Liberties

Union Foundation

- 156 Fifth Ave.

oe New York, N. ¥. 10010

Attorneys for Amicus*

* Attorneys for Amicus gratefully acknowledge the assistance of

. Gerald McFarren, who‘is a third year student at the School of Law,

Columbia: University.

APPENDIX: . 2}

“ Sources on the: ‘Teehnological and Economic Feasibility a

- of Broad Band Communications ———— oo bs

1 “Hitches in ‘the Cable” Sidney. W. pan Jr., The

: Nation, July 20, 1970, pp. 41-45, |

2. “Cal le TV Leaps into ‘The Big Time,” Business Week,

_ Special aor: November 22, 1969. - o.

3. “On the Econoniies of Wired City Television,” The

American Economic Review, H. F. Barnett and. KE,

Greenberg, PP. 503- 508.

4, “Public Policy and Emerging | ‘Technology in the

. .Media.” Bruce M. Owen, J.F.K. School of Government, .

. Harvard University, Summer els a , ; 7 ..

| 5. “The Wired Nation,” Ralph Les Smith, The Watton...

Special Issue, May 18, 1970:

6. National Businessman’s Council; Testimony on 6700-A

. in Assembly, N.Y. (An Act... . in relation to the crea- |

tion of a state commission on cable television ...),

July 8, 1970. a ee en

7. “Toward a Modest Experiment in Cable Television,”

_ Stephen. White, - ‘The Public Interest, ; pp. 52-66.

8. A Proposal for Wired City ‘Tetevision,” Harold F... © \&

_ Barnett. and Edward Greenberg, Washington Uni-. :

- wersity Law. Quarterly, Vo. 1968, Ria 1968, NGO.k. > ~

pp. 1- 26. .

10.

f°. U2.

‘Public Ser

16

\

. “Regulation of Community Antenna Television,” Co-

ai lumbia Law Review, Vol. 70, May 1970, No. 5, pp. 837-.

875. »

af F

| Elegtronic: Industries Association - Industrial. Elee-

tronics Division Response to 2CC Docket 18397, part

e

ed

ces:Commission State of. New York, Re- e

_ ‘port of De¢ember 1970 on-“Regulation of Cable Tele-

vision by /the State of New York,” especially at 219.

pp?

V, October 27,1969.° = Ng Ae