WLNY-TV, Inc. v. F.C.C.
| Decision Date | 21 December 1998 |
| Docket Number | Nos. 97-4243,WLNY-T,WRNN-TV,INC,97-4245 and 97-4265,s. 97-4243 |
| Citation | 163 F.3d 137 |
| Parties | 14 Communications Reg. (P&F) 701 ,Associates Limited Partnership and Paxson New York License, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Time Warner Cable of New York City, Time Warner Entertainment-Advance/New House Partnership, Comcast Cablevision, Service Electric Cable TV of New Jersey and Cablevision Systems Corporation, Intervenors. |
| Court | U.S. Court of Appeals — Second Circuit |
Lee H. Simowitz, Washington, DC (Ann K. Ford, Mark A. Cymrot, Theodore N. Stern, Baker & Hostetler, LLP, Washington, DC), for WRNN-TV Associates Limited Partnership; all on the joint brief for Petitioners.
Joel Marcus, Washington, DC (Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, Washington, DC; Joel I. Klein, Assistant Attorney General, Robert B. Nicholson, Robert J. Wiggers, Attorneys, U.S. Department of Justice, Washington, DC, of counsel), for Respondents.
Henk Brands, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, DC; Arthur H. Harding, R. Bruce Beckner, Jill Kleppe McClelland, Debra A. McGuire, Fleischman and Walsh, L.L.P., Washington, DC, for Time Warner Cable of New York and Time Warner Entertainment-Advance/Newhouse Partnership; Frank W. Lloyd, III, Christopher A. Holt, Gregory R. Firehock, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Washington, DC, for Cablevision Systems Corporation; Steven J. Horvitz, Robert N. Walton, Cole, Raywid & Braverman, L.L.P., Washington, DC, for Comcast Cablevision, Inc.; Henry A. Solomon, Haley Bader & Potts P.L.C., Arlington, Virginia, for Service Electric Cable TV of New Jersey; all on the joint brief for Intervenors.
Colby M. May, Washington, DC , filed a brief Amici Curiae on behalf of Tri-State Christian TV, Inc. in support of Appellant WLNY-TV, Inc.
Before: FEINBERG, CARDAMONE, and CABRANES, Circuit Judges.
The petitioners-appellants (petitioners) on this appeal are the owners and operators of broadcast television stations in the greater New York metropolitan area. They are WLNY-TV, Inc., WRNN-TV Associates Limited Partnership, and Paxson New York License, Inc. (Paxson). Respondents are the Federal Communications Commission (FCC or agency) and the United States of America. The intervenors on appeal are all cable television companies: Time Warner Cable of New York City, Time Warner Entertainment-Advance/Newhouse Partnership, Comcast The intervenor cable television companies petitioned the FCC Cable Services Bureau (Bureau) to lift the requirement imposed on them to carry the signal of petitioners' local commercial broadcast television stations. Intervenors succeeded. Petitioners then moved for reconsideration of the Bureau's order before the FCC. The motions for reconsideration were, with several minor exceptions, denied and the FCC adopted by order dated August 11, 1997 the Bureau's order. From this disposition, petitioners have appealed asserting that the FCC misconstrued the purpose of the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act or Act) and denied rights granted them under that Act to have their signals carried by the cable television intervenors. We set out some brief background so that the issue before us can be seen in proper context.
Cablevision, Inc., Service Electric Cable TV of New Jersey, and Cablevision Systems Corporation.
Long gone are the days when American viewers huddled around the family black-and-white TV set equipped with only an antenna to watch Jackie Gleason and Art Carney in "The Honeymooners." Today the television broadcasting industry is dominated by cable service, and numerous channel packages are available to 64.2 million cable subscribers--over 68 percent of television households in America. See Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, 13 F.C.C.R. 1034, 1049-50 (1998) (statistics as of June 1997). Only 23 percent of television households currently receive programming entirely through over-the-air broadcast reception. See id. at 1042.
Because of cable service's tremendous growth, Congress became concerned over the future of local television broadcast stations that are excluded from cable carriage. Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 117 S.Ct. 1174, 1187, 137 L.Ed.2d 369 (1997). For when a household subscribes to cable service, it does not usually maintain an antenna to receive over-the-air signals from noncable stations, and even those households that do keep an antenna rarely switch from cable to the antenna. See id. at ----, 117 S.Ct. at 1201. The reduced viewership of noncable stations makes them less attractive to advertisers that provide the greatest source of their revenues. See id. at ----, 117 S.Ct. at 1191; 1992 Cable Act, Pub.L. No. 102-385 § 2(14), 106 Stat. 1460, 1462 (1992), reprinted in 47 U.S.C. § 521, Congressional Findings and Policy for Pub.L. No. 102-385 (1994). The feared end result is the eventual extinction of these smaller stations as outlets for local programming. Turner, at ----, 117 S.Ct. at 1187.
To avoid such a result, Congress passed the 1992 Cable Act. Reviewing its constitutionality, the Supreme Court noted, "Congress sought to preserve the existing structure of the Nation's broadcast television medium while permitting the concomitant expansion and development of cable television, and, in particular, to ensure that broadcast television remains available as a source of video programming for those without cable." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 652, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). To accomplish that purpose, the statute requires cable operators to carry the signal of local commercial broadcast stations and local noncommercial educational stations. See generally 47 U.S.C. §§ 534, 535 (1994). At the same time, Congress prescribed circumstances when a cable operator may be excused from its obligation to carry the signal of certain stations.
This appeal focuses on the question of whether such circumstances exist with respect to petitioners. We are persuaded that the FCC did not misinterpret the 1992 Cable Act or deny petitioners any rights granted them in that statute. Accordingly, we affirm.
The 1992 Cable Act mandates that "[e]ach cable operator shall carry, on the cable system of that operator, the signals of local commercial television stations ... as provided by this section." 47 U.S.C. § 534(a). A To determine whether a cable operator and a broadcast station are within the same market, Congress defined in the 1992 Cable Act what constitutes a broadcast station's market. See 47 U.S.C. § 534(h)(1)(C)(i) (1994) (amended Feb. 8, 1996). 1 For purposes of this appeal, all parties agree that petitioners' default market under the definition is the New York Arbitron Area of Dominant Influence (ADI), and that intervenors are within this ADI, which includes parts of Connecticut, New Jersey, Pennsylvania, and New York, including the five boroughs and Long Island. None of the petitioners are located within New York City itself, but instead reside on the fringes or rim of the New York ADI. An ADI is a geographic area defining television markets in the United States based on measured viewing patterns around a centrally located city. Congress also stated in the definition that a broadcast station's market would be its ADI "except that, following a written request, the [FCC] may, with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section." Id.
"local commercial television station" is defined to mean "any full power television broadcast station ... licensed and operating on a channel regularly assigned to its community by the Commission that, with respect to a particular cable system, is within the same television market as the cable system." 47 U.S.C. § 534(h)(1)(A). No one disputes that the television stations owned by petitioners fall within this category. Those stations are WLNY-TV, licensed to Riverhead, Long Island; WRNN-TV, licensed to Kingston, New York; and WHAI-TV, licensed to Bridgeport, Connecticut. Thus, they possess must-carry rights entitling them to carriage of their broadcast signal by cable companies located within the "same television market."
When the FCC receives a request to modify a station's market, the statute instructs that the agency "shall afford particular attention to the value of localism" through the consideration of such factors as:
(I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community;
(II) whether the television station provides coverage or other local service to such community;
(III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and
(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.
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