179 F.3d 188 (5th Cir. 1999), 98-20031, Horton v. City of Houston, Texas

Docket Nº:98-20031.
Citation:179 F.3d 188
Party Name:Robert HORTON, Nationalist Television, a Texas Non-Profit Corporation; and Barry Hackney, Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS and Access Houston Cable Corporation, Defendants-Appellees.
Case Date:June 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 188

179 F.3d 188 (5th Cir. 1999)

Robert HORTON, Nationalist Television, a Texas Non-Profit

Corporation; and Barry Hackney, Plaintiffs-Appellants,


CITY OF HOUSTON, TEXAS and Access Houston Cable Corporation,


No. 98-20031.

United States Court of Appeals, Fifth Circuit

June 18, 1999

Richard Barrett, Learned, MS, for Plaintiffs-Appellants.

Gilbert D. Douglas, Susan Tom Taylor, City of Houston Legal Department, Houston, TX, for City of Houston, Texas.

J. Hoke Peacock, III, Neal Stuart Manne, Susman Godfrey, Houston, TX, Emery Lawrence Vincent, Susman Godfrey, Dallas, TX, for Access Houston Cable Corp.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and JOLLY and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

At issue in this appeal is whether Access Houston Cable Corporation ("Access"), a "PEG" cable channel, 1 can, consistent with the First Amendment, charge a fee to cable-cast programs not "locally produced" in and around Houston, Texas. We conclude that Access Houston's fee requirement is a content-neutral regulation which implements 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 therefore reverse the grant of summary judgment and remand for further proceedings.


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. 2 Houston then engaged Access to manage the channels, including a public access channel. 3 Access is not a typical cable channel: It does not operate for profit, it does not have an editorial board that selects programming for cable-cast, and it does not sell advertising space. Instead, Access's programming space is open to any individual or organization who wishes to televise constitutionally protected speech. Access neither produces programs nor broadcasts commercial programs. To promote the original programming on which it relies, Access offers (for a nominal fee) video cameras and other production equipment, 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 employees 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 programs by signing a Program Contract before the program will be aired. 4

At the time this dispute arose, Access sought to encourage programs "that reflect[ ] the activities, culture, concerns, and interests of the citizens of Houston and [ ]promote a free exchange of ideas, information and understanding." 5 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 program 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: individuals 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.

In March 1992, Appellant Nationalist Television ("N-TV"), as agent for Houston resident appellant Robert Horton, submitted a 30-minute program for cable-cast entitled Airlink. 6 After a month had passed and the program had not been cable-cast, N-TV wrote to the Houston City Attorney's office demanding that Access immediately cable-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 complied with the procedural requirements necessary to broadcast Airlink and that N-TV should directly contact Access to complete the application process. Despite this notification and the receipt of a complete copy of the Access procedural 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 thus required to pay the $100 cable-cast fee. 7 N-TV refused to pay, arguing that the fee violated the First Amendment, and filed the present lawsuit seeking a declaratory judgment, a temporary restraining order, and a permanent injunction. 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 temporary 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 requirement is a facially valid, content-neutral regulation incidental to free speech under the test articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and that the appellants failed to raise a genuine issue of material fact regarding whether the fee requirement was unconstitutional as applied.


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 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 matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under this standard, all fact questions must be viewed in the light most favorable to the non-moving party, and questions of law are reviewed de novo. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.1995).


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 asserts that the fee rule grants overbroad, arbitrary discretion to Access administrators, encouraging content-based discrimination against programs. More fundamentally, N-TV contends that the fee regulation is an impermissible content-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 access channel set aside by Houston's cable franchise contract. The Supreme Court has implied that all of the participants in cable television-programmers, cable operators, TV broadcasters, PEG channels--enjoy free speech rights, but the limits of those competing and potentially conflicting rights are far from clear. See generally, Pluralism on the Bench: Understanding Denver Area Educational...

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