Mt. Mansfield Television, Inc. v. FCC, 647-650
| Decision Date | 03 May 1971 |
| Docket Number | 35429,Dockets 35242,35435,35483 and 35484.,35246,No. 647-650,652-653,647-650 |
| Citation | 442 F.2d 470 |
| Parties | MT. MANSFIELD TELEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. COLUMBIA BROADCASTING SYSTEM, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. VAN CURLER BROADCASTING CORPORATION and WLKY-TV, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. NATIONAL BROADCASTING COMPANY, Inc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. MCA, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AMERICAN BROADCASTING COMPANIES, Inc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Westinghouse Broadcasting Co., Inc., MCA, Inc., Metromedia, Inc., CBS Television Affiliates, Intervenors. |
| Court | U.S. Court of Appeals — Second Circuit |
Brice M. Clagett, Washington, D. C. (Eugene F. Mullin, S. White Rhyne, Jr., Mullin, Connor & Rhyne, Washington, D. C., on the brief), for petitioner Mt. Mansfield Television, Inc.
Lloyd N. Cutler, Washington, D. C. (J. Roger Wollenberg, Timothy B. Dyk, Daniel Marcus, Stephen A. Weiswasser, Sally Katzen, Wilmer, Cutler & Pickering, Washington, D. C., Robert V. Evans, John D. Appel, Albert H. Dwyer, Michael J. Goldey, New York City, on the brief), for petitioner Columbia Broadcasting System, Inc.
Brice M. Clagett, Washington, D. C. (Jack P. Blume, James K. Edmundson, Fly, Shuebruk, Blume & Gaguine, Washington, D. C., on the brief), for petitioners Van Curler Broadcasting Corp. and WLKY-TV, Inc.
Jerome J. Shestack, Philadelphia, Pa. (Bernard G. Segal, Harvey Levin, Philadelphia, Pa., Corydon B. Dunham, Benjamin D. Raub, New York City, Howard Monderer, Washington, D. C., on the brief), for petitioner National Broadcasting Co., Inc.
Arthur Scheiner, Washington, D. C. (Richard A. Solomon, Edward P. Taptich, Wilner, Scheiner & Greeley, Washington, D. C., on the brief), for petitioner and intervenor MCA, Inc.
James A. McKenna, Jr., Washington, D. C. (Thomas N. Frohock, Washington, D. C., on the brief), for petitioner American Broadcasting Companies, Inc.
John H. Conlin, Associate Gen. Counsel, F. C. C. (Richard E. Wiley, Gen. Counsel, Katrina Renouf, Counsel, F. C. C., Washington, D. C., Richard W. McLaren, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept. of Justice, Washington, D. C., on the brief), for respondents Federal Communications Commission and the United States.
John D. Lane, Washington, D. C. (J. Carter McKaig, Ramsey L. Woodworth, John W. Lyon, Hedrick & Lane, Washington, D. C., on the brief), for intervenor Westinghouse Broadcasting Co., Inc.
Thomas J. Dougherty, Washington, D. C. (Alfred L. Schwartz, New York City, on the brief), for intervenor Metromedia, Inc.
Brice M. Clagett, Washington, D. C. (Ernest W. Jennes, Richard B. Stewart, Covington & Burling, Washington, D. C., on the brief), for intervenor CBS Television Affiliates.
Theodore Baron, Leon T. Knauer, William Loftus, Wilkinson, Cragun & Barker, Washington, D. C., submitted a brief amicus curiae for Kid Broadcasting Corp. and WLBZ Television, Inc. Warren Woods, Jerome Y. Sturm, New York City, Leonard Appel, Washington, D. C., Sturm & Perl, New York City, Wilson, Woods & Villalon, Washington, D. C., submitted a brief amicus curiae for National Association of Broadcast Employees and Technicians, AFL-CIO.
Richard Hildreth, Robert L. Olender, Fletcher, Heald, Rowell, Kenehan & Hildreth, Washington, D. C., submitted a brief amicus curiae for Central Coast Broadcasters, Inc.
Paul B. Comstock, John B. Summers, Louise O. Knight, William C. Koplovitz, Washington, D. C., submitted a brief amicus curiae for National Association of Broadcasters.
Edward P. Morgan, A. Robert Cherin, Welch & Morgan, Washington, D. C., submitted a brief amicus curiae for Hughes Sports Network, Inc.
Royal E. Blakeman, Marshall, Bratter, Greene, Allison & Tucker, New York City, submitted a brief amicus curiae for Goodson-Todman Productions.
Before HAYS and ANDERSON, Circuit Judges, and TYLER, District Judge*.
The petitions in this case seek to review and set aside several new rules adopted by the Federal Communications Commission in its Docket No. 12782, "In the Matter of Amendment of Part 73 of the Commission's Rules and Regulations with Respect to Competition and Responsibility in Network Television Broadcasting."1 The full text of these rules, known as the "prime time access," "financial interest" and "syndication" rules, as finally adopted (47 C.F.R. § 73.658(j) and (k), Rules and Regulations of the Federal Communications Commission) is as follows:
(j) Network syndication and program practices. (1) Except as provided in subparagraph (3) of this paragraph, no television network shall:
(i) after October 1, 1971, sell, license, or distribute television programs to television station licensees within the United States for non-network television exhibition or otherwise engage in the business commonly known as `syndication' within the United States; or sell, license, or distribute television programs of which it is not the sole producer for exhibition outside the United States; or reserve any option or right to share in revenues or profits in connection with such domestic and/or foreign sale, license, or distribution; or
(ii) after October 1, 1970, acquire any financial or proprietary right or interest in the exhibition, distribution, or other commercial use of any television program produced wholly or in part by a person other than such television network, except the license or other exclusive right to network exhibition within the United States and on foreign stations regularly included within such television network; provided that if such network does not timely avail itself of such license or other exclusive right to network exhibition within the United States, the grantor of such license or right to network exhibition may, upon making a timely offer reasonably to compensate the network, re-acquire such license or other exclusive right to exhibition of the program.
(2) Nothing contained in subparagraphs (1) and (2) of this paragraph shall prevent any television network from selling or distributing programs of which it is the sole producer for television exhibition outside the United States, or from selling or otherwise disposing of any program rights not acquired from another person, including the right to distribute programs for non-network exhibition (as in syndication) within the United States as long as it does not itself engage in such distribution within the United States or retain the right to share the revenues or profits therefrom.
(3) Nothing contained in this paragraph shall be construed to include any television network formed for the purpose of producing, distributing, or syndicating program materials for educational, non-commercial, or public broadcasting exhibition or uses.
(4) For the purposes of this paragraph and paragraph (k) of this section the term network means any person, entity or corporation which offers an interconnected program service on a regular basis for fifteen or more hours per week to at least twenty-five affiliated television licensees in ten or more states; and/or any person, entity or corporation controlling, controlled by or under common control with such person, entity or corporation. (35 Fed.Reg. 13650 (1970) as corrected by 35 Fed. Reg. 13650-51 (1970).)
(k) Prime time access rule. (1) After October 1, 1971, no television stations, assigned to any of the top fifty markets in which there are three or more operating commercial television stations, shall broadcast network programs offered by any television network or networks for a total of more than three hours per day between the hours of 7:00 p.m. and 11:00 p.m. local time, except that in the Central Time Zone the relevant period shall be between the hours of 6:00 p.m. and 10:00 p.m.
(2) For the purpose of subparagraph (1) of this paragraph, network programs shall be defined to exclude special news programs dealing with fast-breaking news events, on-the-spot coverage of news events and political broadcasts by legally qualified candidates for public office.
(3) The portion of the time from which network programming is excluded by subparagraph (1) hereof may not after October 1, 1972, be filled with off-network programs; or feature films which within two years prior to the date of broadcast have been previously broadcast by a station in the market.
(4) The top fifty markets shall be determined on an annual basis as of September 1 according to the most recent American Research Bureau prime time market rankings (all home stations combined) throughout the United States.
(5) Nothing in this paragraph shall be construed to apply to educational, non-commercial, or public broadcasting station licensees in their use and exhibition of program materials supplied through one or more non-commercial, educational, or public broadcasting television network systems." (35 Fed.Reg. 7425-26 (1970), as amended in 35 Fed. Reg. 13216 (1970), as corrected by 35 Fed.Reg. 13650-51 (1970).)
The new rules are the result of years of investigation begun in 1959 when the Commission instituted proceedings in Docket No. 12782 "to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for televised exhibition, and the reasons and necessity in the public interest for said policies and practices * * *."2 Public hearings conducted in New York, Washington and Los Angeles resulted in an Interim Report from the Commission's Office of...
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