56 F.3d 105 (C.D. Cir. 1995), 93-1169, Alliance for Community Media v. F.C.C.

Docket Nº:93-1169, 93-1171, 93-1270 and 93-1276.
Citation:56 F.3d 105
Party Name:ALLIANCE FOR COMMUNITY MEDIA; Alliance for Communications Democracy; People for the American Way, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents. New York Citizens Committee for Responsible Media; Media Access New York; Brooklyn Producers' Group; David Channon; National Cable Television Association, Inc., I
Case Date:June 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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56 F.3d 105 (C.D. Cir. 1995)

ALLIANCE FOR COMMUNITY MEDIA; Alliance for Communications

Democracy; People for the American Way, Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors.

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC.;

American Civil Liberties Union, Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors.

ALLIANCE FOR COMMUNITY MEDIA; Alliance for Communications

Democracy; People for the American Way, Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

New York Citizens Committee for Responsible Media; Media

Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors.

AMERICAN CIVIL LIBERTIES UNION, Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

New York Citizens Committee for Responsible Media;

Media Access New York; Brooklyn Producers' Group;

David Channon; National Cable

Television Association, Inc.,

Intervenors.

Nos. 93-1169, 93-1171, 93-1270 and 93-1276.

United States Court of Appeals, District of Columbia Circuit

June 6, 1995

Argued In Banc Oct. 19, 1994.

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Petitions for Review of Orders of the Federal Communications Commission.

I. Michael Greenberger, argued the cause, for petitioners. With him on the briefs, were Charles S. Sims, Lisolette E. Mitz, Marjorie Heins and Arthur B. Spitzer, for petitioners Denver Area Educational Telecommunications Consortium, Inc. and the American Civil Liberties Union, David A. Bono, Michael K. Isenman and David B. Goodhand, for petitioners the Alliance for Community Media, the Alliance for Communications Democracy, and People for the American Way, James N. Horwood, for petitioners the Alliance for Community Media and the Alliance for Communications Democracy, Andrew J. Schwartzman and Elliot Mincberg for petitioner People for the American Way.

Jacob M. Lewis, Atty., Dept. of Justice, argued the cause, for respondents. With him on the brief, were Frank W. Hunger, Asst. Atty. Gen., and Barbara L. Herwig, Atty., Dept. of Justice, William E. Kennard, Gen. Counsel, Christopher J. Wright, Deputy Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Gregory M. Christopher, Counsel, F.C.C.

Robert T. Perry, was on the brief, for intervenors New York Citizens Committee for Responsible Media, Media Access New York, Brooklyn Producers' Group, and David Channon. Daniel L. Brenner, Neal M. Goldberg and Diane B. Burstein, were on the brief, for intervenor National Cable Television Ass'n, Inc. H. Robert Showers, was on the joint brief, for amici curiae National Law Center for Children and Families. With him on the joint brief were James P. Mueller for National Family Legal Foundation and Paul McGeady for Morality in Media, Inc.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge WALD, in which Circuit Judge TATEL joins and Circuit Judge ROGERS joins as to Parts II and III.

Opinion dissenting in part filed by Chief Judge EDWARDS.

Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.

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RANDOLPH, Circuit Judge:

This case is here on petitions for review of two orders of the Federal Communications Commission implementing section 10 of the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. No. 102-385, 106 Stat. 1460, 1486 (to be codified at 47 U.S.C. Secs. 531, 532(h), 532(j), & 558). Petitioners are five organizations, some of whose members produce programming for cable "access" channels; an individual "access" programmer; and two other groups whose members watch cable television. The case was argued first to a panel of the court, which remanded it to the Commission on the grounds that sections 10(a) and 10(c) violated the freedom of speech clause of the First Amendment to the Constitution and that section 10(b), and the Commission's regulations thereunder, posed such serious constitutional questions that the Commission ought to reconsider the matter in light of the unconstitutionality of sections 10(a) and 10(c). Alliance for Community Media v. FCC, 10 F.3d 812, 823-24, 829 (D.C.Cir.1993). The full court vacated the panel's judgment. Alliance for Community Media v. FCC, 15 F.3d 186 (D.C.Cir.1994). On rehearing the case in banc, we sustain section 10 and the Commission's regulations.

I

The Commission gradually began asserting jurisdiction over a form of cable television--community antenna television systems--in the early 1960's. Through that decade and into the next, the pace of regulation intensified. By 1980, however, the trend had reversed itself. The cable industry experienced substantial federal deregulation, driven in no small measure by the Supreme Court's decision in FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). The Court there struck down, as beyond the Commission's statutory authority over broadcasting, its 1972 rules (as modified by its 1976 rules) requiring cable operators to dedicate four of their "channels for public, governmental, educational, and leased access." Id. at 691, 99 S.Ct. at 1437. Cable operators "own the physical cable network and transmit the cable signal to the viewer." Turner Broadcasting Sys., Inc. v. FCC, --- U.S. ----, ----, 114 S.Ct. 2445, 2452, 129 L.Ed.2d 497 (1994). By "transferr[ing] control of the content of access cable channels from cable operators to members of the public," the Commission had--the Court held in Midwest Video--transformed cable operators into "common carriers." 440 U.S. at 700, 701, 99 S.Ct. at 1441, 1442. Congress had prohibited the Commission from imposing common-carrier obligations on broadcasters because this would intrude on their editorial control over programming. Id. at 705, 99 S.Ct. at 1444. Cable operators were situated similarly. They shared "with broadcasters a significant amount of editorial discretion regarding what their programming will include," and, like broadcasters, could not be burdened with common carrier obligations without Congress' express direction. Id. at 707, 709, 99 S.Ct. at 1445, 1446.

The Cable Communications Policy Act of 1984 revived much of the agency-created system struck down five years earlier in Midwest Video. The 1984 Act compelled cable operators of systems with more than thirty-six channels to set aside between 10 and 15 percent of their channels for commercial use by persons unaffiliated with the operator. 47 U.S.C. Sec. 532(b). On these "leased access" channels, the statute forbade the operator from exercising "any editorial control over" the programming, "except that an operator may consider such content to the minimum extent necessary to establish a reasonable price" for the use of the channel. 47 U.S.C. Sec. 532(c)(2). In return, the 1984 Act exempted operators from criminal and civil liability arising from programs carried on leased access channels. 47 U.S.C. Sec. 558 (amended 1992). While thus removing the operators' control over and legal responsibility for leased access programming, the 1984 Act empowered local franchising authorities to bar or regulate such programming if, in the authority's judgment, it "is obscene, or is in conflict with community standards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States." 47 U.S.C. Sec. 532(h).

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The 1984 Act also authorized local franchising authorities to require, as a condition for a franchise or for the renewal of one, that operators set aside "channel capacity" for "public, educational, or governmental use." 47 U.S.C. Sec. 531. Subject to section 544(d), cable operators were forbidden from exercising any editorial control over programming shown on these "PEG access" channels. 47 U.S.C. Sec. 531(e) (amended 1992). Section 544(d)(1) permitted cable operators and franchise authorities to specify that cable services would not be provided if they are "obscene or are otherwise unprotected by the Constitution." As with leased access, section 558 of the 1984 Act relieved cable operators from criminal and civil liability for programs carried on PEG channels.

In "order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber," section 544(d)(2) required cable operators to provide equipment--commonly known as a "lockbox"--enabling the subscriber to block a channel during particular periods. 47 U.S.C. Sec. 544(d).

In 1992, for reasons we describe below, see infra p. 117, Congress decided that revisions were needed in the 1984 Act's treatment of leased access and PEG access channels. Section 10 of the Cable Television Consumer Protection and Competition Act of 1992, which is set forth in the margin, 1 altered the existing system in several ways. Section 10(a) permitted a cable operator to refuse to carry leased access programming the operator "reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community...

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