Oklahoma Telecasters Ass'n v. Crisp, KTUL-T

• Decision Date: 24 January 1983
• Docket Number: I,INC,KTUL-T,Nos. 82-1058,KOKI-TV,CABLECOM-GENERA,82-1061,s. 82-1058
• Citation: 699 F.2d 490
• Parties: 9 Media L. Rep. 1089 OKLAHOMA TELECASTERS ASSOCIATION, an unincorporated association; Combined Communications Corporation of Oklahoma, Inc., an Oklahoma corporation; Griffin Television, Inc., an Oklahoma corporation; KTVY, Inc., an Oklahoma corporation;nc., an Oklahoma corporation; KOTV, Inc., an Oklahoma corporation; Scripps-Howard Broadcasting Co., an Ohio corporation; Golden West Broadcasters of Oklahoma, Inc., an Oklahoma corporation; Blair Broadcasting of Oklahoma, Inc., an Oklahoma corporation; Eastern Oklahoma Television Co., Inc., an Oklahoma corporation; Seraphim Corp., an Oklahoma corporation;, an Oklahoma partnership; and Tulsa TV 41, a joint venture, Plaintiffs-Appellees, v. Richard A. CRISP, Director, Alcoholic Beverage Control Board, Defendant-Appellant.; Cox Cable of Oklahoma City, Inc.; Multimedia Cablevision, Inc.; and Sammons Communications, Inc., Plaintiffs-Appellees, v. Richard A. CRISP, Director, Alcoholic Beverage Control Board, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 490

699 F.2d 490

9 Media L. Rep. 1089

OKLAHOMA TELECASTERS ASSOCIATION, an unincorporated

association; Combined Communications Corporation of

Oklahoma, Inc., an Oklahoma corporation; Griffin

Television, Inc., an Oklahoma corporation; KTVY, Inc., an

Oklahoma corporation; KTUL-TV, Inc., an Oklahoma

corporation; KOTV, Inc., an Oklahoma corporation;

Scripps-Howard Broadcasting Co., an Ohio corporation;

Golden West Broadcasters of Oklahoma, Inc., an Oklahoma

corporation; Blair Broadcasting of Oklahoma, Inc., an

Oklahoma corporation; Eastern Oklahoma Television Co.,

Inc., an Oklahoma corporation; Seraphim Corp., an Oklahoma

corporation; KOKI-TV, an Oklahoma partnership; and Tulsa

TV 41, a joint venture, Plaintiffs-Appellees, v. Richard A. CRISP, Director, Alcoholic Beverage Control

Board, Defendant-Appellant.

CABLECOM-GENERAL, INC.; Cox Cable of Oklahoma City, Inc.;

Multimedia Cablevision, Inc.; and Sammons

Communications, Inc., Plaintiffs-Appellees, v. Richard A. CRISP, Director, Alcoholic Beverage Control

Board, Defendant-Appellant.

Nos. 82-1058, 82-1061.

United States Court of Appeals Tenth Circuit.

Jan. 24, 1983.

Robert D. Nelon, Oklahoma City, Okl. (Roy J. Davis, L. Gene Gist and Nancy M. Thompson, Oklahoma City, Okl., with him on the brief), of Andrews Davis Legg Bixler Milsten & Murrah, Oklahoma City, Okl., for plaintiffs-appellees Oklahoma Telecasters Ass'n, et al.

Clyde A. Muchmore, Oklahoma City, Okl. (Richard C. Ford, Oklahoma City, Okl., with him on the brief), of Crowe & Dunlevy, Oklahoma City, Okl., for Cablecom-General, Inc. (John D. Matthews, David P. Fleming and J. Christopher Redding of Dow, Lohnes & Albertson, Washington, D.C., for Cox Cable of Oklahoma City, Inc., Multimedia Cablevision, Inc., and Sammons Communications, Inc., with them on the brief), in No. 82-1061.

Gary W. Gardenhire, Asst. Atty. Gen., Okl., Oklahoma City, Okl. (Jan Eric Cartwright, Atty. Gen. of Okl., Oklahoma City, Okl.), for defendant-appellant.

Jerry D. Sokolosky, Oklahoma City, Okl., filed an amicus curiae brief for Oklahoma Press Ass'n and Outdoor Advertising Ass'n of Okl.

Larry Derryberry of Derryberry Duncan & Gray, Oklahoma City, Okl., filed an amicus curiae brief for S.A.N.E., Inc.

Bill Allain, Atty. Gen. of Miss., and Peter M. Stockett, Asst. Atty. Gen. of Miss., Jackson, Miss. (W. Timothy Jones and John E Milner of Brunini, Grantham, Grower & Hewes, Jackson, Miss., of counsel), filed an amicus curiae brief for the State of Miss.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Richard A. Crisp (Crisp) appeals from two summary judgments declaring that certain provisions of Oklahoma's constitution and statutes violate the First and Fourteenth Amendments of the United States Constitution. The appeals were consolidated pursuant to Fed.R.App.P. 3(b).

Appellee in No. 82-1058, Oklahoma Telecasters Association (Telecasters), is an unincorporated association of corporations and partnerships engaged in the business of television broadcasting in the State of Oklahoma. Appellees in No. 82-1061 are holders of cable television franchises in the State of Oklahoma and will be referred to as the "cable operators". Appellant, Crisp, is the former director of the Oklahoma Alcoholic Beverage Control Board, an agency charged with primary responsibility for the enforcement of Oklahoma laws regulating the sale and consumption of alcoholic beverages.

The Oklahoma Constitution stringently restricts the advertising of alcoholic beverages:

It shall be unlawful for any person, firm or corporation to advertise the sale of alcoholic beverage within the State of Oklahoma, except one sign at the retail outlet bearing the words "Retail Alcoholic Liquor Store."

Okla. Const. art. XXVII, Sec. 5. The Oklahoma Alcoholic Beverage Control Act similarly prohibits the advertising of "alcoholic beverages or the sale of the same within the State of Oklahoma," except by strictly regulated on-premises signs. Okla.Stat.Ann. tit. 37, Sec. 516 (West Supp.1982). That act defines "alcoholic beverage" as "alcohol, spirits, beer, and wine...." Okla.Stat.Ann. tit. 37, Sec. 506(2) (West Supp.1982). The definition of "beer" only includes beverages "containing more than three and two-tenths percent (3.2%) of alcohol by weight...." Okla.Stat.Ann. tit. 37, Sec. 506(3) (West Supp.1982). Since beer can contain 3.2% alcohol or less, the advertising of beer generally is allowed. The advertising of wine and other alcoholic beverages within the state, however, is prohibited.

The members of Telecasters rebroadcast network programming that includes advertisements for wine. Although such advertising is lawful where it originates, and in most states where rebroadcast occurs, the members of Telecasters are required to "block out" network advertising of wine. If Telecasters' members fail to do so, or if they solicit or accept advertisements for alcoholic beverages, they are subject to criminal prosecution by complaint of the Alcoholic Beverage Control Board.

The cable operators also are prohibited from soliciting or accepting advertising for alcoholic beverages. For many years, however, the cable operators have been allowed to relay programming from out-of-state television stations that included advertisements for wine. In fact, Federal Communication Commission regulations and federal copyright law prohibit cable operators from altering or modifying the television signals, including advertisements, they relay to subscribers. See 17 U.S.C. Sec. 111(c)(3) (1976) and 47 C.F.R. Sec. 76.55(b) (1981). Despite those federal requirements, the Attorney General of the state of Oklahoma on May 19, 1980, issued an opinion declaring that the prohibitions against alcoholic beverage advertising apply to cable television in the same manner as they apply to broadcast television. Pursuant to that opinion, Crisp notified the cable operators that the wine commercials they had been relaying were illegal, and threatened the operators with criminal prosecution if they continued to relay such commercials.

Telecasters and the cable operators filed separate suits against Crisp, in his official capacity, in the United States District Court for the Western District of Oklahoma. Pursuant to 28 U.S.C. Sec. 2201 (Supp. IV 1980), both plaintiffs asked the court to render a declaratory judgment that Oklahoma's laws, Okla. Const., art. XXVII, Sec. 5 and Okla.Stat.Ann. tit. 37, Sec. 516, supra, violated their rights to free speech, guaranteed by the First and Fourteenth Amendments, and equal protection, guaranteed by the Fourteenth Amendment. ¹ In addition, the cable operators requested and received a preliminary injunction, and both plaintiffs sought permanent injunctions, prohibiting Crisp from enforcing the constitutional and statutory prohibitions against them.

Both the cable operators and Telecasters filed motions for summary judgment under Fed.R.Civ.P. 56. Crisp filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). On December 18, 1981, the district court filed nearly identical memorandum opinions and orders in the two cases, granting Telecasters' and the cable operators' motions for summary judgment, and denying Crisp's motions to dismiss.

In both opinions the district court ruled that the power to regulate liquor granted to the states by the Twenty-first Amendment to the United States Constitution did not override the First Amendment rights of Telecasters and the cable operators. The court then applied the four part analysis the Supreme Court prescribed in Central Hudson Gas and Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), for determining the validity of the regulation of "commercial speech". That analysis can be summarized as follows: (1) is the commercial speech protected by the First Amendment; that is, does it concern lawful activity and is it not misleading; (2) is the asserted governmental interest substantial; (3) does the regulation directly advance the governmental interest asserted; (4) is the regulation more extensive than is necessary to serve the governmental interest? Id. at 566, 100 S.Ct. at 2351.

The district court concluded that Oklahoma's laws only indirectly advanced the stated governmental interest in reducing alcohol consumption and its related problems, and were more extensive than necessary to serve that interest. The court therefore entered declaratory judgments stating that enforcement of the advertising laws does or would violate the plaintiffs' First Amendment rights, as guaranteed by the Fourteenth Amendment. The court also entered permanent injunctions against Crisp, preventing him, or the Alcoholic Beverage Control Board, from enforcing the laws against the plaintiffs.

On January 11, 1982, Crisp timely filed a notice of appeal with this court. On February 10, 1982, the district court entered an order withdrawing its December 18, 1981, opinions, and filed nunc pro tunc memorandum opinions in lieu thereof, supplementing and amplifying its views with respect to the granting of summary judgments. The substituted opinions did not alter the court's reasoning or conclusions in any material way; the December and February opinions are nearly identical. Crisp moved to strike the substituted opinions. The district court overruled the motion in Cablecom, but entered no order in Telecasters.

Crisp then moved the trial court to stay the permanent injunctions pursuant to Fed.R.Civ.P. 62(c). The trial court denied the motion on May 19, 1982. On October 4, 1982, the Supreme Court dismissed for want of a substantial federal question the appeal in Queensgate Investment Co. v. Liquor Control Commission, --- U.S. ----, 103 S.Ct. 31, 74 L.Ed.2d 45 (1982). In that case the Ohio Supreme Court had upheld against a First Amendment challenge a state regulation which prohibited retail liquor permit holders from advertising the retail price of alcoholic beverages.

Based on the Queensgate...