768 F.2d 1434 (D.C. Cir. 1985), 83-1283, Quincy Cable TV, Inc. v. F.C.C.

Docket Nº:83-1283, 83-2050.
Citation:768 F.2d 1434
Party Name:QUINCY CABLE TV, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. KHQ, Incorporated, Spokane Television, Inc., King Broadcasting Company, Association of Independent Television Stations, Inc., National Association of Broadcasters, and Town of Quincy, Washington, Intervenors. TURNER BROADCASTING SYSTEM
Case Date:July 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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768 F.2d 1434 (D.C. Cir. 1985)

QUINCY CABLE TV, INC., Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

KHQ, Incorporated, Spokane Television, Inc., King

Broadcasting Company, Association of Independent Television

Stations, Inc., National Association of Broadcasters, and

Town of Quincy, Washington, Intervenors.

TURNER BROADCASTING SYSTEM, INC., Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

Metromedia, Inc., Community Antenna Television Association,

Inc., Black Entertainment Television, National Religious

Broadcasters, Television Licensees, Association of

Independent Television Stations, Inc., Corporation For

Public Broadcasting, National Association of Broadcasters,

Spanish International Communications Corporation et al.,

National Association of Public Television Stations, Columbus

Broadcasting Company, Inc. et al., King Broadcasting

Company, National Cable Television Association, Inc.,

Association of Maximum Service Telecasters, Inc.,

McGraw-Hill Broadcasting Company, Inc. et al., National

Broadcasting Company, Inc., Station Representatives

Association, Taft Television and Radio Company, Inc., and

Maranatha Broadcasting Company, Inc., Intervenors.

Nos. 83-1283, 83-2050.

United States Court of Appeals, District of Columbia Circuit

July 19, 1985

Argued April 16, 1985.

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[Copyrighted Material Omitted]

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Petitions for Review of Orders of the Federal Communications commission.

John P. Cole, Jr., Washington, D.C., with whom David M. Silverman, Washington, D.C., was on initial and supplemental briefs, for Quincy Cable TV, Inc., petitioner in No. 83-1283. John P. Cole, Jr., Washington, D.C., also entered an appearance for Town of Quincy, Wash., intervenor in No. 83-1283.

Bruce D. Sokler, Washington, D.C., with whom Charles D. Ferris, Frank W. Lloyd, and L. Gregory Ballard, Washington, D.C., were on brief, for Turner Broadcasting System, Inc., petitioner in No. 83-2050.

Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., for respondents in Nos. 83-1283 and 83-2050. Bruce E. Fein, then Gen. Counsel, F.C.C., Washington, D.C., was on initial brief for respondents in No. 83-1283 and on brief for respondents in No. 83-2050. Gregory M. Christopher, Atty., F.C.C., Washington, D.C., was on initial brief for respondents and Supplemental Brief for Respondents, Intervenors, and Amici Curiae pursuant to Court Order of October 16, 1984 in No. 83-1283, and entered an appearance for respondent F.C.C. in No. 83-2050. Robert G. Nicholson and Margaret G. Halpern, Attys., Dept. of Justice, Washington, D.C., were on initial brief for respondents and the Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283, and on brief for respondents in No. 83-2050. J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., was on Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283 and on brief for respondents in No. 83-2050. Jack D. Smith, Gen. Counsel, F.C.C., Washington, D.C., was on Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283. Jane E. Mago and C. Grey Pash, Jr., Attys., F.C.C., Washington, D.C., entered appearances for respondent F.C.C. in No. 83-2050.

J. Laurent Scharff, Washington, D.C., with whom James M. Smith, Washington, D.C., was on initial and supplemental briefs in No. 83-1283 and on brief in No. 83-2050, for Ass'n of Independent Television Stations, Inc. and Nat. Ass'n of Broadcasters, intervenors in Nos. 83-1283 and 83-2050, and for Ass'n of Maximum Service Telecasters, Inc., McGraw-Hill Broadcasting Co., Inc., Metromedia, Inc., Nat. Broadcasting Co., Inc., and Taft Television and Radio Co., Inc., intervenors in No. 83-2050. Jonathan D. Blake, Paul J. Berman, and Gregory M. Schmidt, Washington, D.C., entered appearances for intervenor Association of Maximum Service Telecasters, Inc. Arthur B. Goodkind and Mary M. Hendriksen, Washington, D.C., entered appearances for intervenors McGraw-Hill Broadcasting Co., Inc. et al. Howard Monderer, Washington, D.C., entered an appearance for intervenor Nat. Broadcasting Co., Inc. Erwin G. Krasnow and Michael D. Berg, Washington, D.C., entered appearances for intervenor Nat. Ass'n of Broadcasters.

Arthur Stambler, Erwin G. Krasnow, Michael D. Berg, Edward W. Hummers, Jr., and David G. Rozzelle, Washington, D.C., were on brief for Spokane Television, Inc., intervenor in No. 83-1283, and Nat. Ass'n of Broadcasters and King Broadcasting Co., intervenors in Nos. 83-1283 and 83-2050.

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R. Russell Eagan, Washington, D.C., was on brief for KHQ, Inc., intervenor in No. 83-1283.

John Geoffrey Bentley, Washington, D.C., was on brief for Maranatha Broadcasting Co., Inc., intervenor in No. 83-2050. Laura Metcoff Klaus, Washington, D.C., entered an appearance for this intervenor.

Norman P. Leventhal, Meredith S. Senter, Jr., and Barbara K. Kline, Washington, D.C., were on brief for Spanish Inter. Communications Corp. et al., intervenors in No. 83-2050.

Stephen R. Effros was on brief for Community Antenna Television Ass'n, Inc., intervenor in No. 83-2050.

Debra Lee Carter, Washington, D.C., was on brief for Black Entertainment Television, intervenor in No. 83-2050. Steven Reed, Washington, D.C., entered an appearance for this intervenor.

Brenda L. Fox, Carol A. Melton, Robert St. John Roper, and Michael S. Schooler, Washington, D.C., were on brief for Nat. Cable Television Ass'n, Inc., intervenor in No. 83-2050.

Baryn S. Futa and Susan Dillon, Washington, D.C., were on brief for Corp. for Public Broadcasting and Nat. Ass'n of Public Television Stations, intervenors in No. 83-2050.

Edward W. Hummers, Jr., David G. Rozzelle, and Robert A. DePont, Washington, D.C., entered appearances for King Broadcasting Co., intervenor in Nos. 83-1283 and 83-2050.

Lawrence A. Horn, Nancy H. Hendry, Eric H. Smith, and Lewis J. Paper, Washington, D.C., were on brief for Corp. for Public Broadcasting et al., amici curiae in No. 83-1283, urging affirmance. Robert S. Blacher entered an appearance for these amici.

Daniel J. Popeo and Michael P. McDonald, Washington, D.C., were on brief for American Legal Foundation, amicus curiae in No. 83-2050, urging reversal.

Before WRIGHT, GINSBURG and BORK, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge.

FCC regulations require cable television operators, 1 upon request and without compensation, to transmit to their subscribers every over-the-air television broadcast signal 2 that is "significantly viewed in the community" or otherwise considered local under the Commission's rules. 47 C.F.R. Secs. 76.57-76.61 (1984). Alleging that these mandatory carriage or "must-carry" rules violate the First Amendment rights of cable programmers, cable operators, and the viewing public, Turner Broadcasting Systems, Inc. (TBS), the owner of a variety of cable services, 3 petitioned the FCC to institute rulemaking procedures to delete the offending regulations. 4 Although acknowledging

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that the challenged rules deprive cable programmers of access to some audiences and "compel carriage of broadcast signals in place of alternate programming that subscribers, if given a choice, might otherwise choose," the Commission denied TBS's petition. Memorandum Opinion and Order, FCC 84-136, April 6, 1984 (hereinafter Opinion and Order ), at 3, Joint Appendix to No. 83-2050 (Turner JA) at 3. TBS now petitions for review of that denial. In a separate action, Quincy Cable Television, Inc. (Quincy), the operator of a cable system in Quincy, Washington, petitions for review of an FCC order requiring it to carry the signals of several local broadcast stations and imposing a $5,000 "forfeiture" for its failure to do so. 5

In the course of reviewing those petitions, we have concluded and now hold that the must-carry rules are fundamentally at odds with the First Amendment and, as currently drafted, can no longer be permitted to stand.

I. BACKGROUND

The Supreme Court has repeatedly stressed that "[e]ach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion). Mindful that in applying the broad principles of the First Amendment to new media we must remain sensitive to the "differing natures, values, abuses and dangers" of each method of expression, Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513 (1949) (Jackson, J., concurring), we examine in detail the nature of cable television technology, the history and purposes of the FCC's regulation of that technology, and prior judicial assessments of the constitutionality of that regulation.

  1. Cable Television Regulation and the Origins and Purposes of the Must-Carry Rules

    1. Cable television and ordinary commercial broadcast television operate on the basis of wholly different technical and entrepreneurial principles. See generally Capital Cities Cable, Inc. v. Crisp, --- U.S. ----, 104 S.Ct. 2694, 2701, 81 L.Ed.2d 580 (1984). Conventional broadcasters radiate electromagnetic waves from a transmitting antenna. The waves are intercepted by the viewer's television receiver, typically via a rooftop antenna, and decoded to produce a video image. Broadcasters derive their revenues not by selling the signal to...

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