United Video, Inc. v. F.C.C.
| Decision Date | 17 November 1989 |
| Docket Number | Nos. 88-1514,89-1244 and 89-1252,s. 88-1514 |
| Citation | 890 F.2d 1173 |
| Parties | , 1989 Copr.L.Dec. P 26,494, 12 U.S.P.Q.2d 1964, 17 Media L. Rep. 1129 UNITED VIDEO, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Association of Independent Television Stations, Inc. and National Association of Broadcasters, Intervenors. TRIBUNE BROADCASTING COMPANY, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Capital Cities/ABC, Inc., Association of Independent Television Stations, Inc., and National Association of Broadcasters, Motion Picture Association of America, Inc., Meredith Corporation, Intervenors. The COMMUNITY ANTENNA TELEVISION ASSOCIATION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Association of Independent Television Stations, Inc., and National Association of Broadcasters, Capital Cities/ABC, Inc., Motion Picture Association of America, Inc., Meredith Corporation, ABC Television Affiliates Association, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John P. Cole, Jr., with whom Wesley R. Heppler, Washington, D.C., was on the brief for petitioners, United Video, Inc., et al. in No. 88-1514.
Robert A. Beizer for petitioner Tribune Broadcasting Co. in No. 89-1244. R. Clark Wadlow, Washington, D.C., also entered an appearance for Tribune Broadcasting Co.
Frank W. Lloyd, Stephen R. Effros and James H. Ewalt were on the brief for petitioner The Community Antenna Television Ass'n, Inc. in No. 89-1252.
Daniel M. Armstrong, Associate Gen. Counsel, Washington, D.C., F.C.C., with whom Diane S. Killory, Gen. Counsel and C. Grey Pash, Jr., Counsel, F.C.C., James F. Rill, Asst. Atty. Gen., Robert B. Nicholson and Laura Heiser, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents in Nos. 88-1514, 89-1244 and 89-1252.
Arthur B. Goodkind, with whom Henry L. Baumann for Nat. Ass'n of Broadcasters and Ass'n of Independent Television Stations, Inc., Joel Rosenbloom, for Capital Cities/ABC, Inc., James E. Dunstan, Washington, D.C., for Meredith Corp., Joseph W. Waz, Jr. and Fritz E. Attaway, for Motion Picture Ass'n of America, Inc., and Wade H. Hargrove and Mark J. Prak, Raleigh, N.C., for ABC Television Affiliates Ass'n were on the joint brief for intervenors Nat. Ass'n of Broadcasters, et al. in Nos. 88-1514, 89-1244 and 89-1252. Michael H. Bader and David G. O'Neil, Washington, D.C., also entered appearances for Meredith Corp.
Before WALD, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
A syndicated television program is a program marketed from its supplier to local television stations by means other than a television network. In 1988, the Federal Communications Commission reinstated its "syndicated exclusivity" rules. These rules allow the supplier of a syndicated program to agree with a broadcast television station that the station shall be the exclusive presenter of the program in its local broadcast area. A broadcast station with exclusive rights to a syndicated program can forbid any cable television station from importing the program into its local broadcast area from a distant station.
Petitioners, mostly cable television companies whose distant signal offerings will be restricted under the new rules, challenge the rules as arbitrary and capricious, and as violative of the Copyright Act of 1976, the Cable Act of 1984, and the first amendment. We find that the Commission's action is within its authority and is not arbitrary or capricious. Accordingly, we deny the petitions for review.
This court has had several opportunities to examine the checkered history of the regulation of cable television by the Federal Communications Commission ("FCC" or "Commission"). See, e.g., Century Communications Corp. v. FCC, 835 F.2d 292, 293-97 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1438-45 (D.C.Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 977 (1986); Home Box Office, Inc. v. FCC, 567 F.2d 9, 18-25 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). As a prelude to our analysis in this case, we review briefly highlights from the history of syndicated exclusivity regulation ("syndex").
The volatile relationship between cable and broadcast television has traditionally hinged on the ability of cable television stations to receive the signal that a broadcast station sends over the air, and to retransmit that signal to subscribers via a cable. This retransmission is not a "broadcast," for it is not a dissemination of radio communications intended to be received by the public. See 47 U.S.C. Sec. 153(o ) (broadcasting defined). The Communications Act forbids a broadcast station from rebroadcasting another broadcast station's signal without permission, 47 U.S.C. Sec. 325(a), but does not forbid cable retransmission.
Prior to the 1976 revision of the copyright laws, two Supreme Court decisions held that the distinction between broadcasting and cable transmission had important copyright law implications. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), held that when a cable company posted an antenna high on a hilltop, and ran a cable from the antenna into its subscribers' homes, it did nothing significantly different than an individual television owner does when she puts an antenna on her own roof, and runs a cable from it to her television inside. In particular, the cable company's retransmission was not a "performance" of the television program, and so did not violate the copyright on it. Teleprompter Corp. v. CBS, Inc., 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974), extended this reasoning to cases where the cable brought a program to a distant market. 1 Accordingly, cable companies were free, as far as copyright law was concerned, to pick up signals aired by broadcasters and retransmit them throughout the country.
The distress felt by originating broadcasters whose signals were retransmitted in this way was matched only by the anger of local broadcasters in the receiving end communities, who watched the cable companies importing into their markets the very programs that they were themselves showing, and to which they had purchased exclusive broadcast rights. See Rules Re Microwave-Served CATV, 38 F.C.C. 683, 703-04 (1965). Even before the Fortnightly decision validated this practice against copyright claims, the FCC decided that it was an unfair form of competition. Beginning in 1965, the Commission promulgated exclusivity rules that protected local broadcasters from the importation into their markets of distant signals that duplicated signals to which they had purchased exclusive rights. 38 F.C.C. at 741-46. These rules provided nonduplication protection for both network and syndicated programs. In 1966, the Commission expanded the rules, which in 1965 covered only microwave cable systems, to all cable systems, and required all cable systems to notify the Commission before carrying any distant signal. CATV, 2 F.C.C.2d 725, 803-04 (1966).
The Commission for some time attempted to review every importation of a distant signal into any of the top one hundred local television markets for consistency with "the establishment and healthy maintenance of television broadcast service in the area." See id. at 804; Cable Television Report & Order, 36 F.C.C.2d 143, 148 (1972). This proved an administrative impossibility, however, and the Commission sought a more workable scheme. In 1972, the Commission adopted an industry "consensus agreement," that provided comprehensive regulation of the relationship between broadcast and cable television. 36 F.C.C.2d at 284-86. The consensus agreement included syndex rules. Id. at 284-85.
In 1976, Congress finally got around to addressing the question of the copyright liability of cable companies that carried distant signals. Congress provided, in the Copyright Revision Act of 1976, a compulsory licensing scheme whereby cable companies paid an administratively-set fee for such carriage. Subsequently, in 1980, the FCC decided that, given the new copyright regime, syndex protection was no longer in the public interest, although network exclusivity was retained. CATV Syndicated Program Exclusivity Rules, 79 F.C.C.2d 663 (1980). The Commission stated that the elimination of syndex would cause no significant harm to broadcast stations. Id. at 814.
Broadcast stations petitioned the Commission for a reconsideration of its negative position on syndex in 1984, but the Commission refused to budge, saying that there had been no change in circumstances that would justify a change in its position. Syndicated Program Exclusivity and Sports Telecasts, 56 RR2d (P & F) 625 (1984). In 1987, however, the Commission began another review of its 1980 decision to eliminate syndex, and in 1988 it promulgated the rules challenged in this case. In the Matter of Amendment of Parts 73 and 76 of the Commission's Rules Relating to Program Exclusivity in the Cable and Broadcast Industries, 3 F.C.C.Rcd 5299 (1988), on reh'g, 4 F.C.C.Rcd 2711 (1989) (rules codified at 47 C.F.R. Secs. 73.658, 76.92-76.97, 76.151-76.163). The Commission decided that its 1980 decision reflected an imperfect understanding of the role cable was to assume in the ensuing decade as a full competitor to broadcast television. The Commission found that with the enormous growth in cable's audience and advertising revenues, the lack of syndex was harming broadcast stations, and might have been significantly affecting the supply of syndicated programs. The Commission decided to reinstate syndex in view of the changes in...
To continue reading
Request your trial
-
Storer Cable Com. v. City of Montgomery, Ala., Civ. A. No. 90-T-958-N.
...struck down if a challenger can show an inconsistency between the local rule and federal regulation. See generally United Video, Inc. v. FCC, 890 F.2d 1173 (D.C.Cir.1989). The defendants have located no express allowance encompassing Ordinance 48-90 and thus admit that if the ordinance fall......
-
In re Application of WorldCom, Inc.
... ... MCI ... is one of the largest telecommunications companies in the ... United States (U.S.), with 1997 revenues of $19.6 ... billion. [ 3 ] MCI is the second largest U.S ... antitrust law. As the Supreme Court stated in FCC v. RCA ... Communications Inc. : ... To restrict the Commission's action to cases in ... license used to provide voice and video services as well as ... submarine cable landing licenses and a DBS license. Amendment ... ...
-
In re Applications of Ameritech Corp., CC 98-141
... ... Applications of AMERITECH CORP., Transferor, AND SBC COMMUNICATIONS INC., Transferee, For Consent to Transfer Control of Corporations Holding ... France, Israel, Switzerland, the United Kingdom, Chile, ... Mexico, South Korea, Taiwan, and South Africa, ... apprised of its implementation of any FCC merger conditions, ... retain the Nevada Bell brand identity, and ... and video traffic). [ 403 ] BOCs will be able to "fine ... tune" their ... ...
-
Comcast Corp. v. FCC
...unlike here, the Commission had linked its action to a statutory delegation of regulatory authority. See United Video, Inc. v. FCC, 890 F.2d 1173, 1182-83 (D.C.Cir.1989) (upholding rules that, like those upheld in Southwestern Cable, limited the ability of cable companies to import programm......
-
A subsidy by any other name: First Amendment implications of the Satellite Home Viewer Improvement Act of 1999.
...and they are entitled to the protection of the speech and press provisions of the First Amendment"). (151.) United Video, Inc. v. FCC, 890 F.2d 1173, 1191 (D.C. Cir. 1989) (holding that cable syndicated exclusivity rules do not violate the First (152.) Id. (153.) Implementation of the Satel......