965 F.2d 1103 (D.C. Cir. 1992), 91-1089, Beach Communications, Inc. v. F.C.C.
|Citation:||965 F.2d 1103|
|Party Name:||BEACH COMMUNICATIONS, INC., Maxtel Limited Partnership, Pacific Cablevision and Western Cable Communications, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Spectradyne, Inc., National Cable Television Association, Inc., Wireless Cable Association, Inc., Southwestern Bell Corporation and Hughes Co|
|Case Date:||June 09, 1992|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Dec. 9, 1991. Prior Decision March 6, 1992.
Roberta L. Cook, Atty., F.C.C., with whom Robert L. Pettit, General Counsel, and John E. Ingle, Deputy Associate General Counsel, F.C.C., and James F. Rill, Asst. Atty. Gen., and Robert B. Nicholson and James W. Lowe, Attys., U.S. Dept. of Justice, Washington, D.C., were on the brief, for respondents. Daniel M. Armstrong, Associate General Counsel, Washington, D.C., also entered an appearance for respondents.
Brenda L. Fox and Diane B. Burstein, Washington, D.C., were on the brief for intervenor National Cable Television Ass'n, Inc. Seth A. Davidson, Washington, D.C., also entered an appearance for intervenor.
Ronald A. Siegel and Mark L. Pelesh, Washington, D.C., entered appearances for intervenor Spectradyne, Inc.
Paul J. Sinderbrand and Robert F. Aldrich, Washington, D.C., entered appearances for intervenor Wireless Cable Ass'n, Inc.
Martin E. Grambow, Washington, D.C., James D. Ellis and Liam S. Coonan, St. Louis, Mo., entered appearances for intervenor Southwestern Bell Corp.
Gary M. Epstein, Washington, D.C., entered an appearance for intervenor Hughes Communications Galaxy, Inc.
Before: MIKVA, Chief Judge, HARRY T. EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Chief Judge MIKVA.
This is our second decision on the instant petition for review of an FCC rule, the Cable Definition Rule, promulgated pursuant to the Cable Act. In the first decision, Beach Communications, Inc. v. FCC, 959 F.2d 975 (D.C.Cir.1992) ("Beach I "), we remanded the record to the FCC. The record has now been returned. We hold that the Cable Act violates the equal protection component of the Fifth Amendment, insofar as it imposes a discriminatory franchising requirement, and vacate the Cable Definition Rule in relevant part.
The background of this case is explained in detail in Beach I, so we will not repeat it here. To briefly summarize, petitioners operate or plan to operate external, quasi-private SMATV facilities: where wires or other closed transmission paths interconnect separately-owned, controlled and managed multiple-unit dwellings, without those wires using public rights-of-way. The Cable Definition Rule construes the statutory term "cable system" to include such facilities, but to exclude both internal facilities (where wires do not interconnect separate buildings or use public rights-of-way) and wholly private facilities (where a single building or a group of commonly-owned, controlled or managed buildings are served, and the wires do not use public...
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