Berkshire Cablevision of Rhode Island v. Burke

Decision Date15 September 1983
Docket NumberCiv. A. No. 82-0537.
PartiesBERKSHIRE CABLEVISION OF RHODE ISLAND, INC. v. Edward F. BURKE, in his capacity as Administrator of the Division of Public Utilities and Carriers, State of Rhode Island.
CourtU.S. District Court — District of Rhode Island

COPYRIGHT MATERIAL OMITTED

John V. Kenny, Newton, Mass., for plaintiff.

Richard Crowell, Providence, R.I., for defendant.

OPINION

PETTINE, Senior District Judge.

This case involves important questions concerning the First Amendment rights of cable television operators. At issue is the constitutionality of regulations promulgated by the Rhode Island Division of Public Utilities and Carriers ("DPUC"); the contested features require:

1. the cable television operator to provide, of the total available channels, at least one channel each for access by members of the public, educational institutions and government agencies;

2. the cable television operator to construct an institutional/industrial network which will permit origination and transmission, for a fee, of programming at institutions and public buildings, including schools and religious institutions within the service territory.

The plaintiff, Berkshire Cablevision of Rhode Island, Inc. ("Berkshire"), is an applicant for a certificate to provide cable television service to Newport County, Rhode Island. It seeks a declaration that the regulations are unconstitutional as violative of the First and Fourteenth Amendments to the United States Constitution, and a permanent injunction prohibiting any hearings thereunder.

The defendant Edward Burke, Administrator of the DPUC, is responsible for the regulation of cable television in Rhode Island and is sued in his official capacity.

For the reasons which follow, the injunction and declaration of unconstitutionality are denied.

I. FACTS

In order to operate a "community antenna television" ("CATV") company1 in this state it is necessary that a certificate be obtained from DPUC, which is charged with the responsibility of supervising and enforcing rules it is required to promulgate for the regulation of every such CATV operation. R.I.G.L. § 39-19-3 and 6 (1977 reenactment).

On January 30, 1981, after extensive public hearings between November 1980 and January 1981 concerning the regulation of the cable television industry, "Rules Governing Community Antenna Television Systems" were adopted pursuant to the Rhode Island Administrative Procedures Act, R.I. G.L. § 42-35-1 et seq. These rules are the subject of the present controversy.

Under the DPUC regulations the Administrator is authorized to designate CATV Service Areas, § 2.1, and then issue an "Invitation for Applicants" to provide CATV service in these areas. § 3.2(a). Public hearings are held concerning each application. § 3.2(b). If more than one application is received, the hearings are to be comparative in nature and the Administrator awards the CATV franchise to the applicant that is "fit, willing, technically qualified and financially able" to provide CATV service within the designated service area. Id. §§ 3.3(d), 4 and 5.

The Service Area in question here (hereinafter referred to as "Newport County") includes the city of Newport and the towns of Middletown, Portsmouth, Tiverton and Little Compton. On January 29, 1982, Berkshire, together with many others, filed an application to develop and operate a CATV system for Newport County. In July 1982 the Administrator commenced public hearings. On August 16, 1982 Berkshire commenced this suit.

I denied the plaintiff's motion for a temporary restraining order and permitted the hearings to go forward but enjoined the Administrator from awarding the Newport County CATV certificate pending resolution of this case.

Berkshire did not make its presentation to the DPUC because it felt it would be prejudiced by being forced to show how it would comply with regulations which it claims are unconstitutional.

The plaintiff's first challenge attacks Chapter 14 of the regulations, which requires CATV operators to designate and reserve a minimum of seven public access cable television channels. § 14.1(a).2 The provision in question specifically requires cable operators to make time available for educational, governmental and other purposes. Additionally they must dedicate one of their channels for use by members of the general public on a first-come, first-served nondiscriminatory basis and without charge.3 Berkshire contends that these mandatory access regulations violate the First Amendment by stripping cable operators of editorial control of their channels and deprives them of their property in violation of the Fourteenth Amendment.

A. DISCUSSION

This evolving area of the law concerning cable television operation evokes provocative and difficult First Amendment issues. It is a new medium and the differences in its characteristics justify differences in applicable First Amendment standards. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 386, 89 S.Ct. 1794, 1804, 23 L.Ed.2d 371 (1969). See F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978). Although cable television operators are undoubtedly engaged in some forms of speech protected by the First Amendment, F.C.C. v. Midwest Video, 440 U.S. 689, 707, 99 S.Ct. 1435, 1445, 59 L.Ed.2d 692 (1979); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982), the extent of this protection has not as yet been clearly defined. In our pursuit of answers we seek guidance by analogizing to other areas such as newspaper and broadcast journalism where First Amendment concerns have already been addressed. I will discuss each of these areas separately.

1. Regulation of Broadcast Television

Government regulation of the broadcast industry began in 1927 with the creation of the Federal Radio Commission Radio Act of 1927, ch. 169, 44 Stat. 1162 (repealed 1934). The Radio Commission was replaced by the Federal Communications Commission (F.C.C.) in 1934. Communications Act of 1934, ch. 652, 48 Stat. 1064 (currently codified at 47 U.S.C. §§ 151-757 (1976 & 1983 Supp.)). Since 1934 the F.C.C. has regulated the nation's broadcast frequencies through the issuance of renewable licenses. 47 U.S.C. § 307 (1976 & 1983 Supp.). See Red Lion, supra, 395 U.S. at 379-80, 89 S.Ct. at 1800-01.

In the broad overview, to be discussed specifically infra, we see the government controlling broadcast communication because the paramount right of the viewers and listeners of this limited medium mandates that it not be monopolized by a single point of view. We also see a refusal to recognize any inherent right to guaranteed paid editorial access, at least in the absence of the establishment of such right by Congress, and the appropriateness of access regulations to make time available to legally qualified candidates for federal office.

The F.C.C.'s power to issue broadcast licenses was first challenged as an abridgement of free speech in National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). In that case, the Supreme Court rejected the claim that the right of free speech includes the right to use radio frequencies without a license. Id. at 227, 63 S.Ct. at 1014. It observed that "the radio spectrum simply is not large enough to accommodate everybody. There is a fixed natural limitation upon the number of stations that can operate without interfering with one another." Id. at 213, 63 S.Ct. at 1008. The Court concluded that the Commission's control over broadcast licenses was necessary to eliminate the "chaos and confusion" that had resulted from unregulated competition for use of the nation's airwaves.

Then in Red Lion, supra, the Supreme Court again relied upon the scarcity of broadcast frequencies when it upheld the constitutionality of F.C.C. regulations known as the fairness doctrine.4 The broadcasters in Red Lion argued that the fairness doctrine violated the First Amendment because it interfered with their editorial control over the content of their broadcasts:

The First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.
Id., 395 U.S. at 386, 89 S.Ct. at 1804.

The Supreme Court, however, completely rejected the broadcasters' claim that the First Amendment prohibited any interference with their selection of programming. The Court reasoned that

because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.
Id., 395 U.S. at 390, 89 S.Ct. at 1806.

The Red Lion Court emphasized that the public's right to receive information was entitled to greater First Amendment protection than broadcasters' rights to monopolize the airwaves.

Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.... The First Amendment confers no right on licensees to prevent others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce
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