Cable Vision, Inc. v. KUTV, INC.
| Decision Date | 06 November 1962 |
| Docket Number | No. 3546.,3546. |
| Citation | 211 F. Supp. 47 |
| Parties | CABLE VISION, INC., et al., Plaintiffs, v. KUTV, INC., the KLIX Corporation, et al., Defendants. |
| Court | U.S. District Court — District of Idaho |
COPYRIGHT MATERIAL OMITTED
Parry, Robertson & Daly, Twin Falls, Idaho, Luxon & Scribner, Helena, Mont., Smith & Pepper, Washington, D. C., George Schiffer, New York City, for plaintiffs.
Benoit & Benoit, Twin Falls, Idaho, McMillan, Cannon, Browning, Jenkins & Alston, Salt Lake City, Utah, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants.
This is one of a series of cases brought to test the rights of so-called community antenna services to pick up the broadcasts of regularly licensed television stations for commercial distribution to their subscribers.
In the first three cases of the series1 the question presented was whether a community antenna service in Twin Falls, Idaho, could, without the consent of three network affiliate stations in Salt Lake City, Utah, each of which held contractual rebroadcast arrangements with a local Twin Falls, Idaho, station, pick up the broadcasts of the Salt Lake City stations for distribution to its community antenna subscribers in Twin Falls.
In those cases this Court held upon a motion for summary judgment that the pick up of the Salt Lake City broadcasts by the community antenna for such purpose did not, under the circumstances, amount to unfair competition with the Salt Lake City stations within the doctrine of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) and related cases. (See previous Opinion of this Court reported in Intermountain Broadcasting & Television Corp. v. Idaho Microwave, et al., 196 F.Supp. 315 (D.Idaho, 1961)).
In its previous opinion this Court expressly noted that no exclusive license rights were relied upon by the Salt Lake City stations in those cases and, further, that the existence of possible exclusive license rights was not sufficiently documented in those cases to justify a determination on that ground by summary judgment.
In the present case the same community antenna operators, Cable Vision, Inc., and Microwave, Inc., defendants in the previous cases and plaintiffs in the present case, commenced this action upon anti-trust grounds against the Twin Falls station, KLIX-TV, mentioned in but not a party to the previous actions and a defendant here.
This defendant, Twin Falls Station, KLIX, has counterclaimed in this action against the community antenna operators, the plaintiffs, alleging, inter alia, that station KLIX, Twin Falls, has certain contractual exclusive rights to the first run of certain programs in the Twin Falls area and that the activities of the community antenna operators — picking up the same programs as broadcast by the Salt Lake City stations for simultaneous distribution to its Twin Falls subscribers — constitutes tortious interference with such contractual rights and, further, constitutes unfair competition under the particular circumstances here presented. Accordingly, counterclaimant, KLIX has applied for a preliminary injunction against the plaintiffs.2
A good deal of the factual background of the operations here involved is set forth in our previous opinion but it is necessary to mention some other aspects in order to differentiate this case, and the relationship of the parties here, from the previous cases.
In the first place it will be observed that the dispute here is not between Salt Lake City broadcasting stations and a Twin Falls, Idaho, community antenna service, as in the previous cases, but between KLIX, Twin Falls, the broadcaster, and the Twin Falls community antenna service.
Counterclaimant, KLIX, Twin Falls, claims certain contracts with the three national network organizations, Columbia Broadcasting Company, National Broadcasting Company and American Broadcasting Company and also with certain film distributors, which either expressly, or impliedly in the light of a general custom and practice in the industry, grant to it the exclusive right of first run of network and film programs in the Twin Falls area.3
As pointed out in this Court's previous opinion, the transcontinental circuits do not reach Twin Falls and for that reason KLIX-TV has arranged to obtain the consent (required by Sec. 325(a), Federal Communications Act of 1934, 47 U.S. C.A. § 325(a)) of three Salt Lake City broadcasting stations, KSL-TV, JUTV and KTVT, also affiliates of the network organizations, to pick up their Salt Lake City network broadcasts by means of the KLIX antenna outside Twin Falls for rebroadcast over KLIX to the Twin Falls television area.
KLIX, Twin Falls, cannot pick up for live rebroadcast more than one such Salt Lake City signal at a time. When KLIX selects one such Salt Lake signal from two or more simultaneous signals, KLIX must normally let the other signal or signals go, although sometimes KLIX records one of the others on video tape for a delayed rebroadcast over KLIX.
Without a community antenna facility Twin Falls area television viewers would not ordinarily be able to receive the Salt Lake City signals on their home sets. To receive these Salt Lake City signals on their home sets Twin Falls area residents would need antenna larger, stronger and more sophisticated than the usual rabbit ear or roof aerial home antenna.
Thus, without community antenna service Twin Falls area home viewers would ordinarily be restricted to whatever single network program from a Salt Lake City Station was being rebroadcast over KLIX, Twin Falls, at any given time.
To provide Twin Falls home viewers with a wider range of choice a community antenna service, operated in part through the facilities of plaintiffs, Cable Vision, Inc., and in part through the facilities of Microwave, Inc., a common carrier, has been established in Twin Falls.
Cable Vision, Inc., picks up the Salt Lake City signals on its own specially constructed antenna outside Twin Falls and brings the signals via the common carrier microwave facilities of co-plaintiff, Microwave, Inc., and its own cable facilities, into Twin Falls and to the home sets of such Twin Falls television viewers as are its subscribers.
The community antenna operators exercise their own judgment as to the signals and programs that will be distributed to their subscriber sets. In the course of such distribution the selected signals are demodulated and otherwise electronically treated and regenerated and in some instances converted into different channels and frequencies than those on which they have been transmitted by the originating station.
The community antenna service solicits subscribers by advertisements to the effect that the service brings them more television programs, naming the various popular ones, than they would otherwise be able to receive. At certain intervals, when the community antenna service has a temporarily vacated channel on its own system, it introduces music originating from its own tapes or records. Subscribers are charged a fee of approximately $100 for an initial hook-on to the system and a recurring monthly charge of $4-5 a month. The service is admittedly commercial and its operators expect to realize a profit.
The community antenna service cable is connected to the home sets of its subscribers in such manner that the subscriber may dial directly, without need of any other antenna at all, to any of the three major network programs being broadcast from the Salt Lake City stations.
It also picks up whatever local KLIX, Twin Falls, program happens to be on the air and channels it in similar manner to the home sets of its subscribers so that they can dial, if they choose, to KLIX, Twin Falls. In such case, however, the KLIX signal is receivable on a channel different than the channel on which KLIX is actually broadcasting.
It is possible for community antenna subscribers to view KLIX on its own channel but in order to do so the subscriber would have to disconnect his community antenna service attachment and receive the local KLIX signal and program by use of rabbit ear or roof aerial antenna—such as would be used for local reception if there were no community antenna service attachment. There is, however, little occasion for this inconvenient procedure among subscribers because they are able by means of the attachment to dial directly, without any kind of home antenna, not only to any of the three Salt Lake network broadcast programs, but also to KLIX, Twin Falls, programs as rechanneled into their sets by the service.
KLIX does not object to the CATV pick-up of its local KLIX signal so long as the CATV pick-up does not diminish the quality of the signal. The pick-up of the KLIX signal, as rechanneled into home sets through the community antenna service, presents to the viewer, who chooses to dial to it, the identical KLIX, Twin Falls, programs on the air at the time, including, of course, such local commercials on behalf of Twin Falls sponsors and advertisers as KLIX inserts in and after the network programs.
KLIX does, however, object to the pick-up by the community antenna service of the Salt Lake City signals for distribution of the Salt Lake network programs to its subscriber sets simultaneously with rebroadcast by KLIX of the same network program.
Such a duplication of such network programs to community antenna subscribers enables them to choose among Salt Lake City network programs simultaneously on the air with the same network programs as rebroadcast by KLIX.
The basis of the KLIX objection to such duplication is the fact that, when the network program is viewed directly as it is broadcast from Salt Lake City, it appears to the viewer with commercials inserted, not by KLIX for its local sponsors, but by the various...
To continue reading
Request your trial
-
United Artists Television, Inc. v. Fortnightly Corporation
...denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963); Lilly v. United States, 238 F.2d 584 (4th Cir. 1956); Cable Vision, Inc. v. KUTV, Inc., 211 F. Supp. 47 (D.Idaho 1962), rev'd and remanded, 335 F.2d 348 (9th Cir. 1964), cert. denied sub nom. Klix Corp. v. Cable Union, Inc., 379 U.S......
-
Cable Vision, Inc. v. KUTV, INC.
...with the KLIX airings. An extended trial was had. The district judge rendered his decision by a written opinion reported in 211 F.Supp. 47 (D.C.Ida.1962). As a preliminary issue and before reaching the merits the District Court concluded that Congress had not pre-empted the adjustment of pr......
-
United Artists Television, Inc. v. Fortnightly Corp.
...e. g., United States v. Radio Corp. of America, 358 U.S. 334, 348-352, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959); Cable Vision, Inc. v. KUTV, Inc., 211 F.Supp. 47, 56-58 (D.Idaho 1962), rev'd on other grounds, 335 F.2d 348 (9 Cir. 1964), cert. denied sub nom. Klix Corp. v. Cable Vision, Inc., 379 ......
-
Ashley v. Southwestern Bell Tel. Co., Civ. A. No. 76 CA 31.
...under the Communications Act, the Act was not designed as a new code for the adjustment of private rights. Cable Vision, Inc. v. KUTV, Inc., 211 F.Supp. 47, 56-57 (D.Idaho 1962) rev'd on other grounds, 335 F.2d 348 (9th Cir. 1964) cert. den. 379 U.S. 989, 85 S.Ct. 700, 13 L.Ed.2d 609 (1965)......