Century Communications Corp. v. F.C.C., s. 86-1683
| Decision Date | 11 December 1987 |
| Docket Number | Nos. 86-1683,87-1280 and 87-1301,s. 86-1683 |
| Citation | 835 F.2d 292 |
| Parties | , 56 USLW 2452, 14 Media L. Rep. 2049 CENTURY COMMUNICATIONS CORPORATION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Association of Independent Television Stations, Inc., Spanish International Communications Corp., Univision, Inc., The National Association of Broadcasters, Lincoln Broadcasting Co., National Cable Television Association, et al., Office of Communication of the United Church of Christ, Corporation for Public Broadcasting, National Association of Public Television, Public Broadcasting Service, National Broadcasting Co., Inc., Spanish International Communications Corp., Intervenors. Richard S. LEGHORN, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Corporation for Public Broadcasting, et al., Intervenors. HUBBARD BROADCASTING, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Corporation for Public Broadcasting, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John P. Cole, Jr., for joint petitioners, Century Communications Corp., et al. David M. Silverman also entered an appearance for joint petitioners, Century Communications Corp., et al.
David G. Rozzelle, with whom Marvin Rosenberg and Barry Lambergman, were on the brief for petitioner, Hubbard Broadcasting, Inc.
James L. Quarles, III, was on the brief for petitioner, Richard S. Leghorn.
Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., with whom Diane S. Killroy, Gen. Counsel, Gregory M. Christopher and C. Grey Pash, Counsel, F.C.C., were on the brief for respondents. Robert B. Nicholson and Laura Heiser, Attys., Dept. of Justice also entered appearances for respondents.
Henry Geller, with whom Donna Lampert and Andrew Schwartzman, were on the brief, for intervenor, United Church of Christ.
Michael S. Horne, with whom J. Laurent Scharff, James M. Smith and Henry L. Baumann, were on the brief, for intervenors, Nat. Ass'n of Broadcasters and Ass'n of Independent Television Stations, Inc. Julian L. Shepard and Molly Pauker also entered appearances for intervenor, National Ass'n of Broadcasters.
Arthur Pankopf, Susan Dillon, Baryn S. Futa, Martha M. Zornow, Paula A. Jameson and Nancy H. Hendry, were on the brief, for intervenors, Corp. for Public Broadcasting, et al.
Norman P. Leventhal, Raul R. Rodriquez, Sally A. Buckman, and Richard F. Swift, were on the joint brief for intervenors, Spanish Intern. Communications Corp., Nat. Independent Television Committee and Univision, Inc. Judith Whittaker, was on the brief, for intervenor, Spanish Intern. Communications Corp. Richard E. Wiley and John C. Quale, also entered appearances for intervenor, Spanish Intern. Communications Corp.
Michael D. Berg, entered an appearance for intervenor, Lincoln Broadcasting Co.
Jay E. Ricks, entered an appearance for intervenor, Nat. Cable Television Ass'n, Inc., et al.
Before WALD, Chief Judge, and MIKVA, Circuit Judge and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge WALD.
Two years ago, in Quincy Cable TV, Inc. v. Federal Communications Commission, 768 F.2d 1434 (D.C.Cir.1985), cert. denied sub. nom. National Association of Broadcasters v. Quincy Cable TV, Inc., 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 977 (1986), we struck down as violative of the first amendment the FCC's "must-carry" rules. Those rules required cable television operators, upon request and within the limits of their channel capacity, to transmit to their subscribers every over-the-air television broadcast signal that was "significantly viewed in the community" or otherwise considered "local" under the Commission's rules. See Quincy Cable TV, 768 F.2d at 1437. Today, we revisit this distinctive corner of first amendment jurisprudence, to evaluate the constitutional validity of the scaled-down must-carry rules adopted by the FCC following our decision in Quincy Cable TV. Although the FCC has eliminated the more extreme demands of its initial set of regulations, its arguments in this case leave us unconvinced that the new must-carry rules are necessary to advance any substantial governmental interest, so as to justify an incidental infringement of speech under the test set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Accordingly, we invalidate as incompatible with the first amendment this latest incarnation of the FCC's must-carry rules.
Since the mid-1960's, when the nascent cable television industry began to loom as a threat to ordinary broadcast television, the Federal Communications Commission has labored to protect the local broadcast media through regulation of the cable industry. The Commission's objective in these endeavors
was not merely to protect an established industry from the encroachment of an upstart young competitor, although such a result was clearly the byproduct of the regulatory posture that developed. Rather, the Commission took the position that without the power to regulate cable it could not discharge its statutory obligation to provide for "fair, efficient, and equitable" distribution of service among "the several States and communities." If permitted to grow unfettered, the Commission feared, cable might well supplant ordinary broadcast television. A necessary consequence of such displacement would be to undermine the FCC's mandate to allocate the broadcast spectrum in a manner that best served the public interest. In particular, if an unregulated, unlicensed cable industry were to threaten the economic viability of broadcast television, the Commission would be powerless to effect what it saw (and continues to see) as one of its cardinal objectives: the development of a "system of [free] local broadcasting stations, such that 'all communities of appreciable size [will] have at least one television station as an outlet for local self-expression.' "
Quincy Cable TV, 768 F.2d at 1439 (citations and footnote omitted). See also United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968) (); Amendment of Part 76 of the Commission's Rules Concerning Carriage of Television Broadcast Signals by Cable Television Systems, 1 F.C.C. Rcd 864 (1986) (hereinafter "Report and Order "), reconsid. denied, 2 F.C.C. Rcd 3593 , at paragraphs 1-29 (). 1
Must-carry rules in various forms have been major tools in this campaign to protect local broadcasting from cable. The FCC first introduced such rules in 1962, when it sought to impose a must-carry requirement as a condition for granting an application to construct a microwave system to transmit distant signals to a rural cable system. See Carter Mountain Transmission Corp., 32 F.C.C. 459 (1962), aff'd, 321 F.2d 359 (D.C.Cir.), cert. denied, 357 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963); see also Quincy Cable TV, 768 F.2d at 1440 n. 11. In time, the FCC developed a broader must-carry regime, generally requiring cable operators, "upon request, to carry any broadcast signal considered local under the Commission's complex formula." Quincy Cable TV, 768 F.2d at 1440. The philosophy behind these rules was
to assure that the advent of cable technology not undermine the financial viability of free, community-oriented television. If cable were to "drive out television broadcasting service ... the public as a whole would lose far more--in free service, in service to outlying areas, and in local service to outlying areas, and in local service with local control and selection of programs--than it would gain." The must-carry rules, together with a comprehensive body of related regulations, would channel the development of the nascent cable industry to limit the risks it might pose to conventional broadcasting, "society's chosen instrument for the provisions of video services."
Id. (citations omitted); see generally id. at 1440-43 ().
In 1985, this circuit faced for the first time the question whether the broad must-carry rules which had been in existence for nearly two decades were in harmony with the first amendment. Judge Wright's opinion for a unanimous panel in Quincy Cable TV held that they were not. As a threshold matter, we observed that our first amendment review of regulations burdening cable television was not governed by those cases, such as Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) and FCC v. League of Women Voters of California, 468 U.S 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984), upholding regulations on broadcast television. In reaching that conclusion, we noted "the Supreme Court's oft-repeated suggestion that the First Amendment tolerates far more intrusive regulation of broadcasters than of other media precisely because of the inescapable physical limitations on the number of voices that can simultaneously be carried over the electromagnetic spectrum." 768 F.2d at 1448. Wire-carried media like cable, of course, have no such limitations, and thus we found the "scarcity rationale" that the Supreme Court has used to justify broadcast television regulations to offer no succor to those seeking to establish the constitutional validity of cable television regulations. Id. at 1448-50.
Quincy Cable TV did not, however, establish the precise degree of first amendment protection enjoyed by cable operators. Although our opinion noted that some parallels existed between the must-carry regulations and regulations impinging...
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