Chesapeake and Potomac Telephone Co. of Virginia v. U.S.
| Decision Date | 21 November 1994 |
| Docket Number | 93-2341,Nos. 93-2340,s. 93-2340 |
| Citation | 42 F.3d 181 |
| Parties | , 1994-2 Trade Cases P 70,814 The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA; Bell Atlantic Video Services Company; Bell Atlantic Corporation; Chesapeake and Potomac Telephone Company; C & P Telephone Company of Maryland; the Chesapeake and Potomac Telephone Company of West Virginia; the Diamond State Telephone Company; the Bell Telephone Company of Pennsylvania; New Jersey Bell Telephone Company, Plaintiffs-Appellees, v. UNITED STATES of America; Federal Communications Commission; Janet Reno, in her official capacity as Attorney General of the United States, Defendants-Appellants, and The National Cable Television Association, Incorporated, Defendant. Consumer Federation of America; Virginia Citizens Consumer Council; Newspaper Association of America; Virginia Press Association; Computer & Communications Industry Association; Mets Fans United/Virginia Consumers for Cable Choice, et al.; Citizens for a Sound Economy Foundation; the American Legislative Exchange Council; the Competitive Enterprise Institute; the United States Telephone Association; Ameritech Corporation; Bellsouth Corporation; GTE Service Corporation, on behalf of its affiliated domestic operating companies; NYNEX Corporation; Pacific Telesis Group; Rochester Telephone Corporation; Southwestern Bell Corporation; US West Incorporated; Telecommunications Industry Association, Fiber Optics Division, Amici Curiae. The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA; Bell Atlantic Corporation; Bell Atlantic Video Services Company; Chesapeake and Potomac Telephone Company; the Chesapeake and Potomac Telephone Company of Maryland; the Chesapeake and Potomac Telephone Company of West Virginia; the Diamond State Telephone Company; the Bell Telephone Company of Pennsylvania; New Jersey Bell Telephone Company, Plaintiffs-Appellees, v. The NATIONAL CABLE TELEVISION ASSOCIATION, INCORPORATED, Defendant-Appellant, and United States of America; Federal Communications Commission; Janet Reno, in her of |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Bruce G. Forrest, Civil Div., U.S. Dept. of Justice, Washington, DC, for governmental appellants; H. Bartow Farr, III, Klein, Farr, Smith & Taranto, Washington, DC, for appellant Cable Television Ass'n. Laurence H. Tribe, Cambridge, MA, for appellees. ON BRIEF: Frank W. Hunger, Asst. Atty. Gen., Douglas N. Letter, James J. Gilligan, Civil Div., U.S. Dept. of Justice, Washington, DC; Renee Light, Acting Gen. Counsel, Daniel M. Armstrong, Laurence N. Bourne, Sara F. Seidman, Office of Gen. Counsel, F.C.C., Washington, DC, for governmental appellants; Richard G. Taranto, Klein, Farr, Smith & Taranto, Washington, DC; Daniel L. Brenner, David L. Nicoll, National Cable Television Ass'n, Inc., for appellant Cable Television Ass'n. Jonathan S. Massey, Cambridge, MA; James R. Young, John Thorne, Michael E. Glover, Warener F. Brundage, Jr., Washington, DC; Robert A. Levetown, Arlington, VA; Paul T. Cappuccio, Jay P. Lefkowitz, Alex M. Azar, Kirkland & Ellis, Washington, DC; Wiley R. Wright, Jr., Ronald L. Lord, Hazel & Thomas, P.C., Alexandria, VA, for appellees. Richard E. Wiley, Michael Yourshaw, William B. Baker, Daniel E. Troy, Frank Winston, Jr., Wiley, Rein & Fielding, Washington, DC; John F. Sturm, Newspaper Ass'n of America, Washington, DC, for amici curiae Newspaper Ass'n of America and Virginia Press Ass'n. Bradley Stillman, Washington, DC; Andrew Jay Schwartzman, Media Access Project, Washington, DC, for amici curiae Consumer Federation of America and Virginia Citizens Consumer Council. John Haven Chapman, Brian E. Moran, Chapman, Moran, Hubbard, Glazer & Zimmerman, Washington, DC, for amicus curiae Computer & Communications Industry Ass'n. Henry M. Rivera, Alan S. Weitz, Rodney L. Joyce, Ginsburg, Feldman & Bress, Chartered, Washington, DC, for amici curiae Mets Fans United/Virginia Consumers for Cable Choice, et al. Koteles Alexander, Jonathan W. Emord, Alexander, Gebhardt, Aponte & Marks, Silver Spring, MD; James L. Gattuso, Michele A. Isele, Citizens for a Sound Economy Foundation; Sam Kazman, Competitive Enterprise Institute, Washington, DC, for amici curiae Citizens for a Sound Economy Foundation, et al. Michael W. McConnell, Alan E. Untereiner, Mayer, Brown & Platt, Washington, DC; Walter H. Alford, William B. Barfield, Atlanta, GA; Martin T. McCue, Washington, DC; Thomas P. Hester, Thomas Quarles, Chicago, IL, for amici curiae U.S. Telephone Ass'n, et al. James R. Hobson, Jeffrey O. Moreno, Michael G. Kane, Donelan, Cleary, Wood & Maser, P.C., Washington, DC, for amicus curiae Telecommunications Industry Ass'n.
Before RUSSELL and MICHAEL, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge TILLEY joined. Judge MICHAEL wrote a separate opinion concurring in part and concurring in the judgment.
At issue in this case is the constitutionality of 47 U.S.C. Sec. 533(b), which provides, in pertinent part:
(1) It shall be unlawful for any common carrier, subject in whole or in part to subchapter II of this chapter, to provide video programming directly to subscribers in its telephone service area, either directly or indirectly through an affiliate owned by, operated by, controlled by, or under common control with the common carrier.
(2) It shall be unlawful for any common carrier, subject in whole or in part to subchapter II of this chapter, to provide channels of communication or pole line conduit space, or other rental arrangements, to any entity which is directly or indirectly owned by, operated by, controlled by, or under common control with such common carrier, if such facilities or arrangements are to be used for, or in connection with, the provision of video programming directly to subscribers in the telephone service area of the common carrier.
47 U.S.C. Sec. 533(b)(1), (2). 1 This provision, enacted as part of the Cable Communications Policy Act of 1984 (the "1984 Cable Act"), Pub.L. No. 98-549, 98 Stat. 2779 (), essentially prohibits local telephone companies from offering, with editorial control, cable television services to their common carrier subscribers. 2 In a thorough opinion, the district court found the statute to violate the First Amendment. Chesapeake & Potomac Tel. Co. v. United States, 830 F.Supp. 909 (E.D.Va.1993) ("C & P"). 3 For the reasons stated herein, we affirm.
The facts and background underlying this case, which the parties do not dispute, are presented fully in the opinion of the district court. We summarize them here.
Chesapeake and Potomac Telephone Company of Virginia ("C & P") applied for a cable franchise from the City of Alexandria ("City"). It is undisputed that the City denied this application solely upon its belief that any grant of such a franchise would violate 47 U.S.C. Sec. 533(b). Thereafter, C & P and Bell Atlantic Video Systems, both wholly-owned subsidiaries of Bell Atlantic Corporation, brought suit in federal district court in Virginia against the United States, the Federal Communications Commission ("FCC") and the Attorney General (collectively the "Government defendants") seeking to invalidate Section 533(b) as itself violative of the First Amendment and seeking to enjoin its enforcement. 4 Subsequently, the National Cable Television Association ("NCTA") sought, and was granted, permission to intervene as a defendant. Cross-motions for summary judgment were filed. Ultimately, the district court granted plaintiffs' motion for summary judgment. It declared 47 U.S.C. Sec. 533(b) unconstitutional both facially and as applied to plaintiffs and enjoined the Government defendants from enforcing the provision. 5
The Government defendants and the NCTA appeal the district court's judgment.
Before the specific contentions of the parties are addressed, a discussion, albeit truncated, of the history of regulation in this area will be helpful.
Although cable television has its origins in the 1940's, see Turner Broadcasting Sys., Inc. v. FCC, --- U.S. at ----, ----, 114 S.Ct. 2445, 2451, 129 L.Ed.2d 497 (1994), only by the late 1960's was the industry on the verge of true expansion, see C & P, 830 F.Supp. at 915. In those days, it was commonplace for companies to hang the coaxial cables through which they provided cable service or, as it was then called, community antenna television service ("CATV"), from utility poles. The FCC was concerned that local telephone companies, as monopolists and owners of these poles, would be in a position to obstruct or delay companies which were unaffiliated with the telephone companies, and who wished to provide cable television services, from entering that market. The FCC's initial response to this concern consisted solely of a requirement that a telephone company obtain certification, pursuant to 47 U.S.C. Sec. 214, 6 prior to constructing, acquiring or operating any video...
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