Community Television v. Wilkinson

• Decision Date: 10 April 1985
• Docket Number: C 83-0581A.,No. C 83-0551A,C 83-0551A
• Citation: 611 F. Supp. 1099
• Parties: COMMUNITY TELEVISION OF UTAH, INC., Community Cable of Utah, Inc., Utah Satellite, Inc., Wasatch Community T.V., Inc., and Connie R. Jones, Lynn F. Jones, Caroline A. Snow, Ralph McCleary, Kay Ulrich, Ed Ulrich, Wayne Williams, as individuals and as representatives of a class of persons similarly situated, and Home Box Office, Inc., Plaintiffs, v. Hon. David L. WILKINSON, Attorney General of the State of Utah, individually and in his official capacity and as a representative of the class of all persons empowered to enforce the Cable Television Programming Decency Act, Defendants.
• Court: U.S. District Court — District of Utah

611 F. Supp. 1099

COMMUNITY TELEVISION OF UTAH, INC., Community Cable of Utah, Inc., Utah Satellite, Inc., Wasatch Community T.V., Inc. and Connie R. Jones, Lynn F. Jones, Caroline A. Snow, Ralph McCleary, Kay Ulrich, Ed Ulrich, Wayne Williams, as individuals and as representatives of a class of persons similarly situated and Home Box Office, Inc., Plaintiffs, v. Hon. David L. WILKINSON, Attorney General of the State of Utah, individually and in his official capacity and as a representative of the class of all persons empowered to enforce the Cable Television Programming Decency Act, Defendants.

Nos. C 83-0551A, C 83-0581A.

United States District Court, D. Utah, C.D.

April 10, 1985.

Bryan L. McDougal, Robert D. Sherlock, Patricia A. Rorke, and Steven H. Blum, Salt Lake City, Utah, for plaintiffs.

Donald B. Holbrook and LeGrand R. Curtis, Salt Lake City, Utah, and George H. Shapiro and James P. Mercurio, Washington, D.C., for plaintiff-intervenor Home Box Office, Inc.

Robert N. Parrish, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah, and Charles A. Hobbs and Jerry R. Goldstein, Washington, D.C., for defendants.

The court accepted amicus briefs from Morality in Media, Inc., the Nat. Cable Television Ass'n, Inc., the F.C.C., and Citizens for Positive Community Values.

ALDON J. ANDERSON, Senior District Judge.

INTRODUCTION

On April 20, 1983, the Utah State Legislature passed the Cable Television Programming Decency Act ("Cable Decency Act"). Utah Code Ann. §§ 76-10-1701 to -1708 (Supp.1983). The Act gives certain state officials authority to bring nuisance actions against anyone who continuously and "knowingly distributes indecent material within this state over any cable television system or pay-for-viewing television programming." Id. § 76-10-1703. The Act defines "indecent material" as follows:

a visual or verbal depiction, display, representation, dissemination, or verbal description of:

(a) A human sexual or excretory organ or function; or

(b) A state of undress so as to expose the human male or female genitals, pubic area, or buttocks, with less than a fully opaque covering, or showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple; or

(c) An ultimate sexual act, normal or perverted, actual or simulated; or

(d) Masturbation

which the average person applying contemporary community standards for cable television or pay-for-viewing television programming would find is presented in a patently offensive way for the time, place, manner and context in which the material is presented.

Id. § 76-10-1702(4).

On April 21, 1983, the plaintiffs Community Television of Utah, Inc., Community Cable of Utah, Inc., Utah Satellite, Inc., and Wasatch Community TV, Inc. filed this action. Claiming that the Act infringes upon their first amendment rights, these cable operator plaintiffs sought declaratory and injunctive relief. They named Attorney General David L. Wilkinson as defendant in his individual and official capacities and as a representative of the class of state officials empowered to enforce the Act. Because the plaintiffs raised important constitutional issues, the Attorney General agreed not to enforce the Act pending resolution of this case.

The court consolidated the original action with a separate action brought by several cable TV subscribers and allowed Home Box Office, Inc. to intervene as a plaintiff. The court also accepted amicus briefs from Morality in Media, Inc. and the National Cable Television Association, Inc. All plaintiffs moved jointly for summary judgment. The defendants opposed the plaintiffs' motion and filed a cross motion for summary judgment. The court heard oral argument on May 25, 1984 and took both motions under advisement.

As this court prepared to rule on the summary judgment motions, the United States Supreme Court handed down its decision in Capital Cities Cable, Inc. v. Crisp, ___ U.S. ___, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). That case involved the scope of the states' powers to regulate cable TV. The parties were asked to submit briefs explaining how Capital Cities might affect the decision in this case. The court accepted amicus briefs on the same issue from the Federal Communications Commission, Morality in Media, Inc. and Citizens for Positive Community Values. On August 10, 1984, the court heard oral argument on the issues of federal pre-emption raised by the Capital Cities case.

After carefully considering both the preemption and first amendment issues, the court prepared to rule on the motions. In October 1984, Congress passed the Cable Communications Policy Act ("Policy Act"), a statute which changed the regulatory structure of the cable television industry. The court requested both sides to submit briefs explaining how the new law would affect the pre-emption issue. On November 13, 1984, the parties completed this briefing. Being fully advised, the court now enters this Memorandum Opinion and Order for Summary Judgment.

I. FEDERAL PRE-EMPTION

A. The Capital Cities Case

In Capital Cities Cable, Inc. v. Crisp, the U.S. Supreme Court considered whether Oklahoma could prevent cable television operators from retransmitting alcoholic beverage advertisements originally transmitted from other states. In a unanimous opinion the Supreme Court held that federal law pre-empted the Oklahoma ban. The Court found that the FCC had expressly pre-empted state regulation of the "operational aspects" of cable television. The FCC's exclusive power included authority to regulate the selection of signals cable operators may carry. In turn, the FCC gave state and local authorities responsibility to regulate various local incidents of cable operations. This local power included authority to grant franchises, delineate franchise areas, regulate the construction of cable facilities and maintain rights of way. 104 S.Ct. at 2702.

To support its conclusion, the Court invoked that branch of the pre-emption doctrine that rests on congressional intent. Pre-emption is effective "when Congress, in enacting a federal statute, has expressed a clear intent to pre-empt state law." Id. at 2700 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). The Court noted that federal regulations pre-empt state law as effectively as federal statutes if the agency decision to pre-empt "`represents a reasonable accommodation of conflicting policies' that are within the agency's domain." 104 S.Ct. at 2701 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). The Court found that the agency's intent was clear: "over the past twenty years, pursuant to its delegated authority under the Communications Act, the FCC has unambiguously expressed its intent to pre-empt any state or local regulation of the entire array of signals carried by cable television systems." 104 S.Ct. at 2701. This intent to pre-empt extended to power over both non-broadcast signals (commonly described as "pay cable") and retransmitted broadcast signals. Id. at 2702.

The Court also explained the reasoning supporting the Commission's pre-emption decision. The Commission values diverse programming, and it has tried to give households access to television services presently unavailable from local broadcasts. State and local regulation of program offerings would interfere with this federal regulatory scheme:

Consistent with its congressionally defined charter to "make available, so far as possible, to all the people of the United States a rapid, efficient, Nationwide and world-wide wire and radio communication service...," 47 U.S.C. § 151, the FCC has sought to ensure that "the benefits of cable communications become a reality on a nationwide basis." Report and Order, 54 F.C.C.2d, at 865. With that end in mind, the Commission has determined that only federal pre-emption of state and local regulation can assure cable systems the breathing space necessary to expand vigorously and provide a diverse range of program offerings to potential cable subscribers in all parts of the country. While that judgment may not enjoy universal support, it plainly represents a reasonable accommodation of the competing policies committed to the FCC's care and we see no reason to disturb the agency's judgment. And, as we have repeatedly explained, when federal officials determine, as the FCC has here, that restrictive regulation of a particular area is not in the public interest, "States are not permitted to use their police power to enact such a regulation." Ray v. Atlantic Richfield Co., 435 U.S. 151, 178 98 S.Ct. 988, 1004, 55 L.Ed.2d 179 (1978); other citations omitted.

Id. at 2705.

In Capital Cities, the Supreme Court did not explicitly consider whether state indecency regulations were pre-empted; the Court discussed program regulation in general. In their original pre-emption briefs, the plaintiffs relied on the Supreme Court's sweeping language and concluded that the FCC had pre-empted state indecency regulations. The defendants disagreed, arguing that indecency is a special area appropriately reserved for state regulation.

When Congress passed the new Policy Act, this question of FCC intent became moot. Before Congress enacted this statute, the courts had to rely upon FCC pronouncements to determine the scope of preemption. Better authority is now available. In the Policy Act, Congress precisely delineated the spheres of state and federal authority over cable television programming. Courts can now refer to congressional directives to determine whether state laws are pre-empted. The court therefore turns to the Policy Act to resolve the pre-emption issue.

B. The Cable Communications Policy Act of 1984

The Cable Communications Policy Act of 1984 is the first federal statute to establish a comprehensive regulatory scheme for the cable industry. The provisions of the Policy Act relevant to this case...