Tele-Communications of Key West v. United States

• Decision Date: 28 December 1983
• Docket Number: Civ. A. No. 83-3722.
• Citation: 580 F. Supp. 11
• Parties: TELE-COMMUNICATIONS OF KEY WEST, INC., Plaintiff, v. The UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

580 F. Supp. 11

TELE-COMMUNICATIONS OF KEY WEST, INC., Plaintiff, v. The UNITED STATES of America, et al., Defendants.

Civ. A. No. 83-3722.

United States District Court, District of Columbia.

December 28, 1983.

Jay L. Cohen, Washington, D.C., for plaintiff.

Stuart Newberger, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM

GESELL, District Judge.

Plaintiff, Tele-Communications of Key West, Inc. (TCI), seeks an order from this Court preliminarily enjoining the United States from refusing it full access to Homestead Air Force Base after December 31, 1983, and from requiring TCI to remove its property from the base promptly after that date. Defendants have moved to dismiss. The issues presented are now before the Court after full argument and submission of briefs and affidavits.¹

TCI is currently the sole cable television company serving Homestead Air Force Base, having been granted access to the base pursuant to an exclusive long-term contract which expires on December 31, 1983. Acting under the authority of Air Force Regulation (AFR) 70-3, the government in mid-1983 solicited bids for a further exclusive 10-year contract to commence at the expiration of plaintiff's contract. The bid solicitation outlined procedures for evaluating bids based on cost and the availability/variety of programming, with the latter factor weighted according to the preferences of base residents as determined by an opinion poll. Competitive bids were received from eight potential cable television suppliers. The winning offer was submitted by International Cable Consultants (ICC); plaintiff's offer was ranked last of the eight bids submitted. On August 17, 1983, ICC was awarded a 10-year franchise agreement, which granted it the exclusive right to enter the base for the purpose of providing cable television service to base facilities and to individual dwellings on the base.

Although it lost the bid, TCI seeks to continue to solicit and serve existing and future subscribers using the cables and facilities it was allowed to establish on the base under the prior contract. It does not challenge the bid process directly, however, but instead contends that the First Amendment to the Constitution guarantees it continued access to the base and that the Air Force's order directing TCI to cease operations and remove its cables and equipment from the base at the expiration of its current contract violates its rights of free speech and due process, as well as its rights under the Sherman Act and 26 U.S.C. § 240, which governs easement rights on military installations.

Homestead Air Force Base, located approximately 35 miles southwest of Miami, Florida, is entirely dedicated to military purposes. Three F-4 fighter-bomber squadrons are assigned to the base. The base serves as an air crew training center and is also charged with the air defense of southern Florida. Access to the base is restricted and a pass is required to enter the base.

Cable television can serve the base only by hanging cables on utility poles the Air Force has erected along its right-of-ways. Individual subscribers are reached by use of "drop cables" which run from the main cables to individual residences. These main cables and drop cables are installed and maintained by the cable company at its expense. Presently TCI has such cables in place, and ICC is in the process of installing its own separate cable system on the same utility poles. In addition to its cable equipment, TCI currently maintains a physical plant on the base which occupies approximately one-third acre of government land.

The Court readily accepts TCI's contention that as a provider of cable television it enjoys the protections of the First Amendment. Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). While, as the government points out, TCI currently produces no original programming but simply serves as a "conduit" for material produced by others, it has the potential to create original productions and, at the very least, performs the editorial function of choosing which programs of existing broadcasters it will provide to its subscribers. Moreover, while its programming selections largely duplicate that which ICC intends to provide, TCI offers at least one distinctive religious channel not supplied by ICC and apparently desired by some of its present subscribers.

Starting from this premise, TCI argues that it has a right to continued access to the base in order to provide cable television to any subscribers it can enlist. TCI suggests that the present situation is no different from competition between two newspapers, see Home Box Office, 567 F.2d at 46, and that the base's utility poles and other facilities can bear the burden of two cable systems as easily as one. While plaintiff's argument is superficially appealing, however, it is inconsistent with established First Amendment precedents.

Plaintiff seeks access to a military installation dedicated to military use. The government clearly enjoys broad power to regulate access to military bases, even where First Amendment interests are involved.

A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of its commanding officer summarily to exclude civilians from the area of his command." Cafeteria Workers v. McElroy, 367 U.S. 886, 893 81 S.Ct. 1743, 1747, 6 L.Ed.2d 1230 1961. The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false.

Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976).

Unlike delivery of newspapers to a military base, granting access to multiple cable television companies would involve significant burdens on the military installation and its mission, and would negate legitimate advantages the Air Force enjoys as a result of limiting access to a single such cable television firm.² The simple physical intrusion of a...