Times Mirror Co. v. Division of Public Utility Control

• Decision Date: 27 March 1984
• Docket Number: 12045,Nos. 12039,s. 12039
• Citation: 192 Conn. 506,473 A.2d 768
• Court: Connecticut Supreme Court
• Parties: The TIMES MIRROR COMPANY et al. v. DIVISION OF PUBLIC UTILITY CONTROL et al.

Page 768

473 A.2d 768

192 Conn. 506

The TIMES MIRROR COMPANY et al. v. DIVISION OF PUBLIC UTILITY CONTROL et al.

Nos. 12039, 12045.

Supreme Court of Connecticut.

Argued Jan. 4, 1984.

Decided March 27, 1984.

Elliot F. Gerson, Deputy Atty. Gen., with whom were William B. Gundling, Asst. Atty. Gen., and, on the brief, Joseph I Lieberman, Atty. Gen., and Robert S. Golden, Jr., Asst. Atty. Gen., for appellant (named defendant).

Barry S. Zitser, Hartford, consumer counsel, for appellant (defendant div. of consumer counsel).

George H. Shapiro, Washington, D.C., of the Dist. of Columbia bar, with whom were James J. Kennelly, Bloomfield, Howard L. Slater, Hartford, and, on the brief, Barry S. Feigenbaum, Hartford, for appellees (plaintiffs).

Milton Sorokin, Ethel S. Sorokin, and Richard C. Robinson, Hartford, filed a brief as amici curiae.

Before PETERS, ARTHUR H. HEALEY, PARSKEY, GRILLO and SPADA, JJ.

PETERS, Associate Justice.

The sole issue in this appeal is whether the Federal Communications Commission has preempted state regulation of cross-ownership of cable television stations and newspapers. The present proceeding was initiated by a motion filed by the Division of Consumer Counsel (DCC) asking the Department of Public Utility Control (DPUC) to investigate the suitability of control by the Times Mirror Company (Times Mirror) of two Connecticut community antenna television (CATV) systems. The motion was based upon Times Mirror's anticipated purchase of a local newspaper, the Hartford Courant (Courant). The DPUC, after full hearings, determined on March 7, 1980, that the cross-ownership of cable television stations and a newspaper in the same geographic area was not in the public interest and ordered revocation of the two CATV franchises unless Times Mirror divested itself of its ownership of the Courant by April 1, 1981. This order was stayed pending judicial review. The plaintiffs, Times Mirror and its subsidiaries, ¹ successfully appealed to the trial court from the decision of the DPUC. That court concluded that the DPUC order was invalid because of preemption by the federal regulatory scheme of the Federal Communications Commission (FCC). Upon the granting of certification by this court, the defendants DPUC and DCC each took a further appeal here. ² We find error and remand for further proceedings. ³

There is no dispute about the facts that pertain to this appeal. Since early in 1979, Times Mirror has owned all of the stock of Communications Properties, Inc. (CPI). CPI, in turn, owns 90 percent of the voting stock of Hartford CATV, Inc. (HCTV) and, through a wholly owned subsidiary, 95 percent of the voting stock of Telesystems of Connecticut, Inc. (TOC). In accordance with General Statutes § 16-331, ⁴ the DPUC had previously granted HCTV and TOC separate franchises to provide cable television, the former for the towns of Hartford, West Hartford, East Hartford, Windsor, Bloomfield and Simsbury, and the latter for the towns of Meriden, Southington and Cheshire. When the DPUC approved acquisition of CPI by Times Mirror in 1978, ⁵ the DPUC expressly noted that Times Mirror did not, at that time, own or control any newspaper, radio or television stations in the franchise areas of HCTV or TOC. The DPUC specifically ordered Times Mirror thereafter to inform the commission "of any and all contemplated acquisitions of Connecticut media." On July 12, 1979, Times Mirror notified the DPUC of its anticipated purchase of the Hartford Courant, a newspaper with extensive circulation throughout the state of Connecticut, including significant circulation in the same market areas served by the two cable franchises. Subsequent to notification of the DPUC, Times Mirror completed its acquisition of the Courant.

Connecticut has regulated cable television systems, formally known as community antenna television systems, since the enactment in 1963 of General Statutes § 16-330 et seq. The legislature has empowered the DPUC and predecessor commissions ⁶ to grant CATV franchises upon a finding of public convenience and necessity, and has declared a CATV system to be a public service company. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 330, 269 A.2d 276 (1970). For present purposes, we may assume that the DPUC has plenary authority to consider the suitability of cross-ownership by Times Mirror of HCTV and TOC on the one hand, and the Courant on the other, unless this state's regulation of cross-ownership is preempted by federal action taken by the FCC.

The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. U.S. Const., art. VI. ⁷ As the United States Supreme Court has recently reiterated, "state law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. [ Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, --- U.S. ----, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983) ]; Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 [102 S.Ct. 3014, 3022, 73 L.Ed.2d 664] (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 [83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248, reh. denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082] (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941)." Silkwood v. Kerr-McGee Corporation, --- U.S. ----, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). Regulations promulgated by federal administrative agencies, if within the agency's authorized scope of discretion, have the same preemptive effect as acts of Congress. Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).

In the determination of whether state law has been preempted, the Supreme Court of the United States has in recent years retreated from its earlier view that there was no room for any state regulation of matters already regulated by the federal government. See Tribe, American Constitutional Law 377-79. State law is today preempted " 'only to the extent necessary to protect the achievement of the aims of' the federal law." De Canas v. Bica, 424 U.S. 351, 357-58 n. 5, 96 S.Ct. 933, 937-38 n. 5, 47 L.Ed.2d 43 (1976); Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389-90, 38 L.Ed.2d 348 (1973). The governing federal principle now is that "federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons--either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. 142, 83 S.Ct. 1217. "[C]ourts should not readily infer that Congress has deprived states of the power to act on interests 'deeply rooted in local feeling and responsibility' which only peripherally concern an area controlled by nonconflicting federal legislation. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243-44, 79 S.Ct. 773 [778-79], 3 L.Ed.2d 775 (1959)." Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 294, 439 A.2d 997 (1981); see also Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 338-39, 269 A.2d 276 (1970).

In order to determine whether Connecticut regulation of cable television cross-ownership has been preempted by the action of the FCC, we must decide, in accordance with these principles, whether Congress has evidenced an intent to occupy the field, or whether state regulation conflicts with federal regulation. It is useful to examine these two prongs of preemption law separately.

The question of the extent to which cable television is exclusively in the federal regulatory domain has not often been addressed. The Supreme Court of the United States has held that the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., confers upon the FCC "a circumscribed range of power to regulate cable television"; FCC v. Midwest Video Corporation, 440 U.S. 689, 696, 99 S.Ct. 1435, 1439, 59 L.Ed.2d 692 (1979). The FCC itself, in its principal over-all review of cable television, has acknowledged that its jurisdiction is concurrent with that of state and local governments and has sought to implement what it has characterized as "a deliberately structured dualism." Cable Television Report and Order, 36 F.C.C.2d 143, 207 (1972). Because regulation of cable television is not an area of the law inherently requiring national uniformity, in the absence of express congressional preemption, we held in 1970, relying on TV Pix, Inc. v. Taylor, 304 F.Sup. 459, 464-65 (D.Nev.1968), aff'd without opinion, 396 U.S. 556, 90 S.Ct. 749, 24 L.Ed.2d 746 (1970), that the FCC had not acted to assert exclusive jurisdiction over cable television. Connecticut Television, Inc. v. Public Utilities Commission, supra, 159 Conn. 340, 269 A.2d 276.

The plaintiffs urge us nonetheless to find a federal intent to occupy the field, because they argue that the relevant field is not cable television as a whole but rather media cross-ownership. Identification of the appropriate field is a question of some difficulty. ⁸ In Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, --- U.S. ----, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983), the court noted that Congress...