Turner Broadcasting System, Inc. v. FCC, Civ. A. No. 92-2247

Decision Date05 January 1993
Docket Number92-2494,92-2558.,92-2292,Civ. A. No. 92-2247,92-2495
Citation810 F. Supp. 1308
CourtU.S. District Court — District of Columbia
PartiesTURNER BROADCASTING SYSTEM, INC., et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants. DANIELS CABLEVISION, INC., Plaintiff, v. UNITED STATES of America, Defendant. TIME WARNER ENTERTAINMENT COMPANY, L.P., Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants. NATIONAL CABLE TELEVISION ASSOCIATION, INC., Plaintiff, v. UNITED STATES of America, et al., Defendants. DISCOVERY COMMUNICATIONS, INC., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Bruce D. Sokler, Peter Kimm, Jr., Gregory A. Lewis, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Bertram W. Carp, Turner Broadcasting System, Inc., Washington, DC, Mary Ann Zimmer, Arts & Entertainment Network, New York City, Debbie Lee, Black Entertainment Television, Washington, DC, Christopher Fager, E! Entertainment Television, Inc., Los Angeles, CA, Jane Tollinger, Hearst/ABC-Viacom Entertainment Services, Astoria, NY, Louis A. Isakoff, International Family Entertainment, Inc., Virginia Beach, VA, Bruce D. Collins, National Cable Satellite Corp., Washington, DC, Neal S. Grabell, QVC Network, Inc., West Chester, PA, Louis F. Ryan, The Travel Channel, Inc., Atlanta, GA, Stephen A. Brenner, USA Networks, New York City, for Turner Broadcasting.

John P. Cole, Jr., John D. Seiver, Cole, Raywid & Braverman, Washington, DC, for Daniel Cablevision.

Brian Conboy, Wilkie Farr & Gallagher, Washington, DC, Robert D. Joffe, Stuart W. Gold, Stephen S. Madsen, Cravath, Swaine & Moore, New York City, for Time Warner.

H. Bartow Farr, III, Joel I. Klein, Klein, Farr, Smith & Taranto, Daniel L. Brenner, Michael S. Schooler, Diane B. Burstein, National Cable Television Association, Inc., Washington, DC, for National Cable Television.

Allan A. Tuttle, Garret G. Rasmussen, Kenneth L. Glazer, G. Kendrick MacDowell, Patton, Boggs & Blow, John R. Tyler, Theodore C. Hirt, U.S. Dept. of Justice, Civil Div., Washington, DC, for Discovery.

Rex E. Lee, Robert A. Beizer, Carter G. Phillips, Mark D. Hopson, Sidely & Austin, James J. Popham, Association of Independent, Television Stations, Inc., Washington, DC, for Association of Independent Television Stations, Inc.

Bruce J. Ennis, Jr., David W. Ogden, Donald B. Verrilli, Jr., Ann M. Kappler, Jenner & Block, Henry L. Baumann, Benjamin F.P. Ivins, Jack N. Goodman, National Association of Broadcasters, Washington, DC, for Nat. Ass'n of Broadcasters.

Andrew Jay Schwartzman, Gigi B. Sohn, Media Access Project, Washington, DC, for Consumer Federation of America, National Council of Senior Citizens, International Association of Machinists and Aerospace Workers, AFL-CIO, United Church of Christ.

Jonathan D. Blake, Gregory M. Schmidt, Mark H. Lynch, Covington & Burling, Marilyn Mohrman-Gillis, Association of America's Public Television Stations, Washington, DC, Paula A. Jameson, Nancy Howell Hendry, Public Broadcasting Service, Alexandria, VA, Paul E. Symczak, Corporation for Public Broadcasting, Washington, DC, for Association of America's Public Television Stations, PBS, Corporation for Public Broadcasting.

Henry A. Solomon, Theodore D. Kramer, Haley, Bader & Potts, Arlington, VA, for Community Broadcasters Ass'n.

Roy F. Perkins, Herndon, VA, for Triplett & Associates.

Robert T. Perry, Brooklyn, NY, Paul Broyles, International Broadcasting Network, Houston, TX, for Local Community Broadcasters.

Steven J. Hyman, Robert I. Freedman, Janet C. Neschis, Paul H. Levinson, Leavy, Rosenweig & Hyman, New York City, Jonathan L. Wiener, Goldberg, Godles, Wiener & Wright, Washington, DC, for National Interfaith Cable Coalition.

Robert Alan Garrett, Arnold & Porter, Washington, DC, for Local Governments (National League of Cities, et al.

John B. Richards, Shelia A. Millar, Arthur S. Garrett III, Keller and Heckman, Washington, DC, for National Rural Tele-communications Co-op.

Theodore D. Kramer, Haley, Bader & Potts, Arlington, VA, for TV 14, Inc.

Philip R. Hochberg, James E. Meyers, Baraff, Koerner, Olender & Hochberg, P.C., Washington, DC, for Encore Media Corp.

Teresa D. Baer, Miller & Holbrooke, Washington, DC, Edward P. Kearse, John L. Grow, New York State Com'n on Cable Television, Albany, NY, for National Ass'n of State Cable Agencies.

Nicholas W. Allard, Paul J. Sinderbrand, Keck, Mahin & Cate, Washington, DC, for Wireless Cable Ass'n Intern., Inc.

Colby M. May, May & Dunne, Chartered, Washington, DC, for Trinity Christian Center, etc.

James Johnston, Washington, DC, amicus curiae, for Atlanta Interfaith Broadcasters.

Larraine S. Holbrooke, Tillman L. Lay, Joseph Van Eaton, Miller & Hollbrooke, James N. Horwood, Spiegel & McDiarmid, Washington, DC, James Hahn, Pedro B. Echeverria, City of Los Angeles, Los Angeles, CA, amicus curiae, for City of Los Angeles, etc.

Norman M Sinel, Robert Alan Garrett, Preeta D. Bansal, Arnold & Porter, Washington, DC, amicus curiae, for City of New York.

Alan K. Weitz, Ginsburg Feldman & Bress, Washington, DC, Andrew J. Levander, Shari L. Steinberg, Adam B. Rowland, Michael Cohen, New York City, amicus curiae, for Liberty Cable Co.

Before WILLIAMS, Circuit Judge, and SPORKIN and JACKSON, District Judges.

Dissenting Opinion of Judge Jackson January 5, 1993.

STEPHEN F. WILLIAMS, Circuit Judge.

Plaintiffs are cable television programmers and system operators who challenge the constitutionality of various sections of the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. No. 102-385, 106 Stat. 1460. The question immediately before us are whether this three-judge court, constituted pursuant to § 23 of the Cable Act and 28 U.S.C. § 2284, must or may exercise jurisdiction over all the First Amendment and other constitutional claims that certain plaintiffs have filed attacking provisions of the Act, or only over challenges to §§ 4 and 5, the ones identified by Congress in § 23 as calling for use of a three-judge court; and, if the court may (but need not) exercise jurisdiction, whether it should do so. We conclude that the court at most may have discretion to entertain the attacks on parts of the Act other than §§ 4 and 5; assuming it has such discretion, we believe that prudential factors argue for our exercising it against jurisdiction.

* * * * * *

The 1992 Cable Act contains 28 sections, of which perhaps 25 may be viewed as substantive, out of which some 14 are attacked by one or more parties. To give an idea of the breadth of the challenges, we here list the challenged sections, identifying them by their number and caption in the Act: Section 3, Regulation of Rates; Section 4, Carriage of Local Commercial Television Signals; Section 5, Carriage of Noncommercial Stations; Section 6, Retransmission Consent for Cable Systems; Section 7, Award of Franchises; Promotion of Competition; Section 9, Leased Commercial Access; Section 10, Children's Protection From Indecent Programming on Leased Access Channels; Section 11, Limitations on Ownership, Control, and Utilization; Section 15, Notice to Cable Subscribers on Unsolicited Sexually Explicit Programs; Section 19, Development of Competition and Diversity in Video Programming Distribution; Section 24, Limitation on Franchising Authority Liability; and Section 25, Direct Broadcast Satellite Service Obligations. This summary understates the scope of the plaintiffs' additional claims, as they often launch attacks on more than one subsection of a single section.

Section 23 of the Act contains explicit provision for review of constitutional claims against §§ 4 and 5, amending § 635 of the Communications Act of 1934, 47 U.S.C. § 555, to add the following subsection (c):

(1) Notwithstanding any other provision of law, any civil action challenging the constitutionality of section 614 § 4 or 615 § 5 of this Act or any provision thereof shall be heard by a district court of three judges convened pursuant to the provisions of section 2284 of title 28, United States Code.
(2) Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under paragraph (1) holding section 614 § 4 or 615 § 5 of this Act or any provision thereof unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.

The focus of § 23 is clearly on judicial review of §§ 4 and 5, which require cable companies to carry the signals of broadcast stations and are known as the "must carry" provisions. Original jurisdiction of the three-judge court is tied to constitutional challenges to those sections, as is review as a matter of right in the Supreme Court.

There are two lines of argument as to why the three-judge court should exercise jurisdiction over constitutional challenges to sections other than the must-carry provisions. First, a literal reading of § 23 provides a three-judge court for "any civil action" challenging § 4 or § 5, so that three-judge treatment follows automatically for whatever issues the plaintiffs (or, for that matter, any other party) may manage to bundle within such an action under the generous provisions of the Federal Rules of Civil Procedure as to joinder of claims. Second, plaintiffs assert that we have discretion to take supplemental jurisdiction over claims related to the §§ 4 and 5 challenges, and that prudential considerations argue for doing so. We address the two theories in that order.

1. The meaning of § 23:

The literal reading of § 23 is supported by the traditional assumption that Congress has selected every word with exquisite care: if it had wished to restrict our jurisdiction to §§ 4 and 5, it could have referred to "any claim" challenging the must-carry provisions, rather than to "...

To continue reading

Request your trial
8 cases
  • Time Warner Entertainment Co., L.P. v. F.C.C.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 30, 1996
    ...panel of the district court in accordance with section 23 of the 1992 Act, 47 U.S.C. § 555(c)(1). See Turner Broadcasting Sys., Inc. v. FCC, 810 F.Supp. 1308 (D.D.C.1992). A single-judge district court proceeded to consider the remaining issues, which are those that now concern us, and conc......
  • Adams v. Clinton
    • United States
    • U.S. District Court — District of Columbia
    • March 20, 2000
    ...jurisdiction over those claims were proper, however, we would retain the discretion not to exercise it. See Turner Broad, Sys., Inc. v. FCC, 810 F.Supp. 1308, 1314 (D.D.C.1992) (three-judge court). As we noted at an earlier stage in these proceedings, the Supreme Court has indicated that "e......
  • Turner Broadcasting System, Inc. v. FCC, Civ. A. No. 92-2247
    • United States
    • U.S. District Court — District of Columbia
    • April 8, 1993
    ...15, 1992, this Court declined to exercise jurisdiction over any claim other than the must-carry claims, see Turner Broadcasting Sys., Inc. v. FCC, 810 F.Supp. 1308 (D.D.C.1992) (three-judge The matter, i.e., the constitutionality of sections 4 and 5, is now before the Court on the motions f......
  • Adams v. Clinton, Civ. No. 98-1665 (LFO, MBG, CKK) (D. D.C. 2000)
    • United States
    • U.S. District Court — District of Columbia
    • March 1, 2000
    ...jurisdiction over those claims were proper, however, we would retain the discretion not to exercise it. See Turner Broad. Sys., Inc. v. FCC, 810 F. Supp. 1308, 1314 (D.D.C. 1992) (three-judge court). As we noted at an earlier stage in these proceedings, the Supreme Court has indicated that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT