Turner Broadcasting System, Inc. v. FCC, Civ. A. No. 92-2247
| Citation | 819 F. Supp. 32 |
| Decision Date | 08 April 1993 |
| Docket Number | 92-2292,92-2495 and 92-2558.,Civ. A. No. 92-2247,92-2494 |
| Court | U.S. District Court — District of Columbia |
| Parties | TURNER 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. |
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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, Washington, DC, for Discovery.
Stuart E. Schiffer, Acting Asst. Atty. Gen., Civ. Div., Jay B. Stephens, U.S. Atty., Theodore C. Hirt, John R. Tyler, Patricia Arzuaga, Washington, DC, for United States and FCC.
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 Inter-faith 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 Telecommunications 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.
Michael Davidson, Senate Legal Counsel, Claire M. Sylvia, Asst. Senate Legal Counsel, Washington, DC, amicus curiae, for United States Senate.
Before WILLIAMS, Circuit Judge, and JACKSON and SPORKIN, District Judges.
Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992, Pub.L. No. 102-385, 106 Stat. 1460 () ("the 1992 Cable Act" or "the Act") require cable television system operators to carry the video signals of certain commercial and noncommercial educational television broadcast stations requesting that their signals be carried. The plaintiffs in these five consolidated lawsuits contend that these mandatory carriage (or "must-carry") provisions violate their First Amendment rights. Upon consideration of the entire record,1 the Court holds that sections 4 and 5 of the 1992 Cable Act do not violate the plaintiffs' First Amendment rights.
On October 5, 1992, Congress overrode a Presidential veto to enact the 1992 Cable Act. The Act subjects the cable industry to extensive regulation. Among other things, it subjects certain cable system operators to rate regulation by the FCC and by municipal franchising authorities; it imposes restrictions on distributors of cable programming that are affiliated with cable operators; and it directs the FCC to promulgate regulations imposing minimum technical standards for operators of cable systems.
Sections 4, 5, and 6 of the Act limit the freedom of cable operators to refuse to carry the signals of local broadcast stations, and, as a corollary, prevent cable operators from carrying broadcast signals without a broadcaster's consent.2 The plaintiffs' constitutional challenge to these three sections is the matter presently to be addressed by this opinion.
Section 4 of the Act requires all cable system operators with more than 12 channels to carry, upon request, the signals of licensed "local" commercial broadcast television stations whose signal is received over-the-air in the same television market as the cable system.3 The operator need not devote more than one-third of its active useable channels to deliver local broadcast signals, but if there are not enough local broadcast stations to fill the one-third set-aside, the operator must carry the signal of one or two "qualified" low power broadcast stations.4 Cable systems with 12 or fewer channels must deliver the signals of at least three local commercial broadcast stations unless the cable system has 300 or fewer subscribers, in which case it is not subject to the requirements of section 4 at all. An operator must carry the entire programming schedule of each commercial station it is required to carry, and it may not accept or request payment for doing so. Every commercial broadcast station having a right to mandatory carriage must be carried by the cable operator, at the station's election, on its current over-the-air channel position, at the channel position it occupied on July 19, 1985, or at the channel position it occupied on January 1, 1992.
Section 5 of the Act requires operators of cable systems able to deliver signals on more than 36 channels to carry the signals of every local non-commercial educational broadcast television station requesting carriage,5 unless the educational station's programming substantially duplicates that of another station carried by the system. Systems with 12 or fewer channels must carry one qualified non-commercial station, and systems having 12 to 36 channels must carry between one and three such stations. Section 5, like section 4, directs cable system operators to carry the entire programming schedule of the broadcast stations they are required to carry, and similarly prohibits operators from accepting payment in exchange for carriage. Each non-commercial station having a mandatory carriage right must be carried, at its election, on its current over-the-air channel position or on its channel position as of July 19, 1985.
Section 6 of the Act, which becomes effective on October 5, 1993, prohibits cable operators from retransmitting the signals of any commercial broadcasting station without obtaining the station's consent. In conjunction with section 4, section 6 provides local broadcasters with an option to request mandatory (but uncompensated) carriage on a system or to negotiate a carriage agreement with the operator. (Presumably, cable operators will want to carry the signals of larger, viewer-popular broadcasters and will pay for the privilege;6 less popular...
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