WGN Continental Broadcasting v. United Video, Inc., 81 C 1320.
| Decision Date | 30 September 1981 |
| Docket Number | No. 81 C 1320.,81 C 1320. |
| Citation | 523 F. Supp. 403 |
| Parties | WGN CONTINENTAL BROADCASTING COMPANY and Albuquerque Cable Television, Inc., Plaintiffs, v. UNITED VIDEO, INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Don Reuben, Reuben & Proctor, Chicago, Ill., for plaintiffs.
Plaintiff WGN Continental Broadcasting Company ("WGN") brought this action to enjoin defendant United Video, Inc. ("UVI") from retransmitting WGN's copyrighted television programming to UVI's cable television system customers after stripping the vertical blanking interval of WGN's TV signal of teletext information generated by WGN and substituting a Dow Jones News Service. In Counts I and IV of the complaint WGN claims, and UVI denies, that this is copyright infringement. In Counts II and III of the complaint the plaintiffs allege claims of tortious interference with contractual relations.
WGN has moved for a permanent injunction on Counts I and IV and UVI has moved for summary judgment on all counts. Based on the evidence heard and received, and considering the memoranda filed by the parties, the court denies WGN's motion for permanent injunction and grants UVI's motion for summary judgment.
WGN is an independent television broadcasting company, and UVI is a telecommunications common carrier, licensed to operate and regulated by the Federal Communications Commission ("FCC"). Under approval of the FCC, UVI has since November 9, 1978 provided satellite transmission service relaying WGN's TV signal to 1,400 cable systems throughout the United States which have a total of approximately 4.5 million subscribers.
UVI receives WGN's TV signal in Chicago, where it originates, relays it to a transmitting earth station in Wisconsin (an "uplink"), and from there transmits WGN's signal to a communications satellite.1 From this satellite, UVI transmits the signal to at least 2,000 signal-receiving earth stations ("downlinks") across the United States. Through these earth stations, UVI makes WGN's signal available to cable television systems and other subscribers, who in turn distribute WGN's TV signal to the ultimate viewers for a fee.
The receiving cable systems are authorized by the FCC to receive and distribute the signal, for which they pay copyright fees to the owners of the programs' copyrights under a compulsory copyright license. UVI's customers pay UVI for its retransmission of WGN's TV signal.
WGN is not compensated by UVI or anyone for UVI's use of WGN's TV signal.2 UVI has not sought, nor has WGN granted, WGN's permission to transmit or to sell WGN's signal. However, UVI is permitted by the FCC to carry WGN's signal, so long as it meets certain conditions. United Video, Inc., 69 FCC 2d 1629, 1641 (1978). One of these conditions is that UVI is not permitted to be "substantially involved in the production of, the writing of, the selection of, or the otherwise influencing of the content of any information to be transmitted over its facilities."
The Vertical Blanking Interval ("VBI")
The video television picture is reproduced on a television set by an electron gun in the rear of the television receiver. The gun scans left and right across lines and then down on the television screen. (There are 525 lines on a standard set.) When the electron gun reaches the bottom of the screen, it shuts off briefly and returns to the top of the screen to repeat the process. The vertical blanking interval ("VBI") is that period of time and space in the transmission of television signals when the television picture is blank and while the electron gun is traveling from the lower right hand part of the screen to the top to begin another sequence of line by line transmission of picture information.
This time period is the equivalent of 21 scanning lines. The allotted time of twenty-one lines is set by FCC standard in its 525 line standardization for television transmission. The actual time for gun return is equivalent to nine lines (fourteen with older sets). Broadcasters have traditionally transmitted the essential information to "organize" the television picture in lines 1-9 of the VBI. The remaining lines are traditionally used for test signal generation on assigned lines with lines 15 and 16 unassigned and traditionally unused.
Each of the 21 lines in the VBI is or can be used for the following:
The VBI is an integral part of WGN's television broadcast signal because television receivers could not function properly without it. Although only the first 14 lines of the VBI contain information important to the organization of the television program, the FCC standard is 25 lines. The entire VBI is essential to the transmission of the television picture to the television set. As WGN's expert testified:
To an engineer it is all one part of the same signal. One cannot exist without the other. It is an integral part of the signal.
However, the VBI in WGN's TV signal is not essential to UVI's retransmission of the signal to its customers. UVI, as a microwave and satellite common carrier, does not transmit directly to the ultimate television receiver, and vertical blanking is not integral to the television relay or transmission. It is more efficient and economical for UVI to strip the VBI from WGN's TV signal before transmitting the signal to the satellite, and that is what UVI has been doing. However, since the VBI is essential to television reception, the VBI must be reinserted into the signal before the signal is distributed to the cable television systems. Therefore, UVI reinserts the VBI before making the signal available to its cable system customers. UVI puts its own information on lines 1-9 of the VBI and its own test signals on lines 17-18. Although UVI had been stripping WGN's closed captioning for the deaf on line 21, UVI intends to reinsert that captioning in the VBI. The stripping of the VBI, described above, does not adversely affect the quality of the transmission of WGN's broadcast signal.
With increasingly sophisticated technology, it has become possible to broadcast more and more information in the VBI.3 Many broadcasters are exploring further commercial use of the VBI, specifically for teletext. Teletext involves the use of lines 15 and 16 of the VBI to provide viewers with information such as train schedules, weather, advertising, financial news, and television program schedules. Teletext programming is becoming successful in England and Canada.
Television receivers must be equipped with special decoders to translate information broadcast in the VBI into visual images. Some of the uses, like closed captioning for the deaf, require only one television receiver. Other uses, such as for teletext, require two receivers, one to display the teletext and a second to display traditional television programming.
In December 1980, WGN applied to the FCC for temporary experimental authority to transmit material on lines 10-16 of the VBI of WGN's TV signal. Part of the experiment involved the plaintiff Albuquerque Cable Television, Inc., a subsidiary of WGN. WGN's application to the FCC stated in part:
On December 18, 1980, the FCC granted WGN the authorization "to perform teletext program tests, as requested."
At the time of this application WGN did not know that UVI was stripping the VBI from the WGN-TV signal. Obviously, if WGN's data in the VBI is stripped, the teletext material generated by WGN would not be retransmitted to Albuquerque.
Commencing on February 10, 1981, WGN broadcast teletext in lines 15 and 16 of the VBI of its television signal pursuant to the FCC authorization. Shortly before WGN began broadcasting teletext material, WGN discovered that UVI was stripping WGN's VBI when it retransmitted WGN's signal. WGN advised UVI that WGN was going to transmit information to Albuquerque, New Mexico pursuant to its FCC authorization and demanded that UVI stop stripping WGN's VBI. UVI refused and, as a result, WGN's teletext program has not been received in Albuquerque.
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