Document ID: A:\CHICAGO.TXT CHICAGO CABLE COMMUNICATIONS, SOUTH CHICAGO CABLE, INC., and COMMUNICATIONS AND CABLE OF CHICAGO, INC., Plaintiffs-Appellants, v. CHICAGO CABLE COMMISSION and CITY OF CHICAGO, a municipal corporation, Defendants-Appellees No. 88-1195 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 879 F.2d 1540; 1989 U.S. App. LEXIS 10766; 66 Rad. Reg. 2d (P & F) 1222 June 8, 1988, Argued July 19, 1989, Decided * * The delay in issuing this opinion was caused by lengthy panel deliberations about the outcome. SUBSEQUENT HISTORY: As Amended on Denial of Rehearing August 15, 1989. Reported at 1989 U. PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Illinois COUNSEL: James E. Betke, McDermott, Will & Emerv, Chicago, Illinois, Attorneys for Plainti Joel D. Stein, Law Dept., Craig J. Hanson, Judson H. Miner, Law Dept., Ruth Moscovitch, JUDGES: Cummings, Coffey and Kanne, Circuit Judges. OPINIONBY: CUMMINGS OPINION: [*1542] CUMMINGS, Circuit Judge The Chicago Cable Commission (the "Commission"), pursuant to Chapter 113.1 of the Munic on service corporations, Chicago Cable Communications, South Chicago Cable, Inc., and Comm ating the "local origination" ("LO") provisions of their identical franchise agreements wi . Supp. 734, 736 (N.D.Ill. 1988). On appeal, CCTV contends that the City and particularly hise agreement, (2) equal protection by treating CCTV differently from another cable compa - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 CCTV also asserts that there was no evidence in the record sufficient to support the lf failed to provide copies of its schedules; it only sent written descriptions. CCTV addi upport the Commission's findings. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L Secondly, while CCTV claimed below that the Commission unreasonably interpreted the LO " (Br. 26 n. 17). CCTV has a third argument that additionally merits summary disposition. It argues that n the non-local production. Even if Group W Cable, another Chicago area franchisee, may be to meet its minimum LO requirements. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**3] The parties largely agree with the statement of facts provided by the district court n2 ead will focus on the Commission's imposition of sanctions to determine whether a due proc Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The Commission contests the district court's statement that the City awarded CCTV "t e franchisee for each area is granted a "non-exclusive franchise." n3 "LO programming" is defined by the National Cable Television Association as "program all in Chicago. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I Chapter 113.1 of the Municipal Code created five separate areas for cable services for franchises for Areas 2 and 3. The franchise agreements between the City and grantees CCTV otal required programming according [**4] to an agreed schedule. The grantees were to th full and part-time internship purposes. During the period involved here, CCTV and Group The Commission was created within the Mayor's office to supervise this regulation and t quested Group W and CCTV to submit monthly reports on their LO scheduling, and in August, e of CCTV] who would supply all necessary production manpower." This progress report was r [*1544] In October, both grantees began to transmit their four and one-half hours api the December meeting, the Commission, upon noticing that CCTV's monthly report on LO sched Controversy between all concerned arose at the January 13, 1987, meeting when Chairpers 1. CCTV has not demonstrated how their current programming is actually [**6] local o ect, Illinois, affiliate of CCTV]. 2. CCTV has not provided documentation on the provision of one full-time non-alphanume 3. No documentation of efforts to establish internship programs for local residents an 4. CCTV has not documented its [one-half] share of the nine hours required weekly in Y 5. No documentation or proof of joint participation with other [Chicago] area grantees 678 F. Supp. at 740. This action was done pursuant to Section 29 of the franchise agreemen otice of violation in writing setting forth the specific nature of the violation. The gran on or to respond in writing contesting the notice of violation with supporting documentati ation, the grantee fails to prove a violation did not occur, the Commission then may penal Assessment." 678 F. Supp. at 739 n. 10. CCTV responded to the January 15, 1987, notice of violation, stating that of the total urrounding suburban area. CCTV also stated that it selected shows from a pool of all avail by the franchise agreements. At its February 10, 1987, meeting, Chairperson [**8] Charleston recommended that CCT ager. After this hearing, the Commission found a violation and fined CCTV $ 750 for each d THE CHICAGO CABLE COMMISSION FINDS AS FOLLOWS: 1. Based on the submission by CCTV/TCI, the programming shown over CCTV/TCI's local ori TCI companies [*1545] in the surrounding Chicagoland area" instead of being produced goland areas rather than the communities that CCTV/TCI serves. 678 F. Supp. at 741. CCTV quickly filed a petition for rescission of this violation and as cago, while CCTV claimed that Group W was to be in charge of all production concerns. At t n also decided that in the meantime CCTV had subsequently remedied its past violation thro II Due Process CCTV argues on appeal that its due process rights were compromised because the Cable Co ad previously only referred to physical production in Chicago, which was the stated reason specific programming. CCTV asserts that its due process rights were compromised when the C ] charged it only with a failure to document compliance and not with a specific failure ion notice against it at that time and that at said meeting, the Commission refused to all The legal principles involved in this case are clear regarding notice and opportunity. 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), as well as ample opportunity to be 1976); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 70 First, the private interest that will be affected by the official action; second, the risk s; and finally, the Government's interest, including the function involved and the fiscal 424 U.S. at 335; see also Birdsell v. Board of Fire and Police Comm'rs, 854 F.2d 204, 207 Adequate notice both apprises the individual of the hearing and permits adequate prepar 7-578, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In Memphis Light, the Court held that its ce errors, applies to evaluations of notice as well as the procedures [*1546] at the h ficiency of notice depends on balance of state and individual interests); Mullane, 339 U.S heard," before opportunity to challenge trustees' action was foreclosed); Birdsell, supra, (7th Cir. 1980) ("elements to be included in the notice are to be tailored to the circumst "It is universally agreed that adequate notice lies at the heart of due process. Unless ional process." Cosby v. Ward, 843 F.2d 967, 982 (7th Cir. 1988) (quoting Gray Panthers v. 0 U.S. 544, 550-551, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968); Camacho v. Bowling, 562 F. S Ct. 1187 (1965). In an administrative context such as this, an agency complaint that reasonably informs , 19 (7th Cir. 1971) (quoting Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), c nistrative case into a denial of due process of law, see, e.g., Hebert v. Louisiana, 272 U ermine whether there is a "legitimate claim of entitlement." Vukadinovich v. Bartels, 853 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Illinois law provides: Every action to review any final administrative decision shall be heard and determined by evidence in support of or in opposition to any finding, order, determination or decision ie true and correct. Ill.Rev.Stat. ch. 110, P. 3-110 (1987). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**14] A review of the facts of this case convinces us that CCTV was provided with an ample op ient to apprise it of the charged violation. It repeated all five alleged violations. In p CCTV had failed "to document their participation in the production of nine hours [split e eipt of the notice, either respond in writing to the Commission contesting the notice of v Administrative Record.) Contrary to its contention, CCTV was fined not for violating a new definition of local y added to the meaning of local origination was surplusage as far as this issue is concern mised the violation on local production, although "furthermore" criticizing CCTV's suburba CCTV's motion to reconsider. After the assessment occurred, CCTV presented a plan to the f the programming for which CCTV had been fined. Based on this proposal the Commission dec ther highlights the fact that CCTV was fined for non-compliance with the local production CCTV's second claim of denial of due process centers on its argument below that the vio does not claim that it could prove compliance other than via documentation." 678 F. Supp. e noted. 678 F. Supp. at 747. CCTV's final due process contention is that it was not permitted to speak or to make a sufficient notice prior to the actual deprivation of property, as there was here. See Tav Equal Protection CCTV claims that the Commission violated its right to equal protection of the laws unde agreement between the grantees and the City stipulated that both CCTV and Group W were jo shows was produced in Mount Prospect, Illinois, and was not geared to Chicago. As below, CCTV relies on Ciechon v. Chicago, 686 F.2d 511 (7th Cir. 1982), for the swee equal protection by firing only one of two paramedics, both of whom had been called to re s decision to fine CCTV alone was justified since only CCTV was responsible for not presen cally with Ciechon on the basis of "equal responsibility" therefore fails. First Amendment CCTV claims that the Commission's imposition of a fine based partly on the subject matt t right to free expression. This is a novel question, for the Supreme Court has yet to det 488, 496, 90 L. Ed. 2d 480, 106 S. Ct. 2034 (Blackmun, J., concurring). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 As noted earlier, by agreement between the grantees, Group W was to produce the othe - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The court below concluded that the appropriate framework for analysis in this case was a government regulation is sufficiently justified [1] if it is within the constitutional p ] of free expression; and [4] if the incidental restriction on alleged first amendment f 678 F. Supp. at 745. n6 The defendants have the burden of proving that the second and four S. Ct. 1002, 98 L. Ed. 2d 969 (1988). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Conceivably it could also be argued that CCTV contractually waived its First Amendme privileges of lesser importance, may be contractually waived, construed a consent decree s ent decree settled a suit which included a First Amendment claim, the Third Circuit believ rom Erie, and serious reservations arise when a local government with a virtual monopoly o & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 657-658, 68 L. Ed. 71 U.S. 583, 592-593, 70 L. Ed. 1101, 46 S. Ct. 605 (1926). In any event we need not decid n7 As the district judge observed, the first and third requirements are satisfied (678 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - CCTV's scheduling plainly implicates First Amendment interests, for cable operators exe Video Corp., 440 U.S. 689, 707, 59 L. Ed. 2d 692, 99 S. Ct. 1435 (1979)). The Supreme Cou Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969), w ble television and the non-television media to allow more government regulation of the for 77-1380 (10th Cir. 1981), certiorari dismissed, 456 U.S. 1001, 73 L. Ed. 2d 1296, 102 S. C ble medium in the public interest." Id. at 1379. As other courts have held, O'Brien is an (W.D.Pa. 1987), affirmed, 853 F.2d 1084 (3d Cir. 1988); Carlson v. Village of Union City, r. 1985). This is especially so here, where CCTV was only required to present four and one Our adoption of an O'Brien test in the cable context does not justify abandoning First constraints on competitors comparable to the physical constraints imposed by the limited s ment Protection 9-11 (1983); R. Posner, Cable Television: The Problem of Local Monopoly 4 882, 69 L. Ed. 2d 800 (1981). A proper analysis under O'Brien begins with an appraisal of whether the interest to be next relevant step is to determine the fact-based issue of whether the means chosen are co U.S. App. D.C. 1, 768 F.2d 1434, 1454-1462 (D.C.Cir. 1985) (using key two-step O'Brien an we now proceed to show that they have been met by defendants. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 In contrast to the limited local programming requirement here, Quincy Cable invalida nal that is significantly viewed in the community or considered local under its rules (768 nder the First Amendment. 768 F.2d at 1450, 1454. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**23] 1. Substantiality of Governmental Interest The Commission and City contend that these minimal LO rules serve the interest of prese ement is said to improve communications between the citizens and the City as well as encou urthered by regulating the content of LO programming. Yet substantial governmental interests are at stake and fostered by LO programming requ ould require cable operators to have facilities available for local production. Id. at 653 of programs * * *." Id. at 668. Similarly, the LO requirements in this case assure communi Promotion of community self-expression can increase direct communication between reside . The district court focused on this by noting that [*1550] the important qualities embodied in the term "localism" (community pride, cultur ire original cable programming specifically concerning the locality and directed at that l uce their L.O. programming within the City of Chicago and designed specifically for City r 678 F. Supp. at 745. An additional interest fostered by the defendants' LO requirement is the provision of j mmunications at local schools. All of the above objectives of the LO rules are important a 2. The Congruence Between Means and Ends The pertinent fourth tier of the O'Brien test focuses on the congruence between the mea interest served by the LO rules, their validity also depends on whether these restrictions de's and franchise agreement's LO requirements may be characterized as content-related, th v. Public Service Commission, 447 U.S. 530, 540, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980); 6 S. Ct. 612 (1976). Or, put another way, is each of the restrictions no greater than is e United States v. Albertini, 472 U.S. 675, 689, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985) on promotes a substantial governmental interest that would be achieved less effectively ab 9, 57 U.S.L.W. 5015, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989) (under O'Brien means must b 04 S. Ct. 3065 (1984)). Cable programming, like other forms of the electronic media, is an economically scarce result the government, which serves as the representative of cable customers, is duty-boun 2d at 1379; Berkshire Cablevision, 571 F. Supp at 986-987. With this in mind, it is within f programming from the franchisee, since the cable viewing public has no other channel to Finally, it is worth noting that CCTV is required to broadcast just four and a half hou ut simply a few hours a week. And of these four and a half hours of programming, CCTV is n s geared to Chicago -- be it sports, politics, news, weather, entertainment, etc. -- CCTV scretion, for, as in Midwest Video, the cable operator here still retains the ultimate dec iction at issue is really no greater than essential to further substantial City interests. is four and one-half hour weekly obligation is sufficiently modest to avoid First Amendmen Conclusion CCTV has not persuaded this Court that its due process, equal protection, or First Amen y judgment for the Commission and City of Chicago was proper. Affirmed.