Document ID: A:\PACIFICA.TXT Pacific West Cable Company, Plaintiff, v. City Of Sacramento, California, a municipal corporation; and County of Sacramento, California, a municipal corporation, Defendants Civil No. S-83-1034 MLS UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 672 F. Supp. 1322; 1987 U.S. Dist. LEXIS 9957 August 13, 1987, Decided August 13, 1987, Filed COUNSEL: [**1] Michael A. Small, Kathleen M. McGinnis, Preston, Thorgrimson, Ellis & H Harold R. Farrow, Robert M. Bramson, Siegfried Hesse, Farrow, Schildhause & Wilson, Ric Stephen L. Goff, Boutin, Lassner, Gibson, Terry & Delehant, Amicus Curiae. JUDGES: Judge Milton L. Schwartz. OPINIONBY: SCHWARTZ OPINION: [*1324] MEMORANDUM DECISION, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT JUDGE MILTON L. SCHWARTZ Jury trial of this action commenced on March 23, 1987. After 29 days of trial, the matt , the court asked the jury to continue deliberating on the remaining special verdicts. On dicts. The court accepted and entered the additional eight verdicts and then discharged th The court conducted one additional hearing and received [**2] two sets of briefs (o lowing constitutes the court's judgment, including its analysis and conclusions, on the ju I. BACKGROUND A. The Issue of the Franchise n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Much of the information is taken from the stipulated statement of facts. A slightly - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In November of 1981, the Sacramento City Council and County Board of Supervisors enacte evision franchises. Under the cable television ordinance, any such franchise is deemed to formed pursuant to California law by defendants and two other cities. Furthermore, the po - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Cable television companies may distribute, among other things, news, information and ribers. These cables are attached to public utility poles or placed in underground conduit - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Pursuant to the provisions of the cable television ordinance, a request for proposals f s on the proposals and considering the reports prepared by the consultant retained by the [*1325] Further public hearings, meetings and negotiations ensued on the precise term accept the offer. As a result, defendants issued a second [**4] request for proposals In August 1983, plaintiff, Pacific West Cable Company, was formed as a partnership by a c West Cable Group. Those licenses indicate that the nature of the licensee's business is es; the representative also had conversations with one or more of defendants' employees an In September, plaintiff responded to the request for proposals with a five-page letter ith "lawful police power regulations," but refused to tender the non-refundable filing fee laintiff provided only minimal information about its identity, financial resources and pro Defendants held additional meetings and public hearings. The cable commission issued a more additional hearings, the cable commission issued its final report. Shortly thereafter - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 In January of 1985, defendants amended the franchise to permit (among other things) ants also permitted the name of the partnership to be changed from Cablevision of Sacramen - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On or after December 8, 1983, defendants received a letter from plaintiff concerning th ively. Plaintiff's attorney responded to those letters on February 24, 1984. The city atto B. This Suit When defendants persisted in their refusal to issue plaintiff a cable television franch States Constitution, sections 1 and 2 of the Sherman Act, 15 U.S.C. @@ 1 and 2, and articl Plaintiff moved for a preliminary injunction that would have allowed it to lay its cond ble Co. v. City of Sacramento, 762 F.2d 1018 (9th Cir. 1985) (mem.) (affirming denial). Pl as also denied. See Pacific West Cable Co. v. City of Sacramento, [**7] California, 79 Finally, the court dismissed plaintiff's antitrust claims for failure to state a claim r grounds, 474 U.S. 979, 106 S. Ct. 380, 88 L. Ed. 2d 333 (1986). II. SPECIAL VERDICTS At the close of evidence and final argument, the case was submitted to the jury on gene of plaintiff, which argued that it was entitled to a general jury verdict and instruction - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 The use of special verdicts is authorized by Federal Rule of Civil Procedure 49(a), The court may require a jury to return only a special verdict in the form of a special mit written forms of the several special findings which might properly be made under the p all give to the jury such explanation and instruction concerning the matter thus submitted ence, each party waives his right to a trial by jury of the issue so omitted unless before be deemed to have made a finding in accord with the judgment on the special verdict. There has apparently been no question as to the constitutionality of Rule 49. Nollenberger 897), rev'd on other grounds sub nom., United Airlines, Inc. v. Wiener, 335 F.2d 379 (9th para. 49.01[3] (2d ed. 1986). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**8] A. Advantages of Special Verdicts There were several advantages to using special verdicts in this case. The general verdi and, Verdicts, General and Special, 29 Yale L.J. 253, 259 (1920)). Special verdicts, on th inder. Brown, Federal Special Verdicts: the Doubt Eliminator, 44 F.R.D. 338, 346-48 (1967 For this reason, special verdicts are a valuable tool when the law is uncertain or in a at 342, 348; see also Wright and Miller, Federal Practice and Procedure, @ 2505 at 494-95 c. v. Eastman Kodak Co., 603 [**9] F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 10 We note en passant, however, that in large and complex cases such as this, involving ma In that way the right to a jury trial of all factual issues is preserved while the probabi 599 F.2d 32 (2d Cir. 1979). Certainly the already difficult task of reviewing a case of th Id. at 279; see also Envirex, Inc. v. Ecological Recovery Associates, Inc., 454 F. Supp. 1 the use of special verdicts as facilitating its review for harmless error. See Pacific Gr The court is especially concerned about the possibility of legal errors in this case in ord, City of Los Angeles v. Preferred Communications, Inc., 106 S. Ct. at 2037-38, even th s. Id. at 2038 (citing to Members of the City Council v. Taxpayers for Vincent, 466 U.S. 7 0, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968)). The Ninth Circuit also relied on Vincent and O'Brien in holding that a cable company's the Ninth Circuit did not explain what the relationship of the lines of inquiry used in V c forum doctrine applied in Vincent and other cases. See id. at 1407. The challenges presented by the developing state of the law are compounded by the diffi be resolved by the court is an elusive one in first amendment jurisprudence. See generall fact in applying the test for "actual malice" under New York Times v. Sullivan, 376 U.S. 104 S. Ct. 1949, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 863, 104 S. Ct. 3561 (1984). The Supreme Court and Ninth Circuit have also both held that the balancing of interests 148 n.7, 150 n.10, 75 L. Ed. 2d 708, 103 S. Ct. 1684 [**12] (1983); Loya v. Desert Sands y. Loya, 721 F.2d at 281-82; see also Keller v. City of Reno, 587 F. Supp. 21, 23 n.4 (D. 's function is to find the underlying facts to which the legal standard is ultimately appl r. 1987) (jury has no role to play; entire matter for court determination). The use of special verdicts enables the jury to find these underlying facts and then al l Practice, @ 49.02 at 49-8 (2d ed. 1984)), cert. denied, 471 U.S. 1136, 86 L. Ed. 2d 694, e jury; the jury need not be instructed on the legal principles which the judge applies to Co. v. Smith-Blair, Inc., 331 F.2d 506, 511 (9th Cir. 1964) (quoting [*1328] Moore's wi /jury division of labor, special verdicts assure that the jury does not impermissibly deci d the respective provinces of judge and jurors in a civil case); but see Parker, supra, at res). B. The Jury's Special Verdicts The special verdicts themselves, together with the jury's [**14] answers, are attac The jury found that plaintiff had the technical and financial capabilities to construct hould be awarded to plaintiff. The jury also found that defendants had not left open ample As for defendants' justifications for limiting access to the cable television market, t and rights of way had sufficient room for all cable companies who wanted to use them or wh ant disruption in the use of public or private property; in addition, the jury concluded t clutter, environmental and/or aesthetic problems. Even so, the jury said that defendants d As for whether cable television is a natural monopoly, the jury found that it was not. s justification was a sham or pretext for granting a single cable television franchise and hisee. They also concluded that this justification was used to obtain increased campaign On the other hand, the jury agreed with defendants that the public as a whole benefits degree than would be achieved in its absence. [**16] The jury also found that the public fendants' franchising process promotes the provision of these kinds of resources to a grea tain increased political influence and to favor local officials' political supporters. The jury was also persuaded that the public has a significant interest in both the fina ts' franchising process promoted the public's interest in having financially sound cable t pretexts to justify the franchising process. Finally the jury said that defendants' franchising process does not result in "better" The jury was unable to agree on whether defendants used "better cable television service" The jury was also unable to agree on whether the predominant purpose of defendants' fra rcise their editorial judgment. The jury was also divided on whether defendants denied pla the franchising process applies evenhandedly, regardless of viewpoint, and whether defend C. The Court's Task Once the special verdicts are recorded, the court then applies the law to the facts and ect not only to precedential guidelines but to constitutional constraints as well. Griffin ry's answers consistent, the court must adopt that view and enter judgment accordingly. Id e, be construed in light of surrounding circumstances. R.H. Baker, 331 F.2d at 509. III. FINDINGS AND CONCLUSIONS BY THE COURT A. Mootness as a Result of Change in Cable Policy The threshold question the court must address concerns an issue which arose after the j would-be cable operators but otherwise abandon the single franchise policy. Defendants obs use this is no longer defendants' policy, defendants argue that plaintiff's request for in - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Under the new ordinances, the applications for a cable license require (1) the appli bond, and (6) the applicant's schedule of construction. Licenses shall be issued unless th evenues as license fees, limited public access requirements and enforcement mechanisms. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A case, or a question in a case, is considered moot if it has lost its character as a p decision will have an impact on the parties, Williams v. I.N.S., 795 F.2d 738, 741 (9th Ci hout power to decide questions that cannot affect the rights of litigants. Aguirre, 801 F. 330] issues in a case, no justiciable controversy is presented. Id. (citing Flast v. Cohen In Armster v. United States District Court, 806 F.2d 1347 (9th Cir. 1986), the Ninth Ci nlawful conduct will recur, the mere cessation of that conduct will not render the challen lon, Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of The court does not question defendants' good faith in adopting these new ordinances. Ho is suit. The state court suit alleges that the new ordinances are unconstitutionally vague old cable television ordinance (which was not repealed) and various contractual obligatio gainst the issuance of licenses under the new ordinances. On July 2, 1987, the complaint was removed to this court and has been assigned to the u e new ordinances. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 See order relating cases dated August 3, 1987. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This court cannot, at this early stage, express any views on the merits of these attack his occurs, plaintiff in the instant case will not receive the relief it sought in initiat In short, this court can only resolve one lawsuit at a time. The law on cable televisio t creates a reasonable possibility that permanent licenses will not be issued under the ne ave an impact on the parties and will affect plaintiff's rights. Therefore, plaintiff's re - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Of course, a final determination as to the validity of the new ordinances may moot t ble. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B. Plaintiff's First Amendment Rights Plaintiff claims, [**23] in essence, that defendants' refusal to give plaintiff per d California Constitutions. n8 Plaintiff emphasizes that it is challenging only that aspec market. Plaintiff is not asking the court to decide what requirements generally may or - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Nearly all of the briefing in this case -- particularly the post-trial briefing -- h onal claim. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 1. Plaintiff's Speech is Protected by the First Amendment As a threshold matter, the court notes that both the Supreme Court and Ninth Circuit ha me" first amendment protection exists), aff'd on narrower grounds, 106 S. Ct. at 2037 (pro btedly implicate first amendment interests . . ."). The jury found in this case that plaintiff has the technical and financial capabilities a first amendment issue. 2. Standard to be Applied Of course, to say that defendants' franchising process presents a first amendment issue 2d 800, 101 S. Ct. 2882 (1981) (Burger, C.J., dissenting)). The mere fact that a regulatio ally permissible restriction on speech. See Consolidated Edison Co. of New York, [**25] Defendants argue that this determination cannot be made at this point because the jury dment rights are presumptively invalid; however, this presumption only applies if suppress f Renton v. Playtime Theatres, 475 U.S. 41, , 106 S. Ct. 925, 928-29, 89 L. Ed. 2d 29, se of a forum to people whose views it finds acceptable, but deny use to those wishing to t. 2286 (1972)). Defendants contend that the jury's inability to agree on defendants' purposes in using rality, citing Iacurci v. Lummus Co., 387 U.S. 86, 87, 18 L. Ed. 2d 581, 87 S. Ct. 1423 (1 ctually submitted to it requires a new trial on the issue, because the right to a jury tri The court agrees that it would be improper for the court to make an affirmative finding mination on that issue would make a difference to the court's judgment. See Union Pacific dict requiring a new trial), cert. denied, 350 U.S. 981, 100 L. Ed. 849, 76 S. Ct. 466 (19 iewpoint-neutral [**27] regulations. Because of this, no new trial is necessary. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The court notes that plaintiff does indeed ask for such a finding in its post-trial erving a compelling governmental interest). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Accordi ral regulation is set forth in O'Brien, 391 U.S. at 377. Under O'Brien, [a] government regulation is sufficiently justified if it is within the constitutional pow and if the incidental restriction on alleged first amendment freedoms is no greater than i 391 U.S. at 377; see also Preferred, 754 F.2d at 1405-06, 106 S. Ct. at 2037-38 (also refe - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 The district court in Century Federal, Inc. v. City of Palo Alto, California, 648 F erefore applied the O'Brien test. Id. at 1475; but see Preferred, 754 F.2d at 1406 (singl - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**28] A regulation is "no greater than essential" under O'Brien if it promotes a substantial d 536 (1985). Regulations are not invalid simply because there is some imaginable alternat . See Pacific Gas and Electric v. Public Utilities Commission of California, 475 U.S. 1, 986); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 n.8, 82 L. a "more sharply focused response"). The court notes in passing that defendants' policy cannot be justified as a content-neu t interest and do not unreasonably limit alternative avenues of communication. City of Ren 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981)). In this case, the jury found that defendan F.2d at 1410 (public access channels not an adequate substitute for right to operate a cab ee Schad v. Borough of Mount Ephraim, 452 U.S. 61, 75-77, 68 L. Ed. 2d 671, 101 S. Ct. 217 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 An example of a reasonable time, place and manner regulation of cable television mi ght constitute the "sharply focused response," see Preferred, 754 F.2d at 1406, to defenda ions Co. v. City of Boulder, 660 F.2d 1370, 1377 (10th Cir. 1981), cert. dismissed, 456 U. of Rhode Island v. Burke, 571 F. Supp. 976, 984 (D. R.I. 1983), vacated as moot, 773 F.2d le television systems. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**30] [*1333] 3. Analysis a. Constitutional Power of Government to Regulate Cable Television The authority of local government to authorize the construction and operation of cable Any city or county or city and county in the State of California may, pursuant to such rewith, the governing body may prescribe such rules and regulations as it deems advisable quality of service, rates to the subscriber, income to the city, county or city and county . . . . Any cable television franchise or license awarded by a city or county or city and long or across such public streets, highways, alleys, public properties, or public easemen to the city or county or city and county for public utility purposes or any other purpose The court disagrees with plaintiff's contention that section 767.5 of the California Publi The Legislature finds and declares that public utilities have dedicated a portion of su ears, surplus space and excess capacity on and in their support structures for use by cabl ents is a public utility service delivered by public utilities to cable television corpora The Legislature further finds and declares that it is in the interest of the people of The court interprets this section as imposing upon public utilities a mandatory duty to ma rity of local governments to regulate access to that space. The Cable Communications Policy Act of 1984, 47 U.S.C. @ 521 et seq., and the legislati ents. See 47 U.S.C. @ 541(a) (a franchising authority may award one or more franchises; fr cted the [**33] cable television ordinance, the franchising provisions of the Act were (the act "continues reliance on the local franchising process as the primary means of cabl ate balance. That balance continues to give local governments the authority over areas of Consequently, franchising of cable television systems is within defendants' constitutio Cable Act envisions similar practice). b. Magnitude of Interests Which Must Be Served The question is whether the interests identified by the jury are sufficiently substanti f a particular medium of communication. Generally speaking, such monopolies are antithetic f first amendment is "to preserve an uninhibited marketplace of ideas in which truth will semination of information from diverse and antagonistic sources is essential to public wel The jury's finding that cable television is not a natural monopoly is particularly impo the benefits, and indeed the very possibility, of competition are limited. You can start w average costs faster than their rivals -- but eventually there will be only a single comp may be wasteful duplication of facilities. This duplication may lead not only to higher p ion companies for access to them. Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d at 126. The Eighth Circuit [a] monopoly resulting from economics of scale, a relationship between the size of the mar ntinually expand its capacity at less cost than that of a new firm entering the business. ructive. To put this definition in short-hand form, a natural monopoly is a market that can practic National Reporting Co. v. Alderson Reporting Co., [**36] 763 F.2d 1020, 1023-24 (8th C Government regulates natural monopolies to provide at least a partial substitute for th An alternative procedure is to pick the most efficient competitor at the outset, give him ll routes converge. 694 F.2d at 126; n12 see also Affiliated Capital Corp. v. City of Houston, 700 F.2d 226, 2 714 F.2d 25 (1983), and adhered to, 735 F.2d 1555 (5th Cir. 1984) (en banc). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 Any endants' policy did not result in "better" cable television service (in terms of the syste - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**37] If the jury had determined that cable television in the Sacramento area was indeed a na mendment freedoms would have been much less. n13 If, because of the cost structure of a ca ating the monopolist at the outset, particularly if the cable operator agrees to provide p es serious risk of content discrimination). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 The court emphasizes that it is not expressing an opinion as to whether a single fr al monopoly" as a justification for a single franchising scheme). All this court is saying - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**38] However, if competition is feasible and sustainable, then the impact of selecting a sin nterests necessary to justify such an impact on expression must be very substantial. Unfor or is such a monopoly "essential" to the furtherance of these interests. c. Government's Interest in Financial and Technical Qualifications of Cable Operators The government's interest in the technical and financial qualifications of cable televi protection); it is also reflected in the Act's legislative history: This grant of authority to a franchising authority to award a franchise establishes the ba on, matters subject to state and local authority include, to the extent not addressed in t ction and operation of the system (e.g., extension of service, safety standards, timetable emnation, and transfers of ownership). H.R. Rep. No. 934, 98th Cong. 2d Sess. 59, reprinted in, 1984 U.S. Code Cong. & Admin. New ision operators. Pacific West, 798 F.2d at 355. In this case, however, even though the jury found that the public has a significant int est in having a technically well-qualified cable [**40] television system operator. Furt ndants' single franchise policy goes further than necessary in excluding would-be cable te ssure that only technically and financially sound cable television systems are built. n14 te these interests. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The court notes that defendants' new licensing ordinances set minimum technical and ity and Standards), sub-chapter 4 (Construction Requirements) and sub-chapter 7 (Bonds and r 4 (Construction Requirements) and sub-chapter 7 (Bonds and Insurance). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**41] d. Government's Interest in Uniform Cable Service The substantiality of the government's interest in assuring uniform cable television se In awarding a franchise or franchises, a franchising authority shall assure that access resides. 47 U.S.C. @ 541(a)(3). In adopting this provision, Congress explained: Subsection (a)(3 to income or economic status. In other words, cable systems will not be permitted to "redl areas of the franchise area to avoid this type of practice. However, this would not prohib House Report, at 59. However, Congress' intentions vis-a-vis uniform service has been the subject of controv the franchised area be wired." Notice of Proposed Rulemaking, 49 Fed. Reg. at 48,769 (emp The intent of [section 621(a)(3)] was to prevent the exclusion of cable service based on i clusion is not based on the income status of the residents of the unwired area. Report and Order, 50 Fed. Reg. at 18,647. The District of Columbia Circuit recently upheld the statute on its face prohibits discrimination on the basis of income; it manifestly doe [**43] committee report evidences congressional intent that as a practical matter one ca perators to deny cable service to 'unprofitable' parts of a community." Brief for ACLU at tion in accomplishing the legislative goal. See, e.g., FCC v. WNCN Listeners Guild, 450 U. tion of the Act."); cf. supra II.A.1 at 36-39. Rather, we read the sentence to require exa franchise area can be limited. This is precisely the statement made in the interpretative sional intent. ACLU v. F.C.C., 823 F.2d 1554, slip op. at 62-63 (D.C. Cir. July 17, 1987). Of course, defendants are free to go further than Congress requires, and again, defenda believes that defendants' interests in assuring uniform service and preventing redlining i government's interest is in equal and uniform service, it is not sufficiently substantial to achieving such uniform service. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The court acknowledges, however, that such a requirement may be challenged as repre - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - e. Government's Interest in Public Access Channels, [**45] Etc. Public access to cablecasting is another interest which Congress saw fit to cover in th he most controversial. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 The Act's access provisions read: Section 531. Cable channels for public, educational, or governmental use. (a) Authority to A franchising authority may establish requirements in a franchise with respect to the d for public, educational, or governmental use A franchising authority may in its request for proposals require as part of a franchise c, educational, or governmental use, and channel capacity on institutional networks be des (c) Enforcement authority A franchising authority may enforce any requirement in any franchise regarding the prov pment proposed by the cable operator which relate to public, educational, or governmental (d) Promulgation of rules and procedures In the case of any franchise under which channel capacity is designated under subsectio (1) rules and procedures under which the cable operator is permitted to use such channe (2) rules and procedures under which such permitted use shall cease. (e) Editorial cont Subject to section 544(d) of this title, a cable operator shall not exercise any editor - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**46] For example, public access requirements may have their own constitutional infirmities. nality are not frivolous. See Midwest Video Corp. v. F.C.C., 440 U.S. 689, 709 n.19, 59 L. e Act: H.R. 4103 includes several provisions, specifically those related to PEG and commercial le operator. The committee is aware that access provisions have been challenged in the cou n are consistent with and further the goals of the First Amendment. The provision [sic] es e past, courts have held a similar regulation to be consistent with the First Amendment. H.R. Rep. No. 98-934, 98th Cong. 2d Sess. at 31, reprinted in 1984 U.S. Code Cong. & Admi 01 (W.D. Pa. 1987); Berkshire Cablevision, 571 F. Supp. at 987; but see Midwest Video Corp access requirement was found constitutional, the court nonetheless acknowledged that acce Moreover, some of the jury's verdicts in this case indicate that defendants' interests nels and in kind services by a desire to obtain political support and favor political supp rvices and increased campaign contributions. This suggests that defendants sought to enhan at 914 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 785-86, 55 L. Ed. 2 (1976)). While these motivations do not rise to the level of a "predominant purpose" to suppress tly substantial to justify the impact on expression caused by a single franchise policy. A diminishes the substantiality of the government's interest in such access and increases t Finally, [**49] even if public access requirements are constitutional, the court is ely to motivate a cable television system operator to accept public access requirements. S hich may not be obtainable under a competitive system). However, there was no showing tha - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Indeed, the new licensing ordinances have such access requirements. See County Ordi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 4. Conclusion To summarize, defendants bear the burden of proving that the elements of the O'Brien te *50] "artificial" monopoly over cable television on free expression is tremendous; it me cy significantly reduces the diversity of expression available to cable television subscri Under O'Brien, the interests served by a single franchising system must be commensurate a particular medium -- especially a medium as increasingly important as cable television. court concludes that plaintiff is entitled to judgment in its favor on its first amendmen C. Relief Sought by Plaintiff By reason of the alleged constitutional deprivations, plaintiff requests: (1) a declara ion enjoining defendants from interfering with the rights established in favor of plaintif suant to statute. Inasmuch as this case is not moot, a declaratory judgment establishing that defendants' post-trial hearing that it is seeking two kinds of relief: 1. An order directing defendants to "open up" the utility trenches to which plaintiff has s pending; and 2. An order directing defendants to grant plaintiff permission to construct and operate a To issue a permanent injunction, the court must find that the movant has no adequate remed S. Ct. 59, 88 L. Ed. 2d 48, vacated as moot, 474 U.S. 1016, 106 S. Ct. 562, 88 L. Ed. 2d 64, 569-70 (10th Cir. 1984). The court finds that money damages could have compensated plaintiff for the extra expen f plaintiff had received permission to build its cable television system). [*1340] Irr However, the court finds that injunctive relief is appropriate with respect to plaintif will suffer irreparable harm if equitable relief is denied. As already indicated, the issue of damages was submitted to the jury. It found that no 47, 266-67, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) (denial of constitutional right action called "presumed" damages, inasmuch as plaintiff was actually seeking compensatory damages ensatory damages, not a supplement for such damages); but see City of Watseka v. Illinois 89, 94 L. Ed. 2d 703 (1987). Finally, with respect to plaintiff's request for fees and costs, such a request may be IV. ORDER FOR ENTRY OF JUDGMENT In light of the special verdicts returned by the jury and the determinations [**54] a "JUDGMENT Pursuant to the special verdicts of the jury and the determinations and conclusions of IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. That the formulation and implementation of defendants' cable television franchising ingle successful applicant, constitutes a denial of plaintiff's free speech rights guarant 2. That by reason of the determination in paragraph 1 above, defendants (including thei foregoing, are permanently enjoined and directed to issue to plaintiff, within thirty [ ode, for the construction and operation of a cable television system or systems within the Subject to the provisions hereinafter set forth, a license or licenses issued pursuant a. Plaintiff shall be deemed to have reserved to itself the right to challenge, in an a nd comply with any such challenged terms and conditions [*1341] pending (1) a final de b. No performance, compliance or adherence of plaintiff to any term or condition of suc if any, to that term or condition; c. If at the time of the issuance of licenses pursuant to this injunction plaintiff sha riod, and in any event prior to the commencement of construction, shall be deemed to satis In the event that defendants, or either of them, should amend and/or modify the terms a ll have been modified to include such amended and/or modified terms and/or conditions. Nothing contained in this injunction shall be construed to prevent enforcement against er approval and/or review of this court. Nothing contained in this injunction or in the specified chapters shall be construed to 3. That plaintiff be awarded nothing by way of money damages against either or both def 4. That any applications for award of statutory costs and/or attorneys' fees shall be s [*1342] APPENDIX A SPECIAL VERDICT NO. 2 a. WAS THE PREDOMINANT PURPOSE UNDERLYING DEFENDANTS' USE OF THE RFP (REQUEST FOR PROPO YES NO NOT ANSWERED X b. DID DEFENDANTS DENY PLAINTIFF PERMISSION TO CONSTRUCT AND OPERATE A CABLE TELEVISION YES NO NOT ANSWERED X [*1343] c. WAS THE PREDOMINANT PURPOSE UNDERLYING DEFENDANTS' USE AND APPLICATION OF YES NO NOT ANSWERED X d. DOES THE RFP PROCESS APPLY EVENHANDEDLY (I.E. REGARDLESS OF VIEWPOINT) TO ALL ENTITI YES NO NOT ANSWERED X SPECIAL VERDICT NO. 3 a. HAVE DEFENDANTS LEFT OPEN AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION FOR PLAINTIFF, YES NO X SPECIAL VERDICT NO. 4 a. DID PLAINTIFF HAVE THE FINANCIAL AND TECHNICAL CAPABILITIES TO CONSTRUCT AND OPERATE YES X NO [*1344] SPECIAL VERDICT NO. 6 a. IS THE CAPACITY OF THE PUBLIC RIGHTS OF WAY AND UTILITY EASEMENTS IN THE SACRAMENTO ED TO USE THEM OR MIGHT WANT TO USE THEM IN THE FUTURE? YES NO X [*1345] SPECIAL VERDICT NO. 7 a. DOES THE CONSTRUCTION AND OPERATION OF A CABLE TELEVISION SYSTEM CAUSE SIGNIFICANT D YES NO X b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," DID DEFENDANTS' USE OF THE RFP PR YES NO c. WAS "DISRUPTION AND INCONVENIENCE" [**59] A SHAM USED BY DEFENDANTS AS A PRETEXT YES NO X SPECIAL VERDICT NO. 8 a. DOES THE CONSTRUCTION AND OPERATION OF A CABLE TELEVISION SYSTEM CAUSE SIGNIFICANT S YES NO X [*1346] b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," DID DEFENDANTS' USE OF YES NO c. WAS "SAFETY HAZARDS" A SHAM USED BY DEFENDANTS AS A PRETEXT FOR JUSTIFYING THE RFP P YES NO X SPECIAL VERDICT NO. 9 a. DOES THE CONSTRUCTION AND OPERATION OF A CABLE TELEVISION SYSTEM SIGNIFICANTLY INTER YES NO X b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," DID DEFENDANTS' USE OF THE RFP PR YES NO [*1347] c. WAS "INTERFERENCE WITH ABILITY TO USE PRIVATE PROPERTY" A SHAM USED BY DEF YES NO X SPECIAL VERDICT NO. 10 [**60] a. DOES THE CONSTRUCTION AND OPERATION OF A CABLE TELEVISION SYSTEM CAUSE ANY YES NO X b. IF YOUR ANSWER TO THE PREVIOUS QUESTION IS "YES," DID DEFENDANTS' USE OF THE RFP PRO YES NO [*1348] c. WAS "NOISE, VISUAL CLUTTER, AND/OR OTHER ENVIRONMENTAL AND AESTHETIC IMPAC YES NO X [*1349] SPECIAL VERDICT NO. 12 a. IS "HEAD-TO-HEAD" COMPETITION AMONG CABLE TELEVISION SYSTEMS UNLIKELY TO OCCUR AND E YES NO X b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," ARE THERE FEWER ADVERSE EFFECTS A YES NO c. WAS "NATURAL MONOPOLY" A SHAM USED BY DEFENDANTS AS A PRETEXT FOR GRANTING A SINGLE YES X NO [*1350] d. WAS "NATURAL MONOPOLY" A SHAM USED BY DEFENDANTS TO PROMOTE THE MAKING OF YES X NO e. WAS "NATURAL MONOPOLY" A SHAM USED BY DEFENDANTS TO OBTAIN INCREASED CAMPAIGN CONTRI YES X NO SPECIAL VERDICT NO. 13 a. DOES THE PUBLIC AS A WHOLE BENEFIT FROM EQUAL AND UNIFORM CABLE TELEVISION SERVICE T YES X NO [*1351] b. DID THE RFP PROCESS ENCOURAGE EQUAL AND UNIFORM CABLE TELEVISION SERVICE T YES X NO c. WAS "EQUAL AND UNIFORM CABLE TELEVISION SERVICE" A SHAM USED BY DEFENDANTS AS A PRET YES NO X SPECIAL VERDICT NO. 14 a. DOES THE PUBLIC AS A WHOLE OBTAIN SIGNIFICANT BENEFITS FROM ANY OF THE FOLLOWING: AC YES X NO [*1352] b. DID THE RFP PROCESS ENCOURAGE THE PROVISION OF THESE KINDS OF [**62] RES YES X NO c. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," WERE DEFENDANTS MOTIVATED TO PROV SUPPORTERS? YES X NO d. WAS THE PROVISION OF SUCH BENEFITS A SHAM USED BY DEFENDANTS AS A PRETEXT FOR JUSTIF YES NO X [*1353] SPECIAL VERDICT NO. 15 a. DOES THE RFP PROCESS RESULT IN "BETTER" CABLE TELEVISION SERVICE, IN TERMS OF THE SY YES NO X b. WAS "SYSTEM TECHNOLOGY, CAPABILITY AND CHANNEL CAPACITY" A SHAM USED BY DEFENDANTS A YES NO NOT ANSWERED X SPECIAL VERDICT NO. 16 a. DOES THE PUBLIC HAVE A SIGNIFICANT INTEREST IN THE FINANCIAL QUALIFICATIONS OR BACKG D RECEIVE REDUCED LEVELS OF CABLE SERVICES AND TECHNOLOGY IF GOVERNMENT DID NOT INQUIRE IN YES X NO [*1354] b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," DOES THE RFP PROCESS PR YES X NO c. WAS "FINANCIAL QUALIFICATIONS" A SHAM USED BY DEFENDANTS AS A PRETEXT FOR JUSTIFYING YES NO X SPECIAL VERDICT NO. 17 a. DOES THE PUBLIC HAVE A SIGNIFICANT INTEREST IN THE TECHNICAL QUALIFICATIONS OR BACKG RECEIVE REDUCED LEVELS OF CABLE SERVICES AND TECHNOLOGY IF GOVERNMENT DID NOT INQUIRE INT YES X NO [*1355] b. IF YOUR ANSWER TO THE PRECEDING QUESTION IS "YES," DOES THE RFP PROCESS PR YES NO X c. WAS "TECHNICAL QUALIFICATIONS" A SHAM USED BY DEFENDANTS AS A PRETEXT FOR JUSTIFYING YES NO X SPECIAL VERDICT NO. 18 UNDER THE INSTRUCTIONS ON DAMAGES GIVEN TO YOU, [**64] WHAT AMOUNT OF DAMAGES, IF A [*1356] ANSWER "Zero" DATED: Foreperson