Document ID: A:\TURNER1.TXT 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. Civil Action No. 92-2247, Civil Action No. 92-2292, Civil Action No. 92-2494, Civil Action No. 92-2495, Civil Action No. 92-2558 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 819 F. Supp. 32; 1993 U.S. Dist. LEXIS 4399; 72 Rad. Reg. 2d (P & F) 366 April 8, 1993, Decided April 8, 1993, Filed COUNSEL: For TURNER BROADCASTING SYSTEMS, INC., ARTS & ENTERTAINMENT NETWORK, BLACK ENTERT LITE CORPORATION, QVC NETWORK, INC., THE TRAVEL CHANNEL, INC., USA NETWORKS, Plaintiffs: B EVISION, INC., Plaintiff: John Pope Cole, Jr., (202) 659-9750, Suite 200, COLE, RAYWID & B tiff: H. Bartow Farr, III, (202) 775-0184, Suite 350, KLEIN, FARR, SMITH & TARANTO, 2550 M , 2550 M Street, N.W., Suite 800, Washington, D.C. 20037, (202) 457-6000. For TIME WARNER e Lafayette Center, 1155 21st Street, N.W., Washington, D.C. 20036-3384. Robert D. Joffe, For FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Defendants: John R. Tyler Washington, D.C. 20530. For NATIONAL ASSOCIATION OF BROADCASTERS, Movant: Bruce J. Ennis, Jr., 223-4400, JENNER & E, CORPORATION FOR PUBLIC BROADCASTING, Movants: Mark Henry Lynch, 662-5544, COVINGTON & B ) 457-0800, Suite 119, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITOL AREA, 1400 2 venue N.W., Suite 800, Washington, D.C. 20036, (202) 828-2000. For ASSOCIATION OF INDEPEND N OF MACHINISTS AND AEOROSPACE WORKERS, AFL-CIO, Movant: Andrew Jay Schwartzman, 232-4300, BARAFF, KOERNER, OLENDER & HOCHBERG, 5335 Wisconsin Avenue, N.W., Washington, D.C. 20015. ES, INC., The Local Community Broadcasters, INTERNATIONAL TELEVISION BROADCASTING, INC., T The Local Community Broadcasters, ZANTECH, INC., The Local Community Broadcasters, INTERN rry, (718) 768-2209, Suite 2C, 509 12th Street, Brooklyn, NY 11215, (718) 768-2209. For TV MERICA'S PUBLIC TELEVISION STATIONS, Collectively "the public broadcasters", PUBLIC BROADC hanan, (202) 662-5270, COVINGTON & BURLING, 1201 Pennsylvania Avenue, N.W., P.O. Box 7566, TE, 1201 New York Avenue, N.W., Penthouse, Washington, D.C. 20005-3919. (202) 789-3400. Fo llectively the "Specialty Broadcasters", Movants: Colby M. May, 1000 Thomas Jefferson Stre TS AND AEOROSPACE WORKERS, AFL-CIO, OFFICE OF THE UNITED CHURCH OF CHRIST, Movants: Andrew For CITY OF LOS ANGELES, CALIFORNIA, ALLIANCE FOR COMMUNITY MEDIA, ALLIANCE FOR COMMUNICAT D.C. 20036, (202) 785-0600. For CITY OF NEW YORK, THE, Amicus: Robert Alan Garrett, (202) Suite 119, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITOL AREA, 1400 20th Street, ticut Avenue, N.W., Suite 800, Washington, D.C. 20036, (202) 637-9000. For U.S. SENATE, Am OF STATE CABLE AGENCIES, Amicus: Edward P. Kearse, (518) 474-1022, 21st Floor, NATIONAL A 02) 296-0533, Suite 222, ROBERTS & ECKARD, P.C., 1919 Pennsylvania Avenue, N.W., Washingto 20036, (202) 828-2000. For BELL ATLANTIC CORPORATION, Amicus: John Thorne, (202) 392-0895 JUDGES: [**1] Before WILLIAMS, Circuit Judge, JACKSON and SPORKIN, District Judges. OPINIONBY: THOMAS PENFIELD JACKSON OPINION: [*35] MEMORANDUM AND ORDER THOMAS PENFIELD JACKSON, District Judge Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 199 rry the video signals of certain commercial and non-commercial educational television broa rovisions violate [*36] their First Amendment rights. Upon consideration of the entire - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 During the pendency of this litigation, no fewer than 16 parties have sought to int been granted leave to participate herein as amici. All applicants for intervention have be urt has, contemporaneously with the filing of this opinion, issued an order granting all p - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**2] Background On October 5, 1992, Congress overrode a Presidential veto to enact the 1992 Cable Act. cipal franchising authorities; it imposes restrictions on distributors of cable programmin Sections 4, 5, and 6 of the Act limit the freedom of cable operators to refuse to carry iffs' constitutional challenge to these three sections is the matter presently to be addre - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 "Broadcast" stations reach their viewers by transmitting electromagnetic waves thro to herein as "programmers," do not have access to the electromagnetic spectrum, and must f rld. Cable "operators" develop a package of programming services by creating their own pro hese programming packages are generally sent by cable operators to their subscribers by co - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**3] Section 4 of the Act requires all cable system operators with more than 12 channels to the cable system. n3 The operator need not devote more than one-third of its active useabl al of one or two "qualified" low power broadcast stations. n4 Cable systems with 12 or few not subject to the requirements of section 4 at all. An operator must carry the entire pro g a right to mandatory carriage must be carried by the cable operator, at the station's el y 1, 1992. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 An operator's television market is defined by regulation, see 47 C.F.R. @ 73.3555(d )(1)(C)). n4 Low power television stations are small broadcast operations with a limited geograp ull power station attempting to occupy the same frequency. See generally 47 C.F.R. @@ 74.7 System, BC Docket No. 78-253, 51 Rad. Reg. (P & F) 476 (P & F) (April 26, 1982) [hereinaf - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**5] Section 5 of the Act requires operators of cable systems able to deliver signals on mor al station's programing substantially duplicates that of another station carried by the sy tations. Section 5, like section 4, directs cable system operators to carry the entire pro ommercial station having a mandatory carriage right must be carried, at its election, on i - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 A qualified noncommercial educational station is (1) a station licensed by the FCC ted by a municipality which transmits predominantly noncommercial programs for educational - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**6] Section 6 of the Act, which becomes effective on October 5, 1993, prohibits cable opera s local broadcasters with an option to request mandatory (but uncompensated) carriage on a d will pay for the privilege; n6 less popular broadcasters will be able to force their car - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Prior to the 1992 Act, cable operators were free to carry the signals of local broa st signals if they pay royalty fees determined pursuant to an administrative schedule. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**7] On the same day that the 1992 Cable Act became law, Turner Broadcasting System, Inc., t the First Amendment, asking for declaratory and injunctive relief. n7 Within the ensuing llenging sections 4, 5 and 6 of the Act, two of these plaintiff groups brought First Amend 782 ("the 1984 Act"). n9 This three-judge U.S. District Court ("the Court" or "this Court" ] or [5]" of the 1992 Act. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Turner Broadcasting Sys., Inc. v. FCC, CA No. 92-2247. Turner later amended its com n8 Daniels Cablevision, Inc. v. United States, CA No. 92-2292; Time Warner Entertainme n9 Time Warner, CA No. 92-2494; Discovery, CA No. 92-2558. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On November 23, 1992, this Court consolidated these five cases for the "purpose of dete v. FCC, CA No. 92-2247, order at 2 (D.D.C. Nov. 23, 1992) (three-judge court). Four of th upon the Court's approval of the parties' assent to a "standstill order" proposed by the laim other [**9] than the must-carry claims, see Turner Broadcasting Sys., Inc. v. FCC, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 All motions for preliminary injunction with respect to sections other than 4 and 5 n the merits is forthcoming. All of the plaintiffs challenge section 6, the retransmission consent provision, on the al, plaintiffs' challenge to section 6 must fail, and the Court expresses no opinion on th ional ruling, this challenge is before the single-judge court. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**10] The matter, i.e., the constitutionality of sections 4 and 5, is now before the Court on ' cross-motion to dismiss; on an intervenor-plaintiff's motion for preliminary injunction I. The plaintiff cable system operators and programmers contend that the must-carry provis system operators to devote a portion of their finite signal-carrying capacity to deliver t her programming they might prefer to carry. Must-carry also violates the First Amendment r cribers, n11 compelling them perforce to deliver some programming they might otherwise cho e programmers covet. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 The plaintiffs note that the 1992 Act not only requires operators to carry local b be codified at 47 U.S.C. @ 543(b)(7)(A)). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The concept of governmentally ordained mandatory carriage of broadcast signals is not a on the same premise that gave rise to it then: that local broadcast stations, unable to s Rep. No. 92, 102d Cong., 1st Sess. 42-46 and H.R. Rep. No. 628, 102d Cong., 2d Sess. 50-5 ng goes, their advertising revenues will decrease correspondingly. Local over-the-air broa tial not merely to ensure the continuing availability of programming with a "local" flavor ble connection. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 The early development of must-carry regulation is comprehensively traced in Quincy - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**13] Not surprisingly, the parties have expended considerable effort and resources arguing o st be subjected to exacting First Amendment scrutiny; if they are not per se unconstitutio unications v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989); Minneapoli the must-carry provisions need only be judged by the interest-balancing traditionally appl his inquiry, originating in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S hown to promote a significant government interest and not to burden substantially more spe II. In 1989, Congress began the first in a series of several hearings to assess the video p Act was passed. n15 Congress' principal finding was that, for a variety of reasons, concen Cable Act @@ 2(a)(2), (4), & (15). See generally 1992 Cable Act @ 2(a); 1991 S. Rep. No. 9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Se 1st Cong., 1st Sess. (1989) [hereinafter Hearing of June 1989]. [**15] n14 See, e.g., Hearings before the Subcommittee on Telecommunications and Finance of t Science and Transportation, 101st Cong., 1st Sess. (1991); "Must-Carry:" Hearing before t 1989]. See generally 1991 S. Rep. No. 92 at 3-5 (1991) (discussing the 11 Senate hearings, he result of 13 days of hearings and 113 different witnesses. We have had countless number n15 See generally 1991 S. Rep. No. 92; 1992 H.R. Rep. No. 628 (1992); 1992 H.R. Rep. N - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**16] Congress specifically found that cable had become the "dominant nationwide video medium 1992 Cable Act @ 2(a)(3), and cable service is available to almost 90% of the nation, 199 a)(17). Congress also found that despite the dominance of cable, there is insufficient competit dinary expense of constructing more than one cable television system to serve a particular tally concentrated -- many operators share common ownership. See 1992 Cable Act @ 2(a)(4). programming enterprises. Id.; see also FCC Report, supra note 16, at PP 77-80. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 Evidence received by Congress indicated that less than 1% of the cable operators i 25, 1989, supra note 14, at 40. See generally Debates, 138 Cong. Rec. S400, S436 (comments ore than one). n17 See also Hearings of June 1989, supra note 13, at 78 (testimony of Prof. Bagdikian - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Congress determined that geographic monopolization, horizontal concentration and vertic on contributes to this cable "bottleneck" by providing cable operators with economic incen e of effective competition among operators have obstructed broadcaster access by creating , operators have an economic incentive to refuse carriage of broadcasters' signals to redu In summary, Congress concluded that the economic forces at work and the market conditio o remedy unfair trade practices, to preserve local broadcasting [**19] for those who do ity of sources of video programming, id. at @ 2(a)(6)-(11). This Court is of the opinion that, in enacting the 1992 Cable Act, Congress employed it commodity Congress undertook to regulate is the means of delivery of video signals to ind significance. The same is true of printing presses, or broadcast transmitters; loudspeake ng to infringe the First Amendment freedoms of those by whom they will be used to express nt speech is affected at all, it is simply a byproduct of the fact that video signals have In other words, the Court holds that the must-carry provisions are essentially economic egulation is justified by the existing structure of the cable business itself, and by the receivers. So perceived, the Court concludes that the must-carry provisions are, in inten have in contemplation to deliver. [*41] III. That the First Amendment is to some extent implicated whenever a government endeavors t pplication of the First Amendment to various laws regulating cable, n19 the question of th . Circuit has avoided its resolution. See Century Communications Corp. v. FCC, 266 U.S. Ap 1, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169, 90 L. Ed. 2d 977, 106 S. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 90 L 452-53; see also Leathers v. Medlock, 113 L. Ed. 2d 494, 111 S. Ct. 1438, 1442-43 ("cable igorously contend that the plaintiff programmers have raised no First Amendment issues bec ammers do not merely contend that Congress has failed to provide a benefit to programmers ogrammers. This is a First Amendment claim. Quincy, 768 F.2d at 1451-52. [**22] n19 See, e.g., Preferred Communications, Inc., 476 U.S. 488, 90 L. Ed. 2d 480, 106 S. Century Communications Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292 (D.C. Cir. 1987) Boulder, 660 F.2d 1370 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001 (1982); Home Box Riviera Beach, 773 F. Supp. 383 (S.D. Fla. 1991); Century Federal, Inc. v. Palo Alto, 710 n20 As discussed below, in both cases, the court held FCC must-carry regulations uncon U.S. 488, 90 L. Ed. 2d 480, 106 S. Ct. 2034 (holding that municipal restrictions on cable - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It appears to this Court that the must-carry provisions of the 1992 Cable Act squarely restrictive means to accomplish what is, primarily and essentially, economic regulation o the criteria established in O'Brien and its progeny. To be sure, in Quincy and Century, the D.C. Circuit held FCC rules [**24] requiring c th opinions, to note that must-carry rules are not per se unconstitutional. Century, 835 F rnmental interest of sufficient moment -- whether "compelling" or merely "significant" -- ry at all. The record in support of the 1992 Cable Act, in contrast, was made by Congress. Federal [*42] IV. All parties agree (at least, the plaintiffs concede) that the must-carry provisions are ny views expressed in the programming of either. The provisions do not compel the carriage rtheless, a law need not be viewpoint-based to be subject to strict First Amendment scruti ve of the position taken on any issue. Consolidated Edison Co. v. Public Serv. Comm'n, 447 S. Ct. 1157 (1988) (placards embarrassing to or disparaging of a foreign government) (plu The plaintiffs contend that strict scrutiny applies because the must-carry provisions c ech of broadcasters over that of operators and programmers. But none [**26] of the epit . Strict scrutiny applies only if governmental regulation is overtly content-based or pres , is to be strictly scrutinized only if it appears that the government has prescribed the cited by the plaintiffs can be seen to have involved regulation telling the speaker what ble fundraisers to disclose percentage of receipts actually devoted to good works); Pacifi ail [**27] fundraising appeals of its rate-making opponents); Wooley v. Maynard, 430 U.S. llo, 418 U.S. 214 (1974) (state law requiring newspaper to carry replies of political cand - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 Compelled speech presents two distinct content-related dangers. First, it may caus may deter a speaker from engaging in speech that is inconsistent with the compelled speech . 1, 10-11 & n.7, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986) (plurality opinion). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - These cases stand in [**28] sharp contrast to PruneYard Shopping Center v. Robins, tioning at a privately owned shopping center. Significantly, the speaker's right to speak the speaker access to his shopping center, the owner would be affected to any degree in hi "Speaker-partial" regulations, or those that purportedly favor one group of speakers at Cir. 1991); see id. at [*43] 1238-39 (Williams, J., concurring). Buckley v. Valeo, 42 t struck down a statutory provision imposing a $ 1,000 limit [**29] on the amount which those of modest means with an opportunity to participate in the political process equal t uder" than those spending less than $ 1,000, but was also different and, more importantly, lity alone, however, absent evidence that the government's distinction between groups of s - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 The plaintiffs contend that any regulation that singles out a particular segment o certain taxes that single out members of the press, see Minneapolis Star, 460 U.S. 575, 7 persuaded that mandatory carriage of local broadcasters, as opposed to the specifically ta to inform and entertain the public as they wish. See Grosjean v. American Press Co., 297 U . Furthermore, specifically targeted differential taxes raise an inference that government ifferential taxation. Minneapolis Star, 460 U.S. at 585. This inference does not arise wit generally applicable means. The Court thus concludes that the must-carry provisions will - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**30] A regulation is deemed to be content-neutral if it is addressed to ends unrelated to th . Ct. 2533 (1989). As the Court has previously noted, because the record indicates that Co be said with those signals, the must-carry provisions appear to be unrelated to the conte V. The plaintiffs argue that the government's asserted interest in "promoting widespread d serve local broadcast television to promote "diversity," even for those who receive cable - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 See 1992 Cable Act @ 2(a)(6) ("there is a substantial governmental and First Amend ough cable systems may provide programming on a wide range of subjects, the diversity of a etro Broadcasting, Inc. v. FCC, 497 U.S. 547, 570-71, 111 L. Ed. 2d 445, 110 S. Ct. 2997 ( y reliance with respect to diversification of content . . . .") (citations omitted, emphas - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**31] [*44] But if the must-carry provisions are content-related at all, they are only marg ween the subject matter and/or emphasis of the video signals emitted by local broadcasters tion that they have as much to say of interest or value as the cable programmers who servi type of nefarious governmental activity guarded against by the First Amendment generally Moreover, even if a "local" versus "non-local" dichotomy of message exists, and can be ured, and of equally "local" dimensions having [**32] nothing whatsoever to do with mess nd there are manifestly limits to the number of such licenses likely to be issued. They vi ent they wished subject only to administratively set royalty fees. The technology they emp eiver a vastly greater number of channels to watch than all local broadcasters combined. T er than as a synonym for "provincial" as an adjective applied to programming and all were The Supreme Court has observed that "differences in the characteristics of [**33] new Ct. 1239 (1975); see Quincy, 768 F.2d at 1448. Compare Red Lion Broadcasting Co. v. FCC, ance, in large part, due to such "local" factors -- artifacts of a sort of the industry's stries having supplanted older rivals, have nevertheless lead to regulation of such indust - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 Although this maxim is oft-repeated, the Supreme Court has infrequently invoked un ourt has found content-based, fair access regulation to be justified by scarcity of electr lations to be justified by broadcasting's pervasive presence and unique accessibility to c lifornia shopping center" justify special First Amendment treatment. See PruneYard, 447 U. ly has ruled that all regulation of cable speech, whether or not content-based, is subject ity of Indianapolis, 694 F.2d 119 (7th Cir. 1982). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**34] Absent an indication of a Congressional purpose, whether avowed or covert, to effect a pears on its face to be an effort to level the economic playing field in the television in t conditions. The Court accordingly concludes that O'Brien and Rock Against Racism provide - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 The plaintiffs correctly note that the Supreme Court, in Tornillo, rejected the su on in Tornillo has no application in this case. Importantly, the regulation in Tornillo wa illo, 418 U.S. at 256-58. The government, in Tornillo, sought to use economic scarcity as ntext that the Court rejected the argument that economic barriers to newspaper access just communications in order to overcome technological, structural, and historic, as well as e The Court notes that its conclusion that contextual factors unique to cable require rel ve raised the issue of whether the courts should strictly scrutinize a congressional decis ct to the factual findings made by Congress, the Court has provided Congress with the leve mbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 103, 36 L. Ed. 2d 772 special First Amendment treatment. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**35] VI. The inquiry to be made under the O'Brien-Rock Against Racism formulation is to ascertai 8 F.2d at 1454, and whether they are "narrowly tailored" to serve that interest, O'Brien, tion that the government has identified as in need of correction, and if it does not burde Congress' objective in enacting the mandatory carriage requirements, it has declared, w rvice and for those who do not. See 1991 S. Rep. No. [**36] 92 at 58; Federal Defendant' see Quincy, 768 F.2d at 1454, other cases establish that the importance of broadcasting ge 0 L. Ed. 2d 1001, 88 S. Ct. 1994 & nn. 38 & 39 (1968); National Ass'n of Broadcasters v. FCC, 239 U (1984); n27 cf. Metro Broadcasting, 497 U.S. at 566-68, 572-73. See generally Communicatio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 1992 H.R. Rep. No. 628 at 50 ("local television stations are central to [a competi entertainment medium.") [**37] n27 The Supreme Court, in Capital Cities, considered an Oklahoma Law prohibiting state e Court rejected the state's argument that its power to regulate alcohol under the Twenty- ial federal interest" in protecting broadcast television for those that do not receive cab - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The plaintiffs submit that even if averting the demise of local broadcasting is deemed ir own statistics, the plaintiffs contend that broadcasting is alive and well, and has act Congress, however, did not agree, and in sharp contrast with the meager record before t embled by Congress itself. See generally 1991 S. Rep. No. 92 at 42-46 (citing Federal Comm 50-57 (same). Congress received evidence demonstrating, to its satisfaction, that cable op ing broadcasters being carried to remote channel positions. 1991 S. Rep. No. 92 at 42-43; ors' attempts to obtain a competitive advantage, not a function of consumer [**39] dema ficially diminish the audiences of local broadcasters, and, in turn, decrease their revenu broadcast television is not flourishing; it is in serious jeopardy. 1992 Cable Act @ 2(a) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 The Senate Committee on Commerce, Science, and Transportation, for example, receiv system operator is selling advertising or in which the operator has an equity interest or operator's programming or its advertising availabilities." Id. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**40] Furthermore, even if the state of the broadcasting industry is not now as parlous as th n market, and can henceforth exercise the attendant market power. The Court does not find bulk of any prospective viewing audience; unconstrained, cable holds the future of local of the nation's legislature, see Metro Broadcasting, 457 U.S. at 569; Columbia Broadcasti [*47] The plaintiffs also contend that the must-carry provisions are not "narrowly ta the present. Rather than dispute their effectiveness as a means to the end, therefore, th First, they argue that Congress' goal can be achieved by the use of rudimentary technol ill then determine the victor in an idealized "marketplace of ideas." Second, they contend ise carry in a market in which there is actually a surfeit of "local" programming on cable ket-adjusting objective. It is, of course, conceivable that there are less restrictive alternatives that Congres settle for means that serve its interests less effectively merely because an alternative ress actually found that input-selector switches were ineffective simply because viewers t 1992 Cable Act @ 2(a)(17). Of more significance, however, is that Congress further found 41-46; 1992 H.R. Rep. No. 628 at 50-58. Once again, the Court is unwilling to second-guess mers [**43] was not what it had in mind. See FEC v. National Right to Work Comm., 459 U Finally, the Court concludes that the must-carry provisions do not unnecessarily burden and non-broadcast programmers are free to compete for access to those channels not dedicat , under section 5, operators with less than 36 useable channels need not carry more than 3 ity of cable operator and programmer speech "opportunities," as it were, it leaves open ad uires no more. Compare Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 69 L - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Furthermore, it appears to the Court that the burdensomeness of the must-carry pro in the absence of the request. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Conclusion The 1992 Cable Act represents a major congressional effort to bring order and stability the policies the national legislature has chosen to pursue in such endeavors. That, of cou nvoked in the name of the First Amendment. Simply put, the governmental intention evinced e First Amendment protects. VII. National Interfaith Cable Coalition ("NICC") seeks to enjoin enforcement of sections 4 st Amendment. NICC's motion is opposed by the federal defendants, who have filed a motion Clauses of the First Amendment. NICC is an "interfaith consortium" of several Judeo-Christian religious groups in the U he many cable systems across the country. Like the other programmers, NICC objects to the By mandating carriage of the religious programming of local broadcasters, the provisions r ligious fare. NICC's Religion Clause challenges center on the premise that the religious programming ws and are often critical of other viewpoints, while NICC transmits messages that are more llicit liaison between the federal government and particular sectarian interests in violat lause. To comport with the Constitution under the now familiar Establishment Clause test, gove overnment entanglement with religion." Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 56, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973)). Even if the Court were to accept NICC's majo he Establishment Clause. There is no evidence that the must-carry provisions were intended ill be perceived to represent governmental endorsement of particular religious views or re The provisions clearly reflect a secular purpose, as discussed above. There is nothing hat must-carry represents a deliberate attempt to favor or disfavor any religious views or [*49] Similarly, the must-carry provisions have a primary effect that neither advance 463 U.S. 388, 393, 398-402, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (1983); see Walz v. Tax Comm ary effect inquiry. See Widmar v. Vincent, 454 U.S. 263, 273-74, 70 L. Ed. 2d 440, 102 S. Allegheny v. ACLU, 492 U.S. 573, 592-93, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989); see W t 274-74. n30 Compare Mueller, 463 U.S. 388, 77 L. Ed. 2d 721, 103 S. Ct. 3062 [**49] with Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1983) (holding unconstituti programming contains any religious fare at all. Accordingly, the Court cannot conclude th - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 As the Supreme Court noted in Widmar, "if the Establishment Clause barred the exte r, 454 U.S. at 274-75 (citations omitted). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Nor can the Court conclude that the [**50] must-carry provisions foster excessive go between the government and sectarian organizations or affairs. Hernandez v. Commissioner o ng must-carry, become involved in any activity in the nature of religious oversight. To be elevision market. 1992 Cable Act @ 4. The must-carry provisions accordingly present no dan ries into religious doctrine" creates no Establishment Clause infirmity. Hernandez, 490 U. NICC contends that the must-carry [**51] provisions violate the Free Exercise Clause ffect of a facially religion-neutral law that is generally applicable to all operators, pr e must-carry provisions do not, in any way, foreclose dissemination of any religious messa VIII. The Local Community Broadcasters ("LCB"), an intervenor-defendant in these consolidated s. By way or relief, LCB asks this Court to require the FCC to provide expansive mandatory proposition, the Court finds that section 4 does not abridge LCB's constitutional rights. In the late [**52] 1970s and early 1980s, the FCC began to implement a program for p geographic range. In addition, LPTV stations are licensed by the FCC on a secondary basis; generally 47 C.F.R. @@ 74.701-74.781 (1992); 1982 LPTV Inquiry, supra note 4. The Commissi on market, especially for minority broadcasters. n32 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n31 An Inquiry Into the Future Role of Low Power Television Broadcasting and Televisio n32 See id. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**53] The 1992 Cable Act provides very limited mandatory carriage rights to LPTV. Under secti de imposed by the section. Furthermore, a low power station is eligible for mandatory carr se with 36 channels or more need only to carry two qualified LPTV stations. LCB's constitutional claims are similar to those made by the programmers. LCB claims th ural and all non-rural LPTV stations, the provisions impede the ability of LPTV stations t ices. Although LCB's claims are similar to those of the programmers, the relief they seek is stations. The success of LCB's claim accordingly rests on the untenable position that the the relief sought by LCB and that sought by the programmers makes clear that LCB is not c . n33 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n33 Because LCB asks this Court to uphold a statute that is alleged to burden their ex Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987), for exa at 1442-43. The plaintiffs in both cases raised direct First Amendment claims because the n taken by LCB demonstrates that its sole constitutional concern is that the must-carry pr - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**55] Unless viewpoint-based, disparate governmental treatment of different speakers, unlike efits to one group of speakers but not others are constitutional if there are rational leg 85); Regan v. Taxation with Representation, 461 U.S. 540, 545-46, 76 L. Ed. 2d 129, 103 S. h Amendment unless they are aimed at the suppression of ideas); Walsh, 927 F.2d at 1235-37 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n34 LC rations are often run by minority groups, there is no allegation that LPTV operators are a - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**56] LPTV was conceived and created as a secondary service, and has never enjoyed rights coe s inception. Once again, in the absence of any reason to suspect Congress of message-regul at 548. Nothing at all appears to be irrational about a legislative policy judgment to tre For the foregoing reasons, it is, this 8th day of April, 1993, ORDERED, that the plaintiffs' motions for summary judgment on the must-carry claims are FURTHER ORDERED, that the federal defendants' motion to dismiss the must-carry claims a FURTHER ORDERED, that the motion of intervenor-defendant Local Community Broadcasters f FURTHER ORDERED, that the complaints of the plaintiffs and the intervenor-plaintiffs, i FURTHER ORDERED, that the complaints of the plaintiffs, insofar as they challenge secti FURTHER ORDERED, that the cross-claim of intervenor-defendant Local Community Broadcast FURTHER ORDERED, that all other pending motions relating to the constitutionality of se Thomas Penfield Jackson U.S. District Judge Stanley Sporkin U.S. District Judge ORDER - April 8, 1993, Filed Upon consideration of the several motions for intervention herein, it appearing to the ORDERED, that all pending motions for intervention herein, insofar as the applicants se granted pursuant to Fed. R. Civ. P. 24(b), and it is FURTHER ORDERED, that all pending motions for intervention herein, insofar as the appli Thomas Penfield Jackson U.S. District Judge ORDER - April 8, 1993, Filed It is, this 8th day of April, 1992, ORDERED, that all pending motions for leave to file post-argument memoranda herein are FURTHER ORDERED, that all pending motions for the Court to take judicial notice of admi Thomas Penfield Jackson U.S. District Judge CONCURBY: STANLEY SPORKIN CONCUR: CONCURRING OPINION STANLEY SPORKIN, District Judge. I concur. I believe that Plaintiffs have not made a case under the First Amendment that rights of this nation's citizens. I write separately to emphasize that, because any burde visions of the Cable Act of 1992 implicate the First Amendment to the extent to which Plai For many years, Congressional policy regarding the telecommunications industry has had governmental decisions in prior years, the cable industry threatens to achieve monopolist l. Congress' finding is based on an exhaustive Congressional record, and deserves the Cour panies' [*52] growing economic might and to restore competitive balance in the telecom I This case involves two young industries which are essentially less than a half century From early on, because of the space limitations of the broadcast spectrum, a means had to om the start this infant industry was born into a system of heavy regulation. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The FCC, created in 1934, became the principal vehicle for overseeing the televisio ly lucrative licenses, which in effect were being given away by the government. Here in th ter commodity that would confer rights on those selected to receive a "free" Government li - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**61] The cable industry dates bask to 1947, when it first emerged as a satellite system. Cab erests of rural America, Congress began to explore ways to protect and foster the nascent - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 John Walson, Sr., is credited as being the founder of cable television. Mr. Walson In 1947, Mr. Walson was the owner of an appliance store in Mahanoy City, near Allentown He erected an antenna tower atop New Boston Mountain overlooking Mahanoy City and ran w 2 a month. His company, called Service Electric Cable TV, now has more than 400 employees and serv Mr. Walson made cable television history again in 1972, when his company became the fir - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**62] For several decades, while studying the issue, Congress left regulation of the cable in try. In the mid-1970s, Congress determined that a number of regulatory and marketplace obsta ress enacted several laws to support the growth of the industry. In 1976 Congress passed legislation granting cable systems' copyright licenses to retra utility companies were exacting unreasonable rates for the operators' use of utility pole aw No. 95-234, @ 6 (1978), codified as amended at 47 U.S.C. @ 224. [**63] Through the p service to the public." n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 S. Rep. No. 580, 95th Cong., 1st Sess. 14 (1977), reprinted in 1978 U.S.C.C.A.N. 10 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Meanwhile, since cable often required use of local telephone lines, state and municipal e industry was even more pervasive than that of the broadcast industry in general, often t Perceiving a need to establish a national policy for cable television, Congress passed "promote competition in cable communications and minimize unnecessary regulation that [* The 1984 Cable Act contained several provisions to support cable's competitive position ve competition, to be defined by the FCC, (2) limited the obligations they could impose on At the same time, Congress took steps to assure that cable would contribute to the dive the 1984 Act prohibited ownership of a cable company by the owner of a television broadcas ain cable channel capacity be devoted to public, educational and governmental channels. As a result [**65] of technological innovation and creativity and supported by feder nd that of today. Cable has expanded television communications beyond the wildest imaginat levision broadcasting as its main objective, through creativity and vision, cable now has Although cable has brought about much good, there have been excesses which, over the ye as accompanied their success, behavior which threatens the vitality of broadcast programmi ity on [**66] the broadcast spectrum, it has created another scarcity--namely access t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See Judge Jackson's Opinion, supra, for a discussion of the Congressional findings - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In finding that the must-carry provisions of the Cable Act do not violate the First Ame as today. In addition to the support provided by federal legislation in the 1970s and by t Second, cable companies enjoying such de facto monopolies wield enormous power over pro st in the programming as a condition [**67] of carriage, and some have done so. The sub Third, as an increasing proportion of the public subscribed to cable (now 60% of Americ rimary [*54] means for transmission of all broadcast signals in a locality, it has bec nce. Since it is often the case that cable and broadcast companies are in direct competiti even terminating its broadcast clients. Congress specifically found that broadcast stations, by being part of the local communi growing [**68] monopolistic hold on the telecommunications industry, Congress reasoned, terest in being able to obtain access to a broad selection of local news and public and ed II Sections 4 and 5 of the Cable Act of 1992 are a form of regulation, designed to lessen its face, the Act's objective is to enhance the diversity of television voices protected im measure to accomplish this end, "must-carry" is an integral part of the solution to the - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 At some point, technological innovation will enable cable systems to accommodate al mmunication's Inc., the nation's largest cable television company, is about to "unveil an to deliver hundreds of TV channels [and] 'video-on-demand' programming" to its subscribers However, while fiber-optic and other technological innovations may be on the verge of a . In the context of today's technological landscape, the Cable Act of 1992 must be viewed - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**69] Plaintiffs have come before this Court, not because their freedom of speech is seriousl protections it was designed to afford. To the extent to which the First Amendment is impli Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 is the stand Plaintiffs raise two arguments in support of their claim. First, the cable operators ar ment. Second, the cable programmers argue that the must-carry provisions unfairly prefer t A. Operators' Claim It is well-established that under the protections afforded by the First Amendment indiv 1428, 51 L. Ed. 2d 752 (1977). The Supreme Court has extended this principle to apply to ific Gas & Elec. v. P.U.C. of California, 106 S. Ct. 903 (1986), respectively. While the plaintiffs would have the Court extend the coverage of Tornillo and Pacific G Tornillo broadly recognized the free speech rights of newspapers. Tornillo involved sta ear that a statute which infringes on a newspaper's editorial rights is highly suspect und A continuum exists between compelled speech which is content based and that which incid hen they are not, some First Amendment challenges lend themselves to the following maxim: "Content-neutral" regulations are those that "are justified without reference to the co a city zoning ordinance restricting the location of adult theaters was not aimed at the co Perhaps more similar to the case at bar is Regan v. Taxation with Representation, 461 U organizations organized and operated exclusively for certain statutorily-prescribed purpos [**72] groups of speakers. Finding "no indication that the statute was intended to supp - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Section 501(c)(3) grants tax-exempt status to organizations "organized and operated ts competition . . ., or for the prevention of cruelty to animals[,]" provided that no sub - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Like the ordinance in Renton and the statute in Regan v. Taxation With Representation, to suppress any ideas[.]" Must carry simply does not constitute a content-based [**73] The right-of-reply statute in Tornillo and the California Public Utilities Commission's & Electric, the must-carry provisions of the Cable Act of 1992 neither "penalize the expr 8. The must-carry provisions do not "restrict [Plaintiffs'] speech to certain topics or vi which [they] may disagree" nor make them "feel compelled to respond to arguments and alle Cable operators are left with ample channels to disseminate their own views, and there to avoid controversy, thereby reducing the free flow of [*56] information and ideas." I volume and quality of coverage, there will be time enough to reconsider the constitutiona Plaintiffs argue that the prohibition outlined in Tornillo and Pacific Gas & Elec. agai case. In those cases, the clear content-triggered operation of the governmental regulatio onduit for news, comment, and advertising", Tornillo, 94 S. Ct. at 2840, [**75] such in While cable operators do exercise some control and judgment about the mix of overall pr sources of information. If the Cable Act compelled the cable programmers to carry the broa nted in this case. Requiring cable operators to carry the programs of broadcasters, whatev ter the mix of information available to the public. B. Programmers' Claim Plaintiff programmers challenge the must-carry provisions as impermissibly favoring the "Generally, statutory classifications are valid if they bear a rational relation to a l dom of speech, or employ a suspect classification." Regan v. Taxation With Representation, t Amendment, heightened scrutiny is not warranted in this case. n7 Since I agree with Judg - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Moreover, a requirement that cable operators carry broadcast programming cannot be e standing to assert this claim. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally sion of the Fifth Amendment or any other legal provision. Upholding the 1992 Act against P ulate itself. Of course, even the most avid proponents of free competition recognize that III Plaintiffs' attempt to substitute Congress' regulation of the cable industry with regul industry that came into existence over 150 years after the Bill of Rights was adopted. [*57] Here, the Government has stepped aside to allow the private sector to perform s oadcasters or other programmers because of the regulatory method chosen. To the [**78] ations. Congress has determined that cable companies' growing anti-competitive behavior and mon is danger by enacting the Cable Act of 1992. In so doing, Congress was not motivated by a mpanies' monopolies and to preserve the diversity of voices represented by local, public a ted by Congress is an appropriate one, it must stand and may not be second guessed by the DATE 4/8/93 Stanley Sporkin U. S. District Judge DISSENTBY: STEPHEN F. WILLIAMS DISSENT: [**79] DISSENTING OPINION WILLIAMS, Circuit Judge, dissenting: The must-carry provisions of the Cable Television t over a third of their channels for local broadcast stations. (The one-third-plus figure ation has a right to its specific "channel position" on a cable system. 1992 Act at @@ 4(b In considering cable, Congress confronted a very real problem -- one for which it has a fact, while there are several thousand cable operators in the United States, only 53 commu ort of situation. The "bottleneck" holder [**80] may be ordered to serve all parties th one companies have access to local telephone networks. 47 U.S.C. @ 202; and see, e.g., MTS vision of such compulsory access under the "essential facilities" doctrine of the antitrus e tricky pricing issues. n1 But mandatory access rules of this sort give no special privil - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See, e.g., William J. Baumol, "Deregulation and Residual Regulation of Local Teleph - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**81] In fact, in 1984 Congress adopted provision for neutral, compulsory access to cable in endent programmers to lease access on cable systems, at reasonable prices to be set by the operator possesses, 47 U.S.C. @@ 532(b)(1)(a)-(d)), [*58] Congress remains free to expa would be the likely beneficiaries of operator discrimination and who are therefore in no The must-carry provisions, by contrast, extend the privilege of access only to a specia 82] but quite explicitly, on a finding about their content -- that they were "an importa cause of FCC licensing requirements, every such local broadcaster is legally bound to "pro iation of Broadcasters ("NAB") Corrected Memorandum at 24-25 (emphasizing force of mandate entails content requirements. A number of parties challenge these mandates, among them the cable operators who must c k, producer of the Discovery and Learning Channels, whose programming will be supplanted. cable. If the answers to those hypotheticals are as clear as I think they are, then -- un 1. The Washington Post develops and patents a special "paper-springer" that enables it rce of overwhelming monopoly power. Congress decrees that The Post must license the paper- Washington Times. 2. A state is concerned that large shopping centers represent vital gathering places of ers to allow such leafletting and [**84] oratory regardless of the leafletters' or spea portant source of this vibrant debate, it limits the privilege to persons living within fo These scenarios are in fact less troublesome under the First Amendment than the must-ca ations that are required by government to include specific content that the government has - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Government line-drawing in First Amendment cases can be analyzed both in terms of t nt-based, is extremely weak; typically the law's challenger is saying in essence that the itive, and such claims rarely prevail. See, e.g., Austin v. Michigan Chamber of Commerce, s because the burden is too narrow; they say it fails because the beneficiaries are so nar rovision, then, the claim is stronger than the usual one of underinclusiveness. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**85] [*59] Standard of Review. The standard of review in First Amendment cases usually dep . Ct. 1722 (1987); Carey v. Brown, 447 U.S. 455, 461-62, 65 L. Ed. 2d 263, 100 S. Ct. 2286 s modified in Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 274 ocal broadcast stations. As the Supreme Court held in Riley v. Nat'l Fed. of the Blind of e Act [mandating certain disclosures by charitable solicitors] as a content-based regulati ld have chosen, regardless of origin, with programs selected by local broadcasters. The Riley Court did not, however, immediately proceed to apply strict scrutiny. Rather, with fully protected non-commercial speech. Id. at 796. More generally, it said that the lled statement thereon." Id. While here we have no issue of commercial speech, I read the Where a government regulation of conduct has an "incidental" burden on speech, the Cour L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (internal quotations omitted), or, as the Court expr number of cable channels, n3 replacement of the cablecaster's choice of programs with thos Further, one of the interests explicitly asserted by Congress was the benefit of "local ne de some minimum level of local programming content. Moreover, the Court applies strict scr e choice of programs. See Leathers v. Medlock, 113 L. Ed. 2d 494, 111 S. Ct. 1438, 1442 (1 geles v. Preferred Communications, Inc., 476 U.S. 488, 494, 90 L. Ed. 2d 480, 106 S. Ct. 2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 There is uncontroverted evidence that 2000 cable systems, serving one-third of all ammers seeking access, but who will lose out because of the preferential treatment of broa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On the other hand, in PruneYard Shopping Center v. Robins, 447 U.S. 74, 64 L. Ed. [*6 ndates need not pass such scrutiny, however. Free speech was on both sides of the balance . The owner's only First Amendment claim was its right to silence, and the Court found tha s expressed; and the rule made no inroad into editorial functions. Id. at 87-88. While the n a completely nondiscriminatory basis, and the weakness of the shopping center's competin The Supreme Court has also developed rules governing the First Amendment evaluation of xclusively on cablecasters, in an amount large [**90] enough to fund a subsidy for local ". Leathers, 111 S. Ct. at 1443; see also Minneapolis Star & Tribune Co. v. Minnesota Comm ories, the government must carry a "heavy burden" to sustain the distinction. Id. at 591, that singles out a subset of the press for a special tax, based on broad content categori Leathers itself, of course, upheld a tax statute that distinguished between cable opera 444-47. Although [**91] the Court observed broadly that "differential taxation of speak t 1447, the observation was in the context of a "broad-based, content-neutral sales tax" t den imposed on one set of speakers for the direct and explicit advantage of a limited clas proper test is strict scrutiny. Application of the test. To survive strict scrutiny, regulation of speech must serve a 109 S. Ct. 2829 (1989). First we must identify the government's interests, and then asses The Senate Report articulated the congressional interests as follows: (1) preserving the benefits of local television service, particularly over-the-air televis S. Rep. 102-92 at 58. These purposes are reflected in @@ 2(6)-(15) of the Act. Because thi order to assure diverse programming (see purposes (2) and (3) above); and (B) preservation 2(a)(11) of the Act, but also a wish to assure that local broadcasters could continue to s Open Access for Diverse Programming I assume that, at least at some level of abstraction, the interest [**93] in promotin jective", Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S. Ct. 2997, 3011, 111 L. Ed. spaper monopolies as extremely valuable. In Tornillo, however, the Court balked at the sta lled "editors or publishers to publish that which reason tells them should not be publishe f reply, id. at 257. Framing the case in modern doctrine, the Court may be said to have fo Here, too, the fit between the interest and the regulation is extremely weak. It is far ocal stations (as explained further below), the must-carry rules may have little effect, b ived from congressional dictate. Moreover, in considering "fit" one must look at the available alternatives. As the Cour on commercial speech, that is certainly a relevant consideration in determining whether t 993). Here, one obvious alternative is expansion of the access provisions of @ 612 of the ess to cable. Under @ 612, all programmers are eligible for leased access except the ones Even neutral remedies such as @ 612 are subject to challenge under Tornillo, as they re number of channels is available (ranging from the teens up to 40, 50 and more), so that th nels to the cablecaster. And there is no chilling effect on the cablecaster's programming The last is conspicuously missing from must-carry. The difference between the two is th itlement limited to a specific class of would-be speakers defined in terms of their locati carrying of specific program content. It is quite true, of course, that Congress found in 1992 that leased access under @ 612 ss. See H. Rep. 102-628 at 39-40. But the Report went on to "restate[]" the Committee's "b ening audience'." Id. at 40. More important, to the extent that Congress spotted defects i terms and conditions [**97] for access. See 1992 Cable Act, @ 9. Given @ 612, and Congr Preservation of Local Broadcasting The second interest that Congress has invoked is the preservation of local broadcasting of programming. There is a substantial governmental interest in ensuring its continuation. (a)(11). But in addition the interest derived from an indirect concern for the households if broadcast stations ever lost the advertising revenues attributable to the audiences th ncern that local broadcast stations were exceptionally vulnerable as potential victims of al content, then the preservation of over-the-air service. Local content. It seems extremely doubtful that forcing local affairs content on First "may not select which issues are worth discussing or debating in public facilities", Poli Even if by some stretch an interest in local content were "compelling", far less restri t v. Sullivan, 114 L. Ed. 2d 233, 111 S. Ct. 1759, 1774 (1991); cf. Regan v. Taxation [* n). Given those means, Congress cannot advance specific content by requiring a competing c e the relative voice of others is wholly foreign to the First Amendment". Buckley v. Valeo Preserving over-the-air TV service. I assume that as an abstract matter government has ficulty with the argument here is that there is no evidence that this access is in jeopard Ed. 2d 342, 109 S. Ct. 2533 (1989), simply "is not implicated on this record". Id. at 407. [*63] The most plausible evidence would be of local TV stations [**100] going under on asserts (without contradiction) that in the years since the D.C. Circuit Court of Appea adcast stations has increased by 22% (from 919 to 1118), the number of educational broadca Thus, not only are licenses not being turned in for want of profitable opportunities, but r-the-air TV. Whatever risk there may be in the abstract has completely failed to material Defendants and defendant-intervenors urge in response that this record means little; si e if must-carry were invalidated. Remove the shadow, they claim, and the operators will sh This argument is incurably flawed. If the constitutionally fatal aspect of the must-car ibly threatened. Accordingly, cablecasters would continue to operate under the same shadow threat. Supporters of must-carry thus turn to evidence of (1) instances where cablecasters have s noted a "marked shift in market share from broadcast television to cable television", 19 The congressional finding [**102] on actual effects is not disputed -- nor is it sup The record before Congress did, however, include evidence of some cable operators' drop total of 1,820 instances. n4 S. Rep. 102-92 at 43. Because only half of the more than 8000 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Cle evidence of how many stations may have been permanently dropped. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - These facts do not support an inference that over-the-air TV is at risk. First, they in he 3600 estimated instances of dropping when we do not know either the percentage of total system in 1990 carried just over eight local broadcast signals (7% more than were carried eing carried on cable systems (clearly this figure counts single stations multiple times, y or even any segment of that industry. In fact, plaintiff NCTA submits further, uncontrad iage were still being carried despite [**104] the absence of such a requirement. Klein - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 The record doesn't indicate the time frame within which these drops occurred. If it - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There is furthermore no information about the characteristics of the broadcasters actua carry, in its Staten Island, New York line-up, not one but two stations from Bridgeport, C t as do these Bridgeport stations, it would explain why the cable operators' right to drop ence that a threat to broadcast [**105] is imminent or serious. The structural argument is that the competition between cable and broadcast for adverti to @ 5 of the Act (relating to noncommercial TV), as the educational stations do not adve rtising seems easily attributable to the growth of cable, and perhaps some branching into still accounts for 92% of all television advertising revenues. See Hendricks Declaration a - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The National Association of Broadcasters points to evidence before Congress that on This is urged as confirmation that cable operators will pursue advertising revenue at the w programs had little or no reputation with audiences. In any event, the reasoning of the audiences by dropping advertisements, but no one expects them to do so; it is recognized of anticompetitive purpose. In fact, because cable operators' revenues are overwhelmingly - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**106] Further, cable television appears to continue to be dependent on local broadcasters as substantial portion of the benefits for which consumers pay cable systems is derived from ogramming accounts for approximately two-thirds of total cable viewing hours. S. Rep. 102- gment at 15. So long as local broadcast programs continue to be so popular, it appears tha Finally, even if local broadcasters were in perceptible peril, it would not follow that s [**107] could get broadcast TV into the homes of cable viewers (and thus preserve th not popular enough to enable them to pay the leasing fees set by the FCC, Congress could s In reaching these conclusions, I do not question Congress's power to engage in critical ations of California v. FCC, 492 U.S. 115, 129, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989); , 497 U.S. 547, 572, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990). My view does not turn on a 1) there is no finding of any present or imminent harm; (2) the evidence of some dropping ndermines any inference of a problem; (4) the findings as to structure and incentives, tak eptible, the record does not address the less intrusive alternatives. If findings as scant interest-group preferences. Cf. Cass R. Sunstein, "Naked Preferences and the Constitution Thus I conclude that -- unless the analysis of First Amendment issues in the special co Proposed Use of Broadcast Analysis Some defendants urge the court to use the [**109] sort of diluted First Amendment an , etc. at 46. Use of the broadcast standards would be completely inappropriate. The weakened status of broadcasters under the First Amendment arose from the Supreme Co n was not materially more intrusive on First Amendment values than any visible alternative med at preventing monopolization of radio licenses) against a variety of statutory challen xpression, it is subject to governmental regulation." Id. Thus, "The right to free speech Although the precise question was not before it, the Court appeared to assume that thes not openly based on the applicants' "political, economic or social views, or upon any othe t preceded government allocation and [*66] tracked the doctrine of prior appropriation, adcasters -- had no incentive to undermine the system under which they held their own quas later struck down for the print media in Tornillo. [**111] Compare Red Lion, 395 U.S. discretionary allocation of channels is necessary or even appropriate to preserve access t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 I use the qualifying adverb "openly" advisedly. Careful research suggests, as anyon he First Amendment 68-84 (1987). n8 See Thomas w. Hazlett, The Rationality of U.S. Regulation of the Broadcast Spectrum n9 Cf. 47 U.S.C. @ 309(i). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Defendants and defendant-intervenors, however, seeking to deny cable operators full Fir rators' need for rights-of-way, along or under city streets, in order to lay their cable; h of broadcasters. Neither alone nor in the aggregate do these justify subjecting cable to Rights-of-way. State, city and county governments have property interests in the street al to the laying of cable. These governments may seek to condition their consents on the o s. Elrod v. Burns, 427 U.S. 347, 357-60, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); Perry v. f calculating charges for use of right-of-way invalidated under negative commerce clause), speculate on how such cases would work out. Here the federal government is not attaching c Prior benefits. Defendants argue that cable's initial growth depended, perhaps essentia yright access); see DOJ Memorandum in Support of Motion to Dismiss at 27-28. This history ot condemn it to second-class First Amendment protection. Of course current federal govern itutional conditions doctrine is not before us. With the adoption of @ 6 of the 1992 Act, Cablecasters' power to censor. Finally, intervenor-defendant NAB argues that cable oper operators control a bottleneck. The mere fact that such control might force some programme he government any right to force access on behalf of a preferred class of speakers. This f In short, the special character of cable is limited to one feature: bottleneck control the 1984 Act, as amended by @@ 9 of the 1992 Act. I see no constitutional obstacle to the e), I do not see how Congress can constitutionally deny cable operators the ordinary right - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Because of my conclusion on the First Amendment challenge to the must-carry provis Fifth Amendment. I do not, however, regard the claim as frivolous. The creation of an enti L. Ed. 2d 868, 102 S. Ct. 3164 (1982), where the Court struck down a statute entitling cab ions of "real property". See NAB Opposition at 33. But the insertion of local stations' pr NAB also argues that cable operators have no "historically rooted expectation of compen nts as a condition of granting franchises and right-of-way access, and (2) prior similar f cussed above in connection with the parallel Red Lion theories: the local governments are - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**116] Conclusion The must-carry regulations in the 1992 Cable Act clearly burden the protected speech of of competing speakers, Congress directly, not incidentally, restricts the cable operators' a specific group of programmers, being served with neutrality by @ 612's provision for lea ate any real threat nor suggest any flaw in the less burdensome and obvious means for addr ent rights of cable operators and unaffiliated programmers. Stephen F. Williams United States Circuit Judge