Communications Law
December 18, 1982
Cable TV
By James C. Goodale
James C. Goodale, former vice chairman of the New York Times, is a member of
the law firm of Debevoise & Plimpton, chairman of the Communication Law Committee
of The Association of the Bar of the City of New York, and chairman of the Committee on
Public Access to Information and Proceedings of the New York State Bar Association.
Also, he is chairman of the board of editors of “Cable TV Law and Finance” published
by Leader Publications.
First Amendment Rights
Last March, the New York State Commission on Cable Television passed new
regulations requiring New York cable companies to make one or two of their channels
available for various forms of public use and to furnish the public with the necessary
equipment and facilities for access purposes.1 A number of other states have adopted
similar requirements.2 In July, the New York State Cable Television Association and two
cable operators sued the State Commission claiming, among other things, that the new
rules violate the First Amendment.
Potential Blockbuster
This case, Comax Telcom Corp. v. State of New York Comm’n on Cable
Television,3 has every prospect of being a real blockbuster and very well may go all the
1
Order No. 82-067, In the Matter of Channels and Facilities for Locally Organized
Educational and Public Service Programming, amending 9 NYCCRR, Subtitle R,
Sections 595, 596 (March 24, 1982).
2
E.g., Conn. Gen’l Stat. Section 16-333(c) (Supp. 1981); Minn. Stat. Ann. Section
238.05(b) (West Supp. 1981); Cal. Gov’t Code Section 53066.1 (West Supp. 1981).
For a compilation of state cable regulations, see Harrison, Access and Pay Cable
Rates: Off Limits to Regulators After Midwest Video II? 16 Column. J.L. & Soc.
Prob. 591, 619-30 (1981). There is also existing and proposed cable access
regulation by municipalities across the country.
3
No. 82-CV-746 (N.D.N.Y., filed July 19, 1982).
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way to the Supreme Court. The Court has never defined the First Amendment rights of
cablecasters, and perhaps this case will provide the opportunity for it to do so.
Access is the hottest word in communications law today the news media wants
access to courtrooms, politicians want access to the news media for equal time, and cable
commissions across the country are now requiring cable companies to grant the public
access to their channels. A quick black-letter summary of the law of access is:
 The news media has a First Amendment right of access to courtrooms under
Richmond Newspapers, Inc. v. Virginia4 and Globe Newspaper Co. v. Superior Court for
the County of Norfolk,5 but politicians do not have a right of access to newspaper
columns, Miami Herald Publishing Co. v. Tornillo.6
 There is no right of access for paid advertising time on broadcast stations, CBS,
Inc. v. Democratic Nat’l Comm.,7 but candidates for public office have an access right to
equal time on broadcast stations under Section 315 of the Communications Act of 1934
(the “Communications Act”).8
 Candidates for public office have a right of access to cable stations when those
stations originate the program but have no right of access to programs carried by cable
stations.9
 A person attacked in an editorial broadcast has a right of reply under Red Lion
Broadcasting Co. v. FCC,10 but Red Lion applies to cable stations only when such
stations originate programming.
 A broadcast station must present both sides of all issues of public importance, or
else persons advocating the side not presented have a right of access according to the
4
448 U.S. 555 (1980).
5
102 S. Ct. 2613 (1982).
6
418 U.S. 241 (1974).
7
412 U.S. 94 (1973).
8
47 USC Section 315 (1976); 47 CFR Sections 73.1910-1940 (1981).
9
47 CFR Sections 76.205-209 (1981).
10
395 U.S. 367 (1969).
2
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fairness doctrine.11 But here again, the fairness doctrine applies only to origination
cablecasting.
 There is no right of access to subscription television (“pay T.V.”) service for
those who cannot afford to pay for it, under National Ass’n of Theatre Owners v. FCC;12
and neither is there a right of public access to compel the broadcast of a program by a
public television licensee, Muir v. Alabama Educ. Television Comm’n.13
Change Possible
While this is the law today, a different picture may emerge tomorrow. None of
this law is fully settled except perhaps for the holding in Tornillo. The Supreme Court
held in Tornillo that forcing a newspaper to run a letter to the editor deprived the paper of
its First Amendment rights. Chief Justice Burger stated there for the Court: “The choice
of material to go into a newspaper, and the decisions made as to limitations on the size
and content of the paper, and treatment of public issues and public officials whether fair
or unfair constitute the exercise of editorial control and judgment” which could not be
regulated by the government consistent with First Amendment guarantees of a free
press.14 Or, as the Chief Justice had observed a year earlier in CBS, Inc. v. Democratic
Nat’l Comm., “For better or worse, editing is what editors are for. . .”15
But the Supreme Court had held in Red Lion that a radio station did have to run
such a “letter,” that is, give time for an identified person or group attacked or opposed in
a program run by the station or in a station editorial. The Court reasoned that since there
was not enough radio “spectrum” for everyone to talk at once, the FCC could, taking into
consideration the First Amendment rights of listeners and consistent with the First
Amendment rights of broadcasters, regulate broadcast speech in certain ways through the
Communications Act.
When Tornillo, the newspaper analogue to Red Lion, came to the Supreme Court,
Tornillo’s lawyers were quick to point out that in most cities there were fewer
11
See supra, n. 8.
12
420 F. 2d 194, 204-07 (D.C. Cir. 1969), cert. denied, 397 U.S. 922 (1970).
13
688 F. 2d 1033 (5th Cir. 1982) (en banc).
14
418 U.S. at 258.
15
412 U.S. at 124.
3
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newspapers than radio stations and so if speech on radio could be circumscribed in the
public interest, so too could newspapers be told what to print. The Supreme Court
refused to buy this argument and held, in essence, that the scarcity doctrine does not
apply to newspapers.
In a cable station more like a newspaper or a broadcast station, or is it a common
carrier like a telephone company which must keep its facilities open to everybody to
“transmit intelligence of their own design and choosing”?16
Question Before Court
This question was posed in a case usually referred to as Midwest Video II17 which
reached the Supreme Court. That case involved FCC rules promulgated in 1976
requiring every cable system having more than 3,500 subscribers to develop, among other
things, a twenty-channel capacity and make four of those channels available for public,
educational, governmental and leased access. The FCC rules were, in short, similar to
those recently adopted by the New York State Cable Commission.
In Midwest Video II the cable stations attacked these rules on the ground that they
violated free speech rights under the First Amendment and due process rights under the
Fifth Amendment, and were promulgated without congressional authority. The Supreme
Court did not reach the constitutional issues. It held that Congress had not given the FCC
authority to make and enforce the access rules rules that impermissibly imposed
common carrier status on cable stations. Since the FCC had power only to make rules
“reasonably ancillary” to the authority granted to the FCC by Congress to regulate use of
the radio waves, the access rules were not authorized by Congress. The Court did not,
however, that the First Amendment issue put before it was “not frivolous.”18
8th Circuit Ruling
The Court of Appeals for the Eighth Circuit, in its prior consideration of Midwest
Video II, had found that even if Congress had given the FCC authority generally to
regulate cable, the imposition of these access rules would violate the First Amendment
because the FCC had no reasonable basis for so regulating the speech of cable operators.
16
Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 533 F. 2d 601, 609-610 (D.C. Cir.
1976) (“NARUC II”)
17
FCC v. Midwest Video Corp., 440 U.S. 689 (1979).
18
Id., at 709, n. 19.
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The court noted that the FCC had no justification for imposing access requirements on
cable stations that went beyond anything imposed on broadcasters (the fairness doctrine
and related rules) and concluded that, in any event, a cable system was more like a
newspaper than a broadcast station as far as access is concerned. The Circuit Court
stated: “[W]e have seen and heard nothing in this case to indicate a constitutional
distinction between cable systems and newspapers in the context of the government’s
power to compel public access.”19
The Supreme Court in Red Lion noted that the major premise for regulation by the
FCC of broadcast speech was the physical (technological) scarcity of the electromagnetic
(radio and television) spectrum.20 A viewer at least in the days before cable could
receive only a limited number of channels. And so if a station presented a controversial
news program on, for example, whether asbestos causes cancer, the station could be
required by law to give the asbestos industry’s side of the story.
Cable television, however, gives the lie to the scarcity theory. With present
technology a cable can carry more than 100 channels. With introduction of a fiber optic
“cable” which carries a television signal by light, the capacity for signal carriage is
almost infinite. In short, the theory of scarcity as a premise for regulating speech in
television and certainly cable television - is no longer tenable because television is no
longer scarce.”21
HBO Case
This fact was recognized by the D.C. Circuit Court of Appeals in Home Box
Office, Inc. v. FCC.”22 In that case, HBO challenged the FCC rule that cable systems
could not run movies and sports programs on a pay basis within a certain number of years
of their broadcast on network television. Anyone who watches HBO today knows that
that HBO won. In upsetting these FCC “anti-siphoning” rules, the court, quoting Red
19
Midwest Video Corp. v. FCC, 571 F. 2d 1025, 1056 (8th Cir. 1978), aff’d, 440 U.S.
689 (1979).
20
395 U.S. at 388.
21
See CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. at 131, and 158 n.8 (Douglas,
J., concurring in judgment).
22
567 F. 2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977).
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Lion, noted that “differences in the characteristics of new media justify differences in the
First Amendment standards applied to them.”23
The Court or Appeals went on to describe the important differences between cable
and broadcast television with respect to physical interference in and scarcity of the
spectrum, and concluded: “Scarcity which is the result solely of economic conditions is
apparently insufficient to justify even limited government intrusion into the First
Amendment rights of the conventional press, [citing Tornillo], and there is nothing in the
record before us to suggest a constitutional distinction between cable television and
newspapers on this point.”24 This observation was quoted approvingly by the Eighth
Circuit Court of Appeals in Midwest Video II.”25
As a consequence of these cases and for other reasons the FCC is presently
taking a back seat with respect to the regulation of cable television, leaving that largely
up to the states and municipalities.26 When a state or municipality now seeks to regulate
access and cannot rely on scarcity as a rationale, it must fall back on other rationales.
Practice to Now York
A principal one would be that since cable systems need a municipal franchise to
lay their cables, it is appropriate for municipalities to impose certain conditions on cable
franchises, for example access channel requirements. New York, as many states, leaves
the granting of franchises for cable systems up to municipalities, subject to general
oversight by a state commission. Cable companies need the franchise from the cities
because the companies have to tear up the streets to lay the cable.
But does the mere fact that a license is needed to tear up streets justify regulation
of a cable operator’s programming content that is, regulation of speech? Newspaper
trucks, after all, need a license to use city streets and no one has ever urged that this
justifies control of a newspaper’s content. It is well established that the receipt of public
benefits cannot be conditioned on the waiver of First Amendment rights.
23
Id., at 43, quoting Red Lion, 395 U.S. at 386.
24
Id., at 43-46.
25
571 F. 2d at 1055.
26
A significant exception is the regulation of pay television rates, which has been
preempted by the FCC. See Brookhaven Cable Television, Inc. v. Kelly, 573 F. 2d
765 (2d Cir. 1978), cert. denied, 441 U.S. 904 (1979).
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It would appear that such licensing authority would only justify rules akin to time,
place and manner restrictions appropriate rules as to where the cable is to be laid, when
the streets are to be torn up and the like but not content regulation, and specifically not
forced public access. A consent judgment recently entered between the City of Boulder,
Colorado and Community Communications Co. to end a long-running combat over cable
franchise districting in that city recognized just such limitations in the city’s regulatory
power, in express consideration of the cable operator’s First Amendment rights.27
A final rationale might be the assertion that cable franchises are monopolies or
public utilities and accordingly can be treated as common carriers required to carry on
their cable whatever people want to say, instead of what the cable operators want to say.
Any assertion of cable operators’ monopoly power is, however, of extremely doubtful
validity. Cable operators are already in head to head competition with the traditional
news, information and entertainment media.
Something New Daily
What’s more, every day seems to bring a new entrant into the video marketplace
direct broadcast satellite (DBS). multiple distribution services (MDS), subscription
television (STV), pay-per-view television (PPV), video cassettes, home computers and
more. There has been so much competition in that marketplace this year that most cable
networks are losing money, and at least one notable entry in the field, CBS Cable, has
gone under. In any event, a public utility status for cable T.V. is questionable at best,
because the service provided cannot fairly be called essential to the public. It would
seem that the goal of diversity of information offerings on cable, as in print, can best be
promoted through the free play of market forces.28
Further, to justify the imposition of public access channels by reference to
common carrier obligations is to bootstrap in the grossest way. While a cable system
27
Community Communications Co. v. City of Boulder, Colorado, No. 80-M-62,
Stipulation and Judgment, at 5-6 (D. colo. Oct. 29, 1982). For the prior history of
that case, see id., 660 F 2d 1370 (10th Cir. 1981), cert. dismissed, 102 S. Ct. 2287
(1982), wherein the Court of Appeals had concluded that cable’s disruption of the
public ways, combined with supposed similarities between cable and broadcasting,
might justify the territorial restrictions at issue, and id., 102 S. Ct. 835 (1982), the
Supreme Court’s ruling (on certiorari from a prior decision of the Court of Appeals)
on the distinct antitrust issue involved in that case.
28
Cf. FCC v. WNCN, 101 S. Ct. 1266 (1981) (upholding FCC authority to rely on
market forces to assure diversity of voices on the radio waves).
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may perhaps be treated as a common carrier insofar as it offers to the public the use of
two-way services and the like,29 cable operators clearly are not common carriers when
providing the traditional cablecasting services.30 There is no sound basis for imposing
such a status on them artificially by mandating public access. Nor can existing
government regulations of cable T.V. transform the operation of a cable station into
“state action” to justify the imposition of public access, an even more onerous
regulation.31
Mandated access such as that challenged in Comax thus may raise due process
taking-of-property problems as well as First Amendment concerns. In Midwest Video II
the circuit court, in dictum, endorsed the cable company’s argument that the FCC public
access rules, by requiring cable stations to spend money to build and then dedicate
facilities to the federal government, amounted to a taking of property without
compensation in violation of the Fifth Amendment due process guarantees.32 In Comax,
the plaintiffs argue that the required provision of channel time and facilities to state and
local governments and the public without charge violates the equivalent Fourteenth
Amendment proscription.
Comax, then, could become the battleground where the new technology will join
combat with the state regulation. There has never really been a case like it before,
involving a direct challenge to a state’s power to regulate speech transmitted on this new
technology by mandated public access.33 New York is the communications capital of the
29
NARUC II, 533 F. 2d at 608-10.
30
See United States v. Southwestern Cable Co., 392 U.S. 157, 169 n. 29 (1968); see
Midwest Video II, 440 U.S. at 700-01; Frontier Broadcasting Co. v. Collier, 24 FCC
251 (1958).
31
In refusing to mandate advertising access on private broadcasters, a majority of the
Supreme Court in CBS, Inc. v. Democratic Nat’l Comm. declined the invitation to
label as “state action” the operation of that medium. Cf. Mulr v. Alabama Educ.
Television Comm’n., 688 F. 2d 1033 (5th Cir. 1982) (en banc) (even public
television licenses are not “public forums” to which the public has a right of access
to compel the broadcast of a program).
32
71 F. 2d at 1057-59.
33
A similar action recently was filed in California challenging local cable regulations,
Century Cable of Northern California v. City of San Buenaventura, No. 82-5274
(D.C. Ca., filed Oct. 12, 1982), and more may well follow. As well, an action was
initiated last month on behalf of residents of Denver, against the city and Mile Hi
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world. As the country’s economy turns increasingly from smokestack to high
technology, one would hope that New York would be a leader in the direction of
providing freedom for and not strictures on the new media.
In this context and for the reasons discussed above, the wisdom of forcing cable
systems to give up their channels to others is highly doubtful.
Cablevision, the city’s newly designated exclusive cable franchisee, alleging First
Amendment violations in the public access and other content regulations contained
in the franchise agreement, and in the exclusive franchise agreement itself.
Mountain States Legal Foundation v. City and County of Denver, No. 82-1738 (D.
Colo., filed Nov. 1, 1982). Cf. Home Box Office, Inc. v Wilkinson, 531 F. Supp.
986 (D. Utah 1982), in which a state cable pornography statute was struck down as
unconstitutionally overbroad.
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