Community Communications Company, Inc. v. City of Boulder, Colorado

Regan’s state- Browning had relied if position to use

ments, poor is in a Browning estoppel Principles

the doctrine. deliberate person’s justify

not be used to escape in order one statute

violation of another statute.

liability under did not the trial court

We conclude on or relied particulars in either the

err

otherwise.

We affirm. F.Supp. also, D.C.,

See - -. COMMUNITY COMMUNICATIONS

COMPANY, INC.,

Plaintiff-Appellee, BOULDER, al.,

CITY OF COLORADO et

Defendants-Appellants.

No. 80-1348.

United States Court of Appeals, Circuit.

Tenth

May 1980. Rehearing Denied Oct. Jeffrey Davis, H. Howard of Graham &

Stubbs, Denver, (Dale Colo. R. Harris and Davis, Stubbs, Bruce T. Reese of Graham & Denver, Colo., brief; with him on the Jo- seph Boles, Jr., N. de Raismes and Alan E. Boulder, Colo., counsel), for defendant- appellant. two Farrow, principal were actions taken of There R. Farrow Schildhause

Harold the City by the which were considered Oakland, (Thomas Wilson, A. Cal. Seaton & differentiating be- really trial court without Wilson, Oakland, Farrow, & Schildhause 90-day moratori- One was the tween them. Brett, Youle, Cal., E. Stephen M. Robert the plaintiff, expansion um the Dawson, Nagle, Craig Maginness R. for cable second was the model ordinance Colo., Howard, Denver, & the solicitation television in Boulder with brief), plaintiff-appellee. on the him the market new businesses enter McMahon, Gen., Atty. Asst. Thomas P. The mora- proposed the ordinance. Colorado, Section, Den- Antitrust State City by gener- imposed by the a torium was MacFarlane, Gen., ver, Atty. (J. D. Colo. of an ordinance and the enactment al Gen., Hennessey, Deputy Atty. F. Richard to the non- specifically ordinance directed Gen., B. Lawrence Mary Mullarkey, J. Sol. The re- plaintiff. exclusive franchise of Theis, Gen., Atty. First Antitrust Asst. Sec- general straining оrder issued was in terms Denver, brief), tion, Colo., with on the him directed to unilateral action and was Atty. for amicus Colorado Gen. authority the City the to restrict revoke Roberts, Colo., Ridge, Jane E. Wheat in plaintiff to “conduct” business of amicus Colorado filed a brief on behalf Boulder. Municipal League. the ele- The trial court combined two summary what following ments in the SEYMOUR, SETH, Judge, Before Chief the court considered Boulder have done: MARKEY, Judge *. Judge, and Circuit stated, simply Boulder has at- “Most lawful, tempted to restrict the business SETH, Judge. Chief new by preventing obtaining CCC it from who a non-exclusive plaintiff, The holds poten- customers for three months while City of Boulder en- franchise from competitors proposals tial submit in the cable television business gage serving those same customers. The moti- brought against City action City, this competition vation foster entity. TV business and another run, and immedi- long but the direct eleven causes of action asserted. Some an ate is a of trade and effect restraint City complaint is directed to a ordi- The geographical artificial and unreasonable on expan- which a placed nance moratorium market allocation.” City plaintiff sion day period expired The оne three-month City soliciting other cable action entry restraining order following the engage TV business to business under trial court was so we assume that the must ordinance. One proposed model sub- ordinance as a considering the model asserted antitrust viola- causes action continuing stantial and factor. tion, and this was concern of trial Of model ordinance and the solicita- judge. tion, was of the method or the court critical temporary sought re- matter handled. The ob- way was prevent straining against order was jection appears way thus to be to expansion. trial its restrictions on what done. The follow- done and not was basis of the granted court the order on the ing quotation from the trial court’s order The defendant allegations. antitrust ruling aspect demonstrates the order. appeal taken this from disposed of how the trial court also shows Brown, 341, 63 S.Ct. the Parker v. court the central issue Before this court of 87 L.Ed. contentions. exempt whether the anti- this said: trust laws.

* Appeals, sitting by designation. Markey, Judge, T. Honorable Howard Chief of Customs and Patent United States Court proper have nance as a function of the town.

“Assuming that Boulder does regulate cable televi- challenge categories claimed basically was to which sion within the in the manner making under established for rate the Con- required impose would be all of the up- Court stitution. The Colorado terms and conditions in the draft ordi- making a valid exercise of held the rate the plain- nance which submitted to regulatory authority. The court treated companies, the ap- tiff and other cable any regulatory the issues as it would au- proach appropriate taken not exer- of Colorado. thority exercised the State regula- cise and articulation of a of compared “legiti- to scrutiny Thus strict utility tion. It not characteristic interest,” applied. mate state authority regulation regulating for the to court also refers to the wide latitude to be regulated to negotiate with those be and governments afforded local in the exercise policy by the final exer- then formulate police powers. of the The treatment power through an offer cising legislative signifi- rate issue in the Manor Vail case is acceptance might and mechanism. It cant to our problems here. The state court well if be a different case Boulder had rule, expressly did not discuss home but articulating qualify- enacted an ordinance of Vail assumed that the Town had full ing companies criteria for cable to do The issue authority regulate rates. City, reg- business in the with such other regulation treated was how the was carried City government might ulations as the out. believe to be necessary proper in the It generalize is a mistake to about “home police power, exercise of and then to con- opinions rule” as it be treated front the contention that such an ordi- jurisdictions. different We are concerned nance anticompetitive has an effect. only with Colorado home rule under article Here, That is not this case. upon the XX, section of the Colorado Constitution. record, present Parker wholly v. Brown is pertinent part reads: inapplicable subject and Boulder is to an- liability City titrust Lafayette “Section Home rule for cities and Light Louisiana Power & people towns. The of each or town [435 364], supra 55 L.Ed.2d state, of this having population of two the actions which it has taken.” thousand inhabitants as determined preceding the last census taken under the We agree cannot the method fol- States, authority of the United lowed the City somehоw eliminated the town, or Colorado said or Parker v. Brown considerations. We also with, hereby they always vested shall agree cannot that the model ordinance with have, make, amend, power to add to or negotiations solicitation and was some- replace ‍​‌‌​​‌​​‌‌​‌‌‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​​​‌​‌‌‌​​​​​‌‌‌‍town, charter of said or improper how beyond or authority which shall be organic law and extend the City. This would not seem to be an to all its municipal local and matters. issue in the very case. The same method apparently was followed Vail “Such charter and the ordinances made considered, Manor Vail case hereinafter pursuant thereto in such matters shall Colorado Court nothing found supersede within the territorial limits and to comment on. Manor Vail Condomini- jurisdiction other of said or any town Vail, um Ass’n v. Town of 604 P.2d 1168 law of the state in conflict therewith. (Colo.), the Supreme Court of con- Colorado sidered a rather challenge broad to an ordi- grant

nance of the Town “It is the intention of this regulating of Vail article people television. A and confirm to the franchise had there been of all munici- granted subsidiary palities to a coming provisions within its this action. self-government The ordinance full also fixed rates in both local under Colorado “home authority. municipal rule” matters and the enumer- company there sought support the ordi- powers ation herein of certain shall

7Q7 Four-County Met. 492 P.2d C.I. such cities and deny construed Com’rs., thereof, 149 Colo. towns, County Dist. v. Board people to the Four-County 67. In the Met- 369 P.2d proper to the right or power essential the home rule ro court case the stated right. full of such exercise cities to local matters had in Colorado as Colorado, “The of the state so statutes authority. the complete apply continue to applicable, far as shall towns, insofar except to such cities and plaintiff cable TV The franchise of the charters of such cities superseded limited to service company necessarily passed pursu- and towns or ordinance Boulder. The services within the ant such charters.” provided residents limited through the use and ways. streets hearing during court said The trial subject is a one. The matter local Boulder: opinion court Vail Colorado in the Manor get you “THE If down COURT: regulation assumed that the rate of cable govern- power, source of the ultimate TV in was a matter of local concern the exercising is au- concepts, mental Boulder People home rule also v. context. See the thority people of the of state of Colo- Tel. 125 Tel. & Colo. Mountain States rado matters local concern within in of 167, Supreme The Court in 243 P.2d 397. Boulder, people of the state because the 556, Pix, 90 Taylor, TV Inc. v. 396 U.S. S.Ct. exercising their ultimate sov- of Colorado 749, 746, a three-judge 24 L.Ed.2d affirmed 20 the ereign power put Article Consti- (304 459, F.Supp. D.Nev.) court decision operat- They tution this state. are not of the of the communi- holding regulation authority from ing delegated under some system was a and ty antenna local business general assem- the in the representatives did not constitute an interference with in- operating are the basis of bly. They on The terstate commerce. facts before us of sovereign authority the ultimate the comparable represent a situation. people of the state. That’s what Colora- not It would seem useful under these do’s 20 is Article all about.” explore circumstances to the differences be- authority City The of the here source of pow- by police tween control or contract directly is thus from the state con- derived еr. is busi- City The television delegated is not stitution and a residual or way, by contract any ness in and whether City the references power.' See police exercise of power the action an 582, County Henry, Denver v. of Colo. no governmental authority. There is ele- 895, P.2d the situations where an ordi- City. of the proprietary ment of interest supersede nance even statute as state purely to matters of local concern. See also the Colora We must hold that under 335, Rhodus, Co. Colo. Manor Service Oil under the Vail do Constitution and 807, City County of P.2d and Davis the business regulation decision that of Denver, 30, 342 P.2d 674. In power Colo. of cable TV well within the event, Further, with City we here concerned Boulder. any regulation regulation under the circumstances here action in absence only was control or active the State of Colorado. Under concerned whatever supervision state local these circumstances there no interaction exercised represented only government, and it regulation. local We have subject expression policy as mat authority by the action or exercise ter. City. has Supreme

The Colorado Court con- The record contаins a of tran- number scope version scripts meetings. sidered the of the Colorado The Council dis- including purpose home in several other cases were rule cussions extensive Wars, Etc. ordinance Veterans of For. v. Steamboat the moratorium and model (Colo.), Springs, Security P.2d Life was made clear. There also statements Temple, purpose accompanying ordinances. and Accident Co. v. 177 Colo. policy fostering yette com- been met indicated the home City adopted for cable TV to receive a franchise rule discussion herein. petition again a non-exclusive fran- City, within the holding Court in California permit moratorium was to these chise. The v. Midcal Alu- Liquor Retail Dealers Ass’n. where under circumstances applications minum, Inc., 445 U.S. 100 S.Ct. number of there remained a substantial (1980), supports applica- 63 L.Ed.2d 233 cable of yet customers not connected to the these cir- exemption tion of the Parker plaintiff. appears very This to be a Retail cumstances. The Court in California public rec- policy clear statement of governmental out two an- set standards Whoever obtained the franchise or the ord. “First, re- immunity: challenged titrust required additional franchise would be clearly straint must be ‘one articulated operate the model ordinance. The policy’; affirmatively expressed State formulated after hear- ordinance had been second, policy ‘actively super- must be ings, negotiations. discussions (445 vised’ the State itself.” U.S. at give consultant to advice on the City had a 943, citing City of Lafa- matter. test for the Par- yette, supra.) This latest agree We cannot with the trial court met exemption ker has been exempt is not from antitrust affirmatively Boulder. The was ex- Brown, liability under Parker v. pressed through language of the ordi- 87 L.Ed. 315. Parker part of the California nances. second brought enjoin suit enforcement of a supervi- active Retail test was met agricultural proration pro California state by impo- sion and enforcement of the gram competition among which restricted sition of the moratorium on con- growers prices. and maintained The Su civil then struction and issuance of preme Court found that the restraints of criminal to cable workers when citations plan imposed govern were as an act of ignored. the moratorium was ment, and that such “state action” is not City We of Lafayette concludе that is not prohibited by the Act. Sherman applicable gov- to a situation wherein the apparently The trial court here concluded entity asserting governmen- a ernmental Lafayette Light that v. Louisiana Power & interest, proprietary tal rather than 98 55 U.S. S.Ct. L.Ed.2d that instead the Parker-Midcal doctrine is However, was controlling. Lafa- applicable exempt ‍​‌‌​​‌​​‌‌​‌‌‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​​​‌​‌‌‌​​​​​‌‌‌‍City from anti- yette was authorized to own and liability. trust operate utility. its electric Louisiana Pow- We must thus conclude the trial that Light er & was sued for anti- court was in a error as matter of law as to violations, trust utility and the counter- temporary the basis for issuance of the re- alleged claimed under the Act for straining expressed order. There is no oth- anticompetitive activities. A divided Su- er restraining basis for the order than the preme Court ruled that was not antitrust factor. liability. immune from antitrust The deci- In apply these circumstances we do not sion, considering opinions, the several the usual standards outlined in Penn v. San grounded on the fact that the action was Inc., (10th Hospital, Juan F.2d 1181 not directed or authorized the state Cir.); Exchange & Commission v. Securities “pursuant to state policy displace compe- Pearson, (10th Cir.), 426 F.2d 1339 and the rеgulation monopoly public tition with typical cases. service.” 435 at at 1137. Lafayette distinguished restraining must be A order must temporary because, from the case although before us as dis- be set aside there be no abuse above, cussed no proprietary equities interest of the discretion as to the balance event, City is here if the irreparable injury involved. as to the matter of policy requirement statement of in Lafa- trial court action to a substan- has based its string throughout censed to cable a upon tial determination law extent (CATV) and to com- supply cable television appellate which the court considers is, news, information, munications, that District of Co- error. Of doctrine the entertainment, to Boulder’s citizens. lumbia Circuit Northeast Construction city. at contract is cancellable will (D.C.Cir.) Romney, Co. said v. F.2d all times com- indisputably CCC referring after to the broad discretion of plied with that contract. irreparable equities, trial court as to the and related factors: injury, unsuccessfully In 1973 and sought operator bids for to serve a injunction must be preliminary “But a CCC, entire city, buy out and to submit reversed even where no abuse discre- regulation city. to extensive matters, tion еxists as to such when the proceeded upon premise trial court has July “Boulder Communica- appellate as to the rule of law which the Company” (BCC), say- tions city, wrote the erroneous. We conclude ing court deems formed by had been six citizens of Boulder, underlying the District Court’s con- tendering a under which resolution law, likely permit sys- clusion of to it would receive to build its tem, merits, it would stating permitted is an build succeed on erroneous .if system, its “whatever action the takes legal premise requires reversal.” regard [CCC],” plan stating v. Dist. also United States School See citizens, to be stockholders of BCC Boulder Cir.); (6th Hamil- Ferndale, F.2d arid with “the promising supply Boulder Cir.); Butz, (9th F.2d 709 Grubbs ton v. best cable has to offer.” (D.C.Cir.); Society Butz, 514 F.2d 1323 The city, though fully at all times free to Schlesinger, 512 Rights, Inc. v. for Animal so, grant do declined and still declines to Greene, Pullum (D.C.Cir.); and F.2d 915 BCC, or any company, other a non-exclusive (5th Cir.). 396 F.2d 251 to compete license in the cable CCC judgment must Thus we reverse market Though in Boulder. advised the trial court remand order of consultant that modern made technology order entered We also terminate our case. feasible, open and free cable competition which was May action on city position the in its рersisted only that plaintiff. directed to the one could Boulder. operator cable serve CCC’s for expenditures announcements MARKEY, dissenting. Judge, Chief expansion were warmly applaud- in Boulder by city’s May ed the officials in of 1979. greatest respect, With the dissent. However, city in the summer will Though these remarks not affect re-launched its 1973-74 effort to find Civilization, they course of Western operator install a which would serve cable judg- a compelled conviction city and which entire would submit eminently ment below was sound un- broad by city control of its business offi- Because, set equivocally correct. forth cials. Order, Opinion its Memorandum competition trial court no abuse of discre- The open committed decided tion, fully op- its order is would TV judgment produce and because “best” cable erator, and not Boulder’s cable con- at that it supportable on least First Amendment “best,” sumers which was would decide grounds, I would affirm. one,

there and that the one could be city. rigid must adhere to controls The Facts Attorney that it lacked city’s advised regu- authority impose those controls 20-year, a In Boulder entered non- lations, using do so a bid-contract but could predeces- with a exclusivе license-contract would process company in which the chosen sor plaintiff Community Communications agree to those controls. (CCC), which CCC was li- Company bring question that we are best suited to city drafted a “model ordinance” services to Boulder.” en- (contract) twenty-two pages, to be bidder, giv- one tered successful December, 1979, fearing possible frus- select- ing city pervasive controls of the city enacted ordi- plans, tration of business, including its operator’s ed cable 90-day moratorium imposing nance a Among the salient features programming. ordinance expansion, CCC’s model contract are: of the license con- reenacting CCC’s repealing tract, contin- city’s right purchase making the cable CCC’s a section existing area an “ac- excluding good-will operation ued in its company, price at a investment; ceptance” of the moratorium and of depreciated and limited to geographic restriction. right prior approval every city’s contract; regulation; company rate au building, city When CCC continued time; change rates at thorities arrested its construction crews (two a franchise fee and one-half 5% tore dоwn its cables.1 fee); present requirement times the a for injunction against city sought channels; complaint five leased access a denied expansion. injunction An city manager, procedure monitored District Judge Neighbors, of the Boulder liquidated damage provision; with a Community Com- Court. of Boulder company facili- requirement upgrade Inc., Company, No. 80-CV- munications continually ties to state-of-the-art condi- court had Noting the federal tions; requirement renegotia- and a Neighbors jurisdiction, Judge add- assumed tion, intervals, specified of rate struc- ed would that he was not convinced tures, service, free or discounted services merits, equities did prevail on the offered, provided, programming and hu- First significant not favor the and that rights. man present. Amendment issues were November, 1979, wrote the again BCC case, present In the the district court city, saying qualified it was best to serve issued this Order: Boulder, claiming support citizen from ORDERED, plain- long as the that so groups, stating preference for an immedi- tiff, Compa- Community Communications permit ate under the “new or- Inc., terms and ny, operates within the “request accepted dinance.” BCC conditions of No. enacted Ordinance situation, requesting 6, 1964, bid” but warned that original October contract] [the officers, legal “problems bids would not solve of an of Boulder and all of servants, proce- employees, anti-trust nature.” said the bid and attor- agents, BCC any unilat- neys enjoined taking dure require that CCC’s license be restrict, limit, action or revoke revoked, eral agree expand or that not to CCC to conduct its (saying precluded economics more than one cable television business in the of operator). Again denying the necessi- Boulder. bids, ty repeated its earlier BCC offer to controls, submit to city’s suggested and The First Amendment license, offering that the city revoke CCC’s purchase system. in that event on judgment CCC’s below affirmed will be affirmance, appeal with that is no if whether any BCC closed assurance “there basis for sincerity necessary question expense taxpayers. 1. It is not of to all local and federal tant officials, city’s they acting may who in the belief that That harm be caused the sincere good price paid, were better able Boulder’s cable consum- than would do is but a to be lest no operator case, good particular ers to determine which cable was the In be ever done. however, “best” for Boulder’s citizens. The refusal to the circumstances tend to confirm the permit Act, among animating individual consumers to decide the Sherman its nation- wisdom competitors open competition competition, open, has here al insistence on free consumers, spawned delay prohibition unnecessary against service to new inter- arrests, tear-down, suits, equipment two law an ference therewith. appeal, continuing litigation, and the concomi-

7H here, below, rights in the rec First Amendment former appears not on relied injunction disposed requested of Brady District v. Carpenters Council ord. jurisdictional and the primarily grounds on see 1975); Corp., 1, (10th 4 Cir. 513 F.2d injunction requested granted latter 88, Corp., 80, 63 Chenery v. SEC 318 U.S. primarily on Act considerations. v. Casto 454, 459, (1943); 626 87 L.Ed. S.Ct. Co., 597 F.2d 1323, Arkansas-Louisiana Gas interstate engaged That com CATV Dayton- Lindsey v. 1979); v. (10th is clear. United Southwest 1325 Cir. States merce 168-169, 1118, 1124 (10th Corp., Hudson ern Cable F.2d Cir. 329 88 592 1994, 2000-01, (1968). L.Ed.2d 1001 Building v. Northeast S.Ct. Fleming Co. 1979); control Boulder’s reach for massive of That Building ern and Construction Oklahoma borders is an the CATV market within its Council, (10th Trades 532 F.2d Cir. is to me interference with that commerce 1976). But, recognized equally clear. view, just affirm my such basis for court, trial federal another “wider concern” thrust, ance, in its force and lies compelling is that for the First Amendment.3 rights speech violation of the of model Looking proposed at the contract CCC, press guaranteed and to of First ordinance as the source Amend citizens of Colorado of the United concerns, noting had ment Boulder, the First who reside in States of yet engineered acceptance an Amendment.2 contract, trial its effect court deemed trial Though both the state and federal merely prospective and contented himself judges concern violation of expressed view, over warning.4 injurious my with a concerns, Obviously grounds there Affirmance on First Amendment are wider includ- commerce, constitutionality-risking interpreta- ing giving rise to avoids the interstate some uncertainty power tion of the Colorado constitution’s “home rule” provisions about necessary regard, government found in this both in terms of support immunity commerce, absolute cities Colorado an obstruction interstate Further, respect rights the Sherman Act. affirmance on to the First Amendment grounds First Amendment avoids the concern of communicators. expressed by Mr. Justice Blackmun in Lafayette municipalities for the effect on aspects two of this There are other case their dam- citizens of Sherman Act’s treble deserving preliminary which are observa- provisions. age attempt- at this time. tions Attorney brief for The Colorado General’s the shield the First ed to use Amendment Colorado, concentrating on Amicus State City govern- to avoid interference from considerations, arguen- Sherman Act “assumed an That is obvious overstatement of ment. limit, but do the first amendment escape attempt reality the law and authority. wholly prohibit” does not Boulder’s messages chooses to transmit it pass through a medium which is must sub- speaker. 3. Cable TV is a First Amendment See City. ject some control FCC, Corp. Midwest Video (8th 571 F.2d 1025 readily While defendant Boulder con- 1978) (aff’d grounds sub Cir. other pro- that the cedes First Amendment Video, nom. v. Midwest FCC hibit its control missions, the content of these trans- (1979); L.Ed.2d 692 Home Box it does assert both Office, FCC, (D.C.Cir. Inc. v. 567 F.2d restricting responsibility for the use of the Ill, 1977) cert. den. 434 U.S. system. ways public in this communications Fremont, (1977); Inc. v. L.Ed.2d 89 Greater course, question, is what are the limits Fremont, F.Supp. (N.D.Ohio authority? controlling If content of Ventures, 1968) sub nom. aff’d Wonderland limits, programs beyond the different, those Sandusky, (6th Inc. F.2d 548 Cir. kind, degree for either or in the Jordan, 235, 1970); Weaver v. 64 Cal.2d number, City government prescribe to the Cal.Rptr. (1966); 411 P.2d and Televi- vаriety, scope programming and and serv- Transmission, sion Inc. Public Utilities Com- And, appropriate ices to be offered? is it for mission, (1956). 301 P.2d Cal.2d say that the administration to ac- ceptability company of a rests on cable its Amendment, Concerning trial the First willingness to to contribute free services that judge said: police-power suggestion There is no as the model to First Amendment freedoms be, 90-day moratorium was itself public safety concern and welfare for prior restraint on the impermissible rights-of-way. Nor use of Boulder’s CCC’s right and hear. speak to be, being factor handled could there public utility, with whom CCC contracts effect, by its “ordinances” 4473 and CCC, string to on which to its cables. city poles has said “Thou shall speak your truth to Boulder citizens is to appeal, city’s sole defense On opera area of residing your present outside pretend, disingeniously contrary and to the days.” tion for 90 To Boulder citizens extensive, testimony and uncontradicted areas, said, city has “Thou shall those findings judge, of the trial and specific not for hear It is days speech.”5 CCC’s advice, contrary City Attorney’s to its own imagine flagrant difficult to a more monopoly.” The cable is a “natural chilling inroad on cherished First Amend argument sole in this case is that ment freedoms. opera because there can be one cable It is further difficult to visualize a valid Boulder,7 tor the moratorium was neces charge violating defense to a in this case of sary prevent “wiring to from the en CCC rights, Amendment and those CCC’s First city” tire could conduct city before present of Boulder’s citizens outside CCC’s process bid select what it considered operating area. Absence of concentration company enjoy monopoly. the “best” appear on the issue below would of little or it, put point Not too fine a on here, no where there no moment issue of argument today simply fallacious. As fact, material all relevant facts are of found, judge the trial and as the record moratorium, record. Before the CCC had clear, technology makes modern makes free the right speak During outside its area. open competition practically both the moratorium it did not.6 When it tried to speak, economically city by it was available to the arrested and cables were torn down. four competing least cable communicators.8 government groups injunction. or to such institutions or if he moratoriums сity denied the may appealed injunction interlocutorily, be considered to be in need of benefit bluntly, may or expedite, reward? Stated though ex- moved to even the moratori- act tribute for expired day its favor? injunction um Moreover, after the issued. questions ripe While these impose are not now a failure to continuous mora- decision, they potential problems in this might, city argues, toriums as the elsewhere developing inappropriate situation. It is city” allow to “wire the entire CCC and thus any illegal improper ascribe intent to ac- city’s plan grant defeat the nopoly either one mo- taken, yet may tion which has not been but it city, for the entire or a number of mo- helpful give potential be consequences caution about the Hence, nopolies, specified each in a district. may of that which be contem- plan present must either abandon its plated. carefully should consider impose it must continue to moratoriums authority by narrowly the need to exercise its speak present outside its area. regulations drawn ly which do not unnecessari- freedoms, considered, city says interfere with First Amendment 7. The still consider, e., “districting,” parceling as the lаge Court has cautioned in Vil- i. out areas Schaumburg for a operators. Citizens Better to different cable Environment, Amendment, however, effect on the First same, L.Ed.2d 395. restraining for the would be each operator area, speaking assigned his outside persons 5. The trial court referred to “interested dictating and would be each consumer’s who not before the court.” choice, limiting operator it to the one cable likely, plan, speak 6. Nor is CCC ever chosen to that consumer. speak again present to city, outside its area. The 8. The trial court said: receiving majority opinion, sig- after impose present technology, naled its intent to a second moratorium. Under the more than one repeated, nauseam, company poles its briefs here it ad can be on the same one-time, merely adversely affecting public ways. its temporary” delay “a moratorium without expansion. certainly in CCC’s While there are finite limits to over- city refused, however, Judge building, beyond something to assure Matsch those limits are impose continuing companies. that it would not second and two

713 (1943), Though city may difficulty get have wherein the FCC’s denial of a affirmed, ting granted broadcasting a communicator who is not license was forget- ting statutorily empowered is monopoly part city of all or of the to submit that the FCC airwaves, required parcel to out scarce to the massive controls of its “model ‍​‌‌​​‌​​‌‌​‌‌‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​​​‌​‌‌‌​​​​​‌‌‌‍ordi nance,” spec- physically in the limited broadcast hardly justify that fact could trum, clearly stated. That as the Court so infringement of First Amendment free entirely from the situation is different one doms inherent moratorium Conley us. Electron- before Cited also upon right speak.9 CCC’s FCC, Corp. (10th ics 394 F.2d 620 v. Cir. Moreover, a desire to dictate who shall ; 1968) v. United Sates Southwestern Cable monopolize CATV communications in Boul- 1994, 20 L.Ed.2d articulated, compel- der cannot serve as the (1968); Community Great Falls Cable ling governmental state or required interest FCC, (9th 416 F.2d Co. Cir. justify an constitutionally pro- otherwise ; FCC, 1969) Corp. Hills Video Black silencing right speech hibited of the of free 1968); (8th Buckeye F.2d Cir. press. and free That is true whether the Cablevision, FCC, F.2d Inc. v. awful days sound of silence lasts for 9 or 90 (D.C.Cir. 1967), proposition for the that or 900. upheld “greater courts have intrusions than The city says the moratorium does not enough It answer posed here.” “content,” regulate program stifling but a all of those cases involved FCC controls of all content is the ultimate in content1 signals, over of broadcast re-transmission regulation. choking and none involved egregious The city says rejected the trial court contractually-based right off of a licensee’s “claim that the moratorium violated speak people to more within its licensed the First Amendment” as “an obvious over- area.10 statement of the law” —but it was an alle- medium, Even in respect of the broadcast gation that precluded the First Amendment scarcity where of broadcast channels both “any interference” that was so characteriz- requires justifies regulation, the Su- ed supra. trial court. Note There preme jealously guarded Court has may, course, be limited compelling Amendment, First saying, example, “It government permitting interests some in- listeners, is the of viewers and not the terference, as the cases have shown. As broadcasters, right of the which para- indicated, however, above an insistence on purpose mount. It is the of the First maintenance of monopoly is not such an preserve Amendment an uninhibited interest. marketplace of in which truth ideas will States, cites city NBC v. United 319 ultimately prevail, rather than to counte- 190, 226, 997, 1014, market, 87 L.Ed. monopolization nаnce again: of, barrier, competition. not an economic disagree Alcoa, (2d the evidence shows that cable United States v. 148 F.2d monopoly television is such a only 1945). natural that the Cir. competition process feasible is in the currying favor with the Council to ob- city correctly says 10. The it cannot be forced to permit operate. contrary, tain a To the grant “every operator applies,” a license to competition the evidence is that there can be say but that is not to that the can unilater- marketplace, price with the choice of ally growth operator stifle the voice al- and service left to the consumers. licensed, ready purpose enabling for the sole monopolist to choose a favorite Attorney 9. The and Colorado’s General cite Nor, neighboring monopolists. series of as- potential the refusal of and 2 BCC other suming integrity willingness financial operators compete they granted unless comply police power regulations relating monopoly part over all or “evi- city’s rights way part to use of the preclude open compe- dence” that “economics” applicants, why no li- reason seen cited operations multiple compet- tition. That the granted appli- censes should not be to those getting itors result in one more customers cants. another, however, than is ah inherent element 714 case, the result scarcity which is any itself or a it be the Government

whether apparent- conditions solely of economic Broadcasting Red Lion private licensee.” even limited justify insufficient to 367, 390, ly FCC, v. Co. First into government intrusion (citations (1969) omit 23 L.Ed.2d 371 conventional rights of Amendment actions, whether or ted). city’s Here the Publishing v.Co. Miami Herald press, see well-intentioned, callous and reflected a 241, 247-256, 94 S.Ct. Tornillo, 418 U.S. viewers right of “the disregard total (1974), 2834-38, and L.Ed.2d listeners,” the 80-90% of by preventing and us to the record before nothing there is in operating CCC’s Boulder’s citizens outside be- distinction suggest a constitutional any cable communica receiving area from on newspapers tween cable television ideas, which one city decides tor’s until point. permitted to they will be monopolist’s ideas hear.11 FCC, Further, Midwest Video v. in (8th 1978) the court Cir. F.2d show, When, majority of as studies said: television, I get their news from people our opera- business control of Government cannot, jurisprudenсe, in First Amendment closely be most scrutinized tions must growing a concerning action to still infor- communication of when it affects voice, of news distinguish the dissemination ideas, restraints prior mation and by cable TV from and information in- presumptively those circumstances attempt by city a newspapers.12 Surely, Books, Bantam Inc. Sulli- valid. See ways streets and as a to use control of its 631, 639, van, 58, 70, of a bludgeon deny delivery newspaper (1963). L.Ed.2d 584 days for 90 would be to new subscribers Amendment rapidly struck down on First injunction prohibited review All the grounds. The more so when it became city was unilateral restriction step that the was but a first clear denial television right to “conduct its cable CCC’s plan presence a one insure phrase is my quoted view the business.” oper newspaper, approved by “speak.” synonym a CCC’s rigid control of its ating city’s injunction on First would affirm contracts and content.13 grounds. Amendment technology Even indi- when then-extant Approach The Contract natural mo- might cated that CATV be a deal Office, that we It should be remembered nopoly, the court said in Home Box rights. All of FCC, also Inc. 9 at 46: here with contractual F.2d city’s repeats, First that communicator’s 11. The brief in reference to the chill the exercise of tax, Amendment, rights. power to a its moratorium was to Amendment Like the First unilateral, arbitrary power prevent monopolization to stunt can also be “to foster destroy. power competition marketplace. in” But by merely ease could have done all speaks of auton- 13. constitution Colorado’s granting additional non-exclusive licenses. As omy municipal matters.” record, “local established in the found the trial to “local court here refer trial and the majority, judge, and not the mor- denied matter, merely is not a local concern.” CATV atorium, continuation, and its is critical Co., 392 United States v. Southwestern Cable competition prevent in- effort and to 2000-01, 168-169, if it but U.S. at 88 S.Ct. at monopolization, monopolist sure albeit were, irrelevant to First fact it considers “best.” implications. It' is difficult Amendment enterprise newspa- interlocutory appeal imagine more than a re- local record on this edited, printed, beyond per composed, by city and distributed flects no intent officials a desire grant monopoly communities within of the thousands of licenses to one or more Moreover, monopolists. in the United States. “best” An absolute freedom to like Boulder unilaterаlly growth to non- in relation stifle of a licensed com- Colorado municator, type be careful- activities must officials disliked its communication because applied ly programming position up- to restrict when it is or its in an circumscribed editorial election, rights. coming example, certainly Amendment could First are, In summary, “ordinances” the involved estab fact terms, preliminary injunc contracts. The trial court lished the need for a by their protection tion for the of its business city apparent the “finessed” an found that from could injury irrevocable which occur authority” by “use of a regulatory “lack of pending the final resolution of this dis 90-day in the moratori- approach,” contract pute, under the set forth in standards the city 4472. CCC and um “ordinance” Company Continental Oil v. Frontier Re original the license contract. It is parties to (10th 1964).[14] fining 338 F.2d 780 Cir. pay has failed to argued not even that CCC original fee or breached its con- the city’s injunc- any way. present

tract in All the The Sherman Act15 require city that the honor its tion does is is, Beginning beginning, at the that with existing long so as it is honored contract Constitution, VI, 2, the Article Clause reads injunction could be sustained on CCC. The pertinent part: alone, injection ei- ground without Constitution, This and the laws the ther First Amendment or antitrust consid- United which shall be States made in erations. Pursuance thereof . . . be the shall Land; supreme Though original the Law of the contract is terminable and the Judges in every shall city, city at will the did not termi- State be bound thereby, anything in the Constitution or it, city’s attorneys having nate advised any Laws of to the Contrary State not- it not do breach could so absent withstanding. city argue does not here that its CCC. power justified to terminate It hardly arguable would seem that the moratorium on effort to serve more federal antitrust law among “the laws of Nor, consumers under its contract. would the United States” and was “in Pur- made seem, it can the be heard to assert a suance” of the Constitution. Nor would it contract, right unilaterally amend seem that federal judges appointed under right to serve the covering from one any Constitution are less “bound there- 82,000 covering residents of Boulder to one by” Judges” preceded than “the who them only to serve of those 10-20% every “in chronologically Nor can I State.” presently residents offered service CCC. Colorado, believe that the 55 cities of or the many thousands of cities in the United parties may acquire, after

Though States, any less bound than state trial, respecting liabili- answer judges. federal Nor can believe that a Act, ty immunity under the Sherman we city ordinance can do what “the Constitu- question are here confronted with the sole do, tion or Laws of cannot State” of whether this court should affirm the namely the creation of new immunities injunction against unilateral action supreme from “the Law of the Land.” prevent carrying CCC from out its original lawful business its and con- 1942, concentrating on whether Con- tinuing principles contract. Common of gress intended the Act apply equity appear contract law and would action, legislative Court impel affirmance. Brown, 341, held in Parker v. 317 U.S. 307, 315, nothing As the trial court said: S.Ct. L.Ed. may Though my 14. That trial court have founded ate its business. view the Act, judgment primarily on reasons deemed errone- actions did violate the Sherman and will appeal so, probably ous ling. not control- be shown at trial to have done review, judgment majority opinion immunity suit, It is a we not reasons. rests on being presumed. the violation The brief of the yet guilty 15. The been found Attorney argues per- General of Colorado violating the antitrust laws. We deal with suasively against immunity, but is mistaken on enjoined whether like Boulder unpersuasive arguing the facts and therefore unilaterally restricting, limiting, from ing plaintiff’s or revok- that there was no violation. lawful, rights oper- contractual States, Co. v. United Northern Securities so indicated. history legislative Act 454, 344-47, mentioned, having been VI not Article 459-61, (1904), 317 at Court, U.S. years 48 L.Ed. assumed must be inap- supremacy clause S.Ct. ago, considered congressional in- absence plicable in the Parker, the Court after Thirty-two years particular applied, it be tent Bar, Virginia State decided Goldfarb Act, legisla- to state the Sherman case of 44 L.Ed.2d being the alternative Presumably, tion. , “anticompetitive activities (1975) saying, nullification, require clause compelled by the State direction must be application interference states to avoid 791, 95 S.Ct. sovereign,” Id. at acting as a “corporations” “persons” the Act of Co., Edison v. Detroit at 2015. In Cantor Indeed, unlike their borders. within 3110, 1141 579, 49 L.Ed.2d 428 96 S.Ct. U.S. Parker found no here, in the Court facts ex- that to be , (1976) the Court reaffirmed involved, and “no or contract agreement imple- activity must empt anticompetitive municipality of state or question 585, 96 Id. at policy. ment a statewide private agree- in a participant becoming a Bar of Bates v. at 3115. In State S.Ct. for restraint others combination ment or 2691, 350, Arizоna, 53 433 97 S.Ct. U.S. 351-52, at 314. 63 S.Ct. at of trade.” Id. (1977), said antitrust 810 the Court L.Ed.2d federalism, the Court in requiring our Emphasizing immunity policy can exist where a govern- said, system of “In a dual compre- Parker of part anticompetitive conduct Constitution, which, scheme, in under ment clearly articu regulatory hensive Congress only as sovereign, save are lated, states expressed poli affirmatively state au- constitutionally from their may subtract by the state cy, actively supervised nullify a purpose to thority, unexpressed an 362, 97 S.Ct. at 2698. policymaker. Id. at agents is its officers and state’s control over & v. Louisiana Power City Lafayette Congress.” attributed lightly not be 389, 1123, 55 Light 435 U.S. 98 S.Ct. 351, at Id. 63 at S.Ct. (1978), 364 the Court addressed L.Ed.2d not immunity for cities. After state action be may or not said Whatever strong against implied ing presumption VI Article relationship, any, if between 398, 1129, at immunity, Id. at 98 S.Ct. Parker, holding the Court 1942 not au municipalities Court ruled that an clear that Parker created appear tomatically they immune because solely is limited to exception That exception. 411, entities, at Indeed, governmental Id. at 98 S.Ct. action. Court legislative state 1136, “that “True, appear and that it must give a state does said in Parker: legislature contemplated the kind of action who violate the to those immunity 415, it, complained of.” 98 or Id. at S.Ct. authorizing them to violate byAct lawful,” citing 1138.16 action is declaring that their Services, Inc., F.Supp. (M.D.N.C.1979) Lafayette jurisprudence 476 543 has been in

16. Post (no statutory immunity, county author g., board’s States v. Texas Board accord. See e. United F.Supp. (W.D. ity airport prevention Accountancy, did not authorize 400 over ‍​‌‌​​‌​​‌‌​‌‌‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​​​‌​‌‌‌​​​​​‌‌‌‍of Public 464 curiam, (5th operator); 1978), becoming Whit per fixed 592 of airline base aff’d F.2d 919 Tex. 1977), 925, 262, Perkins, (5th denied, Cir.), Cir. 444 worth v. 559 F.2d 378 cert. U.S. 100 S.Ct. City Impact (no (1979) immunity, prohibit nom. vacated and remanded sub 62 L.Ed.2d 180 1642, Whitworth, 992, bidding competitive 56 ing U.S. 98 S.Ct. 435 accountants denied, 911, (1978), contemplation 440 99 cert. U.S. nor within L.Ed.2d 81 neither directed (no immunity, Act, (1979) Accountancy authorizing 59 L.Ed.2d 460 rules for conspir part accountants); zoning allegedly maintaining high ordinance standards trade); acy Pleasure Mason in restraint of Kurek v. Associates Mason Center (7th District, (N.D.Iowa 1979) (no Driveway City, F.Supp. im & 557 F.2d Park remanded, 1977), munity, anticompetitive agreement Cir. vacated and exercise (1978), rein city’s zoning power 98 S.Ct. 56 L.Ed.2d 81 was not within direction 1978), remand, (7th conferring contemplation stated on F.2d 378 Cir. or of state statute denied, authorizing zoning zoning powers cert. mecha (1979) (no Airlines, immunity, park nisms); district’s Inc. v. Resort Air L.Ed.2d Pinehurst provides Constitution The United States do view, rule cities home my Colorado рow- All system a national of states. immunity antitrust not have federal to the expressly granted ers not what- policy No state Lafayette standards. the states or are reserved government TV. The in relation to cable exists soever Clearly our fed- people. . . . to the in Colorado’s Con- subject is not mentioned part as a envisage does not system eral The Colo- state statute. stitution or allows It therefore city-states. thereof de- Commission rado Public Utilities arm rule cities can be that home over cable jurisdiction clined to exercise delegated state with branch of the Investigation and Sus- In re television. See original) (emphasis in power, No. 6 of Revised pension of First Sheet of Mountain States No. 5 Colorado PUG in the Constitution Colo “[AJnything [of decision Telegraph Company, Telephone & notwithstanding,” I Contrary to the rado] 25, 1968). noWith (January No. applied be Act must think the Sherman TV, of cable regulation whatever on policy Boulder, pieces not have the if we would otherwise, be said hardly it can cities or pie.17 larger than the pie displace has a state “to Colorado denial interprets Court’s regulation in cable TV competition” Lafayette as оcca- immunity less can it service. Much monopoly public proprietary of there presence sioned comprehensive, has a said that Colorado be of direction absence there interest and the articulated, expressed, affirmatively clearly pursuant to by the state or authorization supervised anticompeti- actively state competition with displace policy state TV. policy for cable tive public service. It monopoly regulation says that because Colo- majority Hear the calling Lafayette by City then dismisses and because Colora- nothing rado has done activity “an exercise Boulder’s contractual gives its cities “home- do’s constitution (a applica- label governmental authority” rule,” are free of the 55 cities of Colorado by any govern- any and all action ble to Act, they are within their the Sherman ment), by substituting, in reliance are to be “sovereign,” they status, borders poli- city’s rule” Boulder’s “home excep- thus within the treated as states and “fostering competi- which it as cy, describes says that majority The also franchise,” tion of Parker. for the re- a tion to receive Retail, city was con- in which a displaсe California “to policy quired-but-absent state, here, where applicable trolled a is competition.” controlling itself. But the dual a is owned and City Lafayette, sovereignty approach of

government, state utility. plurality operated its electric inapplicable is here. Parker and California declined, however, to decide the invitation “city-states” a not of but We are nation Justice’s concur- on that basis in the Chief States. ring opinion. As Mr. Justice Marshall’s majority ma- opinion emphasized, Not mentioned and the concurring Sweet, recognize, 138 Colo. 329 P.2d the “test jority appears Denver here (1958), Lafayette which the is whether Colorado established” in home-rule cities which action is “directed or authorized city’s Court rebuked to dis- being ‘pursuant policy as like medieval to state “think of themselves the state regulation or mo- adding, place competition at with plenary powers,” city-states ” nopoly public service.’ 444-445: Act, Congress, golf other Act of statutory authority man courses did not over fixing were viewable as exempt price or au- least insofar as the matter not within direction concern,” poli- governing if the state’s of the statute. of “local even thorization one cy encourage competition, and if state was to constitution, broadly prescribed particu- legislation adherence to the as 17. The Colorado ap- majority, Congress literally interpreted would under review. lar Act of pear Sher- immune from the to render Boulder First, judge majority faults trial in entre- engagement direct city’s If the differentiating the “two between been influential not preneurial activity had so city.18 But there principal actions” plurality would Lafayette, was differentiate. no reason to pages not, required have presumably, legs, actions, equal were of like a man’s so; required it been nor would have say in the importance dimension displace compe- policy to explicate its “state Moreover, majority recog as the scheme. rationale, it nor would have included tition’’ nizes, expired the after day the moratorium warnings implication strong against judge trial did and the injunction issued immunity. differentiate, ordi considering the model lurking guidance may Whatever an deny nance and intent refusal opinions in of the five of Lafa- lacuna as substantial repeat the the moratorium majori- its yette, key dismissal factors, which, continuing as discussed to lie in the view that ty appears here above, they were and are. a matter of local concern. solely CATV Next, judge faults trial so, majority’s interpre- that be literal If done, way things were objecting constitution, of the Colorado tation quote But in its not to what was done. action, action as state treatment below, judge opinion from the the trial holding immunity from the of absolute what done was pointing out that Act, display reach of the Sherman was not “regulation,” that what was done But, said, logic. judge the trial surface and that police power, an exercise of the widest, “there are wider concerns.” The employment what was done was indicated, is concern for First above function, unques- city’s contracting which concern Amendment freedoms. wider was. tionably open of free and for the national competition stay should the hand of the majority says the adding exception issue, courts for cities to city says not an but that is elsewhere exception arising Parker city the for states from encom whether the of the injunction, the passes v. Brown. I would affirm if freedom to violate the an unlimited grounds pri- a ma necessary, on the cited as Act is the central issue. The Sherman court, is, jority Supreme mary by basis the trial that then cites the Colorado decision, finding preg “in city’s conduct reasonable Court’s Manor Vail it probability case, possible will be declared to nant relation this be unlawful under the with though the nowhere mentions the antitrust laws.” court Act in that decision.19 Majority Opinion The as majority The then visualizes cable TV matter, per- a local a view in majority opinion purely is rooted in a conflict holding immunity city directly contrary ceived absolute with the and, laws, the federal antitrust understand- Court in United South States 157, 168-169, 88 ably, only treats I remain western Cable question. troubled, however, 1994, 2000-01, me is sorely by what to a S.Ct. L.Ed.2d gnawing presence (1968).20 negative pregnants. actually (1) activity There Ordi- 19. The nature of the review were three actions: important. applicable similarly and its en- all sit- nance forcement; moratorium Rates city (2) making plain- by set in Manor Vail. Ordinance uated were case, permitted acceptance; (3) present tiffs and some were continued service an citizens CCC, offering proposed creation and model while others were denied that ordi- service nance, city service, specifically control-by-contract city’s giving the and the actions were total Boulder, monopoly. designed as well and to insure a cable TV business as intended ownership to eventual of that busi- Pix, specifically repeatedly majority’s ness. The of TV Inc. and 20. The citation attorneys Taylor, advised its use of its L.Ed.2d contracting comparable power might escape charge involving with a a situation Pix, appears In TV antitrust violation. strained. case effect” of “a ing the “direct and immediate by dis- been meant may have

Whatever un- an artificial and trade and control restraint of between missing the “differences allocation,” market (the geographical reasonable power” differ- police contract or correctly found. judge crit- as the trial on occasion ences are substantial ordinances ical), challenged its above, respectfully I most As discussed business.” much “in the television very majority’s effective disagree with the intent, are, in fact and “ordinances” city’s City Lafayette. the dissent adoption of contracts, interest. reflecting proprietary a here in for the result support can I find Nor view, judge, the as in that of the trial my Retail, permit im- which would California nothing had challenged actions of the “clearly the restraint munity only when safety, the control of public to do with articulated,” “affirmatively expressed” and weapon used to con- being mérely the ways by the state. “actively supervised” actions cable market. Its entry trol to the cities, rule status of Colorado home and were not government were not actions articulation, ex- negative fact authority. “governmental” an exercise of absent, totally supervision pression, in- contrary, city’s “proprietary On the Retail make California my cannot in view terest,” greater a acquire its desire to here. pregnant pertinence with interest, and dictat- proprietary permeated court that the trial Lastly, though agree here involved. ed all of its actions factor,” on “the antitrust primarily focused that the then asserts indicated, should, take a as above this court hearings, held stated discussions view of the case.21 broader consultant, a but purposes, employed argument that it had Treating city’s is not the elsewhere asserts that the issue concerns, power over local of a state but what was done. way things were done trial court said: apparent was an viola- And what was donе concerns, in- Obviously there are wider laws, tion of the federal antitrust commerce, giving rise cluding interstate in its statement majority confirms power uncertainty to some about fostering com- city adopted policy “The regard, in this both government the state franchise, . . .” petition to receive a to interstate in terms of an obstruction is, competition for the (my emphasis) that commerce, respect to the First market, in the market. competition rights of communicators. Amendment “again a non- phrase, The relevance of total-control Recognizing that franchise,” like the insis- exclusive TV yet found a cable ordinance had calling “pro-competi- tence its actions it, recognizing enterprise accept but also tive”, light is difficult to understand in the moratorium relationship the critical unquestioned at all times freedom contract, court cau- the model the trial grant non-exclusive franchises additional tioned: and its continued refusal to do so. carefully consider the City should misunderstood if con-

phrase may also be authority by narrowly need to exercise its any way challenged in related to the sidered not unneces- actions, which do attempt regulatiоns were an to “re- drawn which with First Amendments sarily hav- interfere plaintiff, strict the lawful business” of majority Court, recognizes that the first mora- Supreme 21. The and without com- order yet ment, long ago, appears judgment to fo- affirmed a in which the district torium terminated court, (D.C.Nev.), solely Though F.Supp. I view that action. stated cus on that impermissible Amend- on First TV was in interstate commerce but action alone as cable utility ‍​‌‌​​‌​​‌‌​‌‌‌‌‌‌​​​​‌​‌‌​​‌​‌​‌​​​‌​‌‌‌​​​​​‌‌‌‍by equipment regulation (and and inevi- grounds intended its limited note its ment unconstitutionally city following repetition interfere issuance the State did not table regulation opinion), majority That was that it cannot with that commerce. I submit control-by- vastly different from the market vacuum. be viewed in a Again, attempted by the here. contract antitrust law is nowhere mentioned federal in TV Pix. Conclusion freedoms, Court has cau as the Schaumburg v. Village of Citi tioned in interference with city of Boulder’s Environment, 441 U.S. zens for a Better part of plaintiff, as the lawful business of (1979). 60 L.Ed.2d 395 control the market plan manipulate and Boulder, with in- TV services this court’s concern Attempting follow infringement and concomitant herent circumstances, such the trial equity Amend- First and cable consumers’ irreparable and bal- injury court found CCC injunction. rights, fully justified ment еquities, saying: anced the considera- I aside Act would set finally If lawsuit is decided in fa- this injunc- appeal this and affirm the tions on Boulder, any vor the defendant grounds. tion order on First Amendment can be reme- injury may which it sustain died of the cables involved by removal plaintiff’s plant.

the extension balancing

In the trial court equities,

did indicate that “conduct” probability

such “in will that it reasonable the antitrust be declared unlawful under CORPORATION, CASCADE BOISE laws,” took a look: but broader Appellant, requires equity What here protected be in the exercise of RAILROAD COMPA- prior UNION PACIFIC rights the lawful which it had to the Pedro, Angeles NY; and Salt San Los probability which in conduct reasonable Company; Railroad and the Unit- Lake will unlawful under the be declared be America, Appellees. ed States considering public laws. antitrust how interest and it affected No. 78-1462. necessary look injunction, States Court Appeals, United beyond national Boulder Tenth Circuit. protecting competition. free market Argued Jan. 1980. e., (i. reversing judgment below July Decided 1980. injunction order) the vacating effectively liberty holds that is at Rehearing Sept. Denied unilaterally prevent plain- the exercise of tiff’s rights, lawful contract and cannot be

stopped doing the irreparable so to plaintiff, regardless

harm even equity, Moreover, completion

pending of trial. here,

view so the outcome can do citing single

without valid basis or reason.

Convinced that shown no

basis infringement for its CCC’s and press

Boulder’s citizens’ freedom of

speech, rights, of CCC’s contract and of compete freely fairly must, marketplace, reluctance recognition personal capaci- with full error,

ty join respectfully decline

majority opinion.

Case Details

Case Name: Community Communications Company, Inc. v. City of Boulder, Colorado

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 1, 1980

Citation: 630 F.2d 704

Docket Number: 80-1348

Court Abbreviation: 10th Cir.