730 F.2d 1549 | D.C. Cir. | 1984
Opinion PER CURIAM.
This case is a petition for review of orders of the Federal Communications Commission (the “FCC”) requiring Quincy Cable T.V., Inc., to carry the signals of three commercial broadcast stations over Quincy Cable’s cable television system. Quincy Cable contends that the FCC’s orders vio
To our utter astonishment, the parties to this review presented significant factual developments to the Court on the eve of oral argument, which developments apparently were not considered by the FCC, despite their relevance to the legal contentions of the parties. Accordingly, we remand the record to the FCC for a determination of Quincy Cable’s claims in light of the current facts pertaining to Quincy Cable’s channel capacity, tier structure, and other factual developments not considered in the record of the FCC’s prior proceedings.
Quincy Cable operates a cable television station in Quincy, Washington, a town approximately 125 miles equidistant from Spokane and Seattle. At the time of Quincy Cable’s initial petition to the FCC for an exemption from the FCC’s “must carry” rule,
The Chief of the Cable Television Bureau denied Quincy Cable’s request to discontinue carriage of the three Spokane stations in April of 1980.
Each of the orders and opinions of the Bureau Chief and the Commission was premised on the fact that Quincy Cable operated a cable system of 12 channels, three of which were used to carry the signals of the commercial broadcast stations in Spokane under the FCC’s “must carry” rule. In the briefs submitted to this Court on review, petitioner contended that the FCC’s actions violated the first amendment by, in effect, proscribing the system from delivering new programs in the viewers’ interests “because of the cable television station’s limited capacity which permits a maximum of 12 channels of service____”
One week before oral argument in this case, the Court was informed that Quincy Cable had expanded its channel capacity from 12 to over 30 channels.
We are unwilling to decide Quincy Cable’s challenges to the FCC’s actions on the basis of a factual record which, it turns out, may be highly inaccurate in substantial and relevant part. We, therefore, remand the record to the FCC for it to consider Quincy Cable’s claims in light of the current facts, so that the FCC’s decision, as well as any subsequent review by this Court, will be grounded on a proper factual basis. In so doing, we note that over three years passed between the date of Quincy Cable’s initial request for an exemption from the “must carry” rule and the FCC’s final order in this case. Because of this long lapse of time, we remand to the FCC with instructions that the matter be handled expeditiously and that a final determination be issued by the FCC within six months.
For the reasons stated above, the record herein is remanded to the FCC for further proceedings in accordance with this opinion. The Commission is directed to complete those proceedings and to return the record within six months from the date on which this opinion is issued. This panel will retain jurisdiction of the matter. We will consider this case upon the return of the record as supplemented and we will
It is so ordered.
. The "must carry” rule provides:
A community unit operating in a community located wholly outside all major and smaller television markets, as defined in § 76.5, shall carry television broadcast signals in accordance with the following provisions:
(a) Any such community unit may carry or, on request of the relevant station licensee or per'mitee, shall carry the signals of____
(4) Commercial television broadcast stations that are significantly viewed in the community of the community unit.
47 C.F.R. § 76.57 (1982).
. See Joint Appendix (J.A.) at 38-40.
. See supra note 1.
. J.A. at 39-42.
. J.A. at 1-2.
. Memorandum Opinion and Order, 18 August 1981, J.A. at 3-9.
. J.A. at 10-11.
. Memorandum Opinion and Order, 22 April 1982, 89 FCC 2d 1128 (1982), J.A. at 12-22. After Quincy I, Quincy Cable dropped two of the Spokane stations from its cable carriage and did not resume carrying them until the full Commission issued Quincy IV.
. Memorandum Opinion and Order, 17 February 1983, J.A. at 23-36.
. Brief of Petitioner at 12.
. Brief of Petitioner at 14.
. Supplemental Brief for Respondents at 2.