The American Civil Liberties Union v. Federal Communications Commission, and United States of America, 523 F.2d 1344

The American Civil Liberties Union v. Federal Communications Commission, and United States of America

523 F.2d 1344

9th Cir.

1975

Check Treatment

*1 1344 аccounting damages to an for relates of Grotri- consideration careful After modified, profits. judg- As so we are injunction objections an’s ment is affirmed. court the district persuaded rejecting Grotri- its discretion abused appeal. No costs on in view of Grotri- laches defense an’s attempt to trade deliberate an’s Steinway’s reputation in the United v. 307 Company, Baker Simmons States. (1 1962); My-T 458, 4 466 n. Cir. F.2d 76, Samuels, 69 78 F.2d Corp. v.

Fine 1934). injunctive We affirm

(2 Cir. district court. granted

relief damages and award of An The AMERICAN CIVIL LIBERTIES subject principles of is also profits Petitioner, UNION, v. Stiftung Veb Carl Zeiss Carl equity. v. Jena, 686, (2 Cir. 433 F.2d Zeiss denied, (1971); 403 U.S. 905 1970), cert. FEDERAL COMMUNICATIONS COM- MISSION, 7, note A supra. and United States of 15 U.S.C. infringement, America, Respondents. past for monetary award concomi however, automatic No. 73-2886. injunctive relief grant tant of Appeals, United States Court of H. A. infringement. future against Ninth Circuit. Laboratories, v. Inc. American Metz Co., 598, F.Supp. Pharmaceutical Sept. 1975. Winthrop aff’d sub nom. (S.D.N.Y.1936), Co. v. American Pharmaceuti Chemical 1938). Co., (2 Cir. 94 F.2d cal

Steinway learned Grotrian’s country early as as pianos in this

sales nothing the Wurlitzer did until It in 1967. Un announced was

agreement there was an circumstances der such monetary claim abandonment notwithstanding Grotrian’s delib

relief, Mill infringement. Hanover Star

erate Metcalf, 240 U.S. v. ing Co. Holt, v. (1916); Menendez Fleming, 96 U.S. (1888); McLean (1877); Ass’n for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍San Francisco Blind, v. Industrial Aid Blind (8 1946). Inc., 537 Cir. We 152 F.2d court erred in the district

hold damages prof an award granting por and we vacate that Steinway judgment.

tion of the dis- judgment of

Accordingly, the para- by deleting is modified court

trict as provision except for graph paragraph

costs, so much of $100,000 high production capacity accounted at the time this action was corresponding for a rise from 16 to in actu- commenced less than it was in 1927. per year. Moreover, al unit sales Grotrian’s

Dennis Grossman (argued), American Union, Civil Liberties City, New York petitioner. Gregoary M. Christopher (argued), Counsel, Federal Communications Com- mission, C., Washington, D. respon- dents.

OPINION CHAMBERS, Before TRASK SNEED, Judges. Circuit SNEED, Judge: Circuit The American Civil Libеrties Union review (ACLU) brings petition the Federal Com- specific aspects two promul- order munications Commission’s regulations pertaining gating rules set forth in (CATV) cable television reconsid- (1972) F.C.C.2d 36 F.C.C.2d 326 appearing in eration granting lied in the Commission’s motion challenged aspects are two changed. (1) to transfer to this circuit have to im- the Commission the failure Specifically, the Commission’s motion un- obligations on cable pose carrier common 2112(a) (1970)1 der 28 U.S.C. to limit television access peti- based the fact that certain cable owner to one by the cablecasting *3 respect “with tions for review deny order and the We affirm channel. previously same order” had in been filed review. petition for the this argued circuit. The Commission I. proceedings by that since the commenced petitions these it were “first instituted” and Venue. Jurisdiction duty Appeals of the the Court of of was to Jurisdiction consider the proceedings District to transfer these 2342, 28 28 U.S.C. petition § rests position adopt- this circuit. This 402(a). In § and 47 U.S.C. U.S.C. § by Appeals ed the of the Dis- Court of involving peti this proceeding an earlier however, appears, trict. It now that Dis Appeals, of the Court tion before proceedings these “first instituted” were Circuit, trict of Columbia the Commis by remanded to the Commission this petition as one to dismiss sion moved court on the motion several Commission’s alternative, and, filed, timely in argument prior oral in this months circuit petition to this to transfer case. We do not believe this defeats our 2112(a) (1970). pursuant to 28 § U.S.C. jurisdiction, improper makes venue in Appeals of the District de of Court this court under 28 or U.S.C. § transfer the motion to dismiss and nied requires relitigating the issues of which this circuit. 158 petition red pre- Appeals the Court of of the District F.2d 411 Al App.D.C. viously disposed. U.S.App.D.C. suggests thоugh the Commission 486 F.2d 411 Once a valid trans- by overturned dispositions both this pursuant 2112(a) fer to 28 U.S.C. § court, proper A we declined to do so. accomplished, validity has been economy ju promoting of concern for ordinarily impaired by the should not be effort, expressed that be whether dicial subsequent proceeding “first fate of the otherwise, or as the law of the case instituted.” relitigate plainly we not requires that II. by the Commission in the issues raised Standing. Appeals of the District. of challenges even also position this The Commission We take bring peti- though standing the circumstances the ACLU to of the District re- Appeals of the Court of tion for review under U.S.C. § 2112(a) 1. 28 reads in as follows: transferred it The re-transfer § U.S.C. that court. part by ground 402(b)(7) was on § that 47 U.S.C. proceedings instituted . If have been of the in Court of District Appeals vested in re- two or more courts of with appeals jurisdiction exclusive of from cease appeals agency, board, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the same order spect desist orders of Commission. ap- or shall file commission, officer concerned 402(a) peal here is based on 47 § U.S.C. in such courts in the record that one of 402(b). not § proceeding which a or- with to such respect proceedings The other courts in The court in der was first instituted. “are first proceedings pending course, instituted,” which such are shall transfer may ceedings court of other court transfer them to the “for the ap- appeals thereupon convenience in which the record has been filed. interest parties peals justice.” 2112(a), For the convenience 28 U.S.C. parties § n. 1. supra, justice interest of such court thereafter may suffering legal wrong 3. A proceedings because person all transfer respect agency ag- action, or affected or adversely other court of such order to any appeals. grieved agency meaning action within the by distinguishable 2. Vi This case is from Valley judicial of a relevant statute, re- entitled (9th C., sion Inc. v. F. C. 399 F.2d 511 Cir. view thereof. Pub.L. 89-554, 6, 1966, Sept. 1968) in to the Court which this court returned Stat. 392, 5 U.S.C. 702. of the District a case Appeals previously ACLU, and 28 U.S.C. 2344.4 as- zone of protected regu- interests to be or Commission, serts the has suffered no by agencies lated’ the statutes that the wrong “adversely legal nor been affected were claimed to have violated.” Id. at Assum- 733, action.” aggrieved by agency at The necessity S.Ct. 1365. appear before the ing standing to fact,” an “injury continued, the Court judicial to seek Commission by eliminated the existence of an gov- review of a are 739; Commission order problem,” “interest in a Id. at one (an assump- erned the same standard “seeking allege reviеw must facts show- recognized tion heretofore the Court ing that adversely he is himself affected Appeals of the District Columbia . . .”. Id. at Circuit in of Communication of Office ACLU, a membership corporation un- C., United Church of Christ F. C. law, der New York alleges effect U.S.App.D.C. 359 F.2d 994 n. represents its members who have suf- *4 8), claim the Commission comes rather injury fered an in fact because of the appears late inasmuch as the ACLU to two aspects of the Commission’s order participated vigorously have in the rule- here being challenged consisting of a making procedure which led to the order failure to maximize the number of being However, here reviewed. our res- sources of programming to be by carried standing issue olution of the is not influ- cable injury television. plainly This delay. by enced this within the pro- zone of interests to be regulated, ACLU, tected or asserts the guided We are by the fact that the because maximization of sources of listening viewing and audience of a sta- gramming is “a basic tenet of national tion, acting through legitimate a repre- policy,” communications Report First sentative, has been standing accorded CATV, and Order on 20 F.C.C.2d intervene before the Commission in that station’s license renewal proceeding. Of and consistent with pur- the poses of the First Amendment. fice of Communication of United Church C., supra. Christ v. F. C. The interest allegations While these indicate of the “consumer” was held sufficient to injury no different from that which justify standing. Furthermore, we are would by be suffered all “consumers” of required to interpret 5 U.S.C. 702 as § product CATV, the that alone is not did Supreme the Court in Sierra Club v. preclude sufficient standing. See Morton, S.Ct. SCRAP, United States v. 412 U.S. L.Ed.2d 636 There the Court 687, 37 L.Ed.2d 254 persons said that have “standing to ob- Nor are we prepared to assert judicial tain review of agency fedеral ac- allegations merely ACLU’s restate an tion under 10 of the § APA U.S.C. “interest in a problem,” regula [5 viz. the they where alleged § had 702] that the tion of cable television. The issue before challenged action had caused ‘inju- them us simply is different. It is whether the fact,’ ry in alleged and where the injury record sufficiently available to us dem was to an interest ‘arguably within the onstrates the alleged existence of the in- orders; time; 4. notice; § 2344. Review of (2) based; the facts on which venue is petition; contents of (3) service. grounds sought; relief is which and entry of a final order un- On reviewable (4) prayed. the relief chapter, agency promptly der this shall petitioner petition, shall attach to the give by publication notice thereof service or in exhibits, copies order, report, of the or deci- Any party aggriev- accordance with its rules. agency. sion of the The clerk shall serve a by days may, ed the final order within after copy petition agency true of the on the and on entry, petition review the order in file Attorney mail, registered General with appeals the court of wherein venue lies. The request receipt. for a return Added Pub.L. against action shall be the United States. The 89-554, 4(e), 6, 1966, Sept. 80 Stat. 622. 28 petition shall contain a concise statement of— U.S.C. proceedings the nature as to sought; which review is (1974). Carriage of television which exists the situation jury. Unlike original signals, broadcast function cases, for exam- many environmental systems, of cable cannot absorb all of alleged injury is so ple, these channels. The not em- subject judicial no- as to palpable carriage of ployed television cir- with tice, here are confronted we signals provide broadcast the opportunity of the in which truth cumstances for the of a development medium of only be injury in fact can allegation like precisely not examining communication the merits determined presently familiar. we are peti- If the claim. the asserted by the Report the President Cabi- is meritorious it follows review tion for Communications net on Cable Committee injury suffered an that its members (1974) put way: prospects Quite frequently, perhaps in fact. of the truth determination usually, development “We believe that cable injury of an in fact allegation of the has the potential creating an elec- require an examination does not tronic medium of communications cir- claim asserted. Under merits of the diverse, more pluralistic, more frequently existing, the issue cumstances print more like open, more indepen- regarded as can be film our media than broadcast the case the merits. Suсh dent of system. provide minority It could here, however. aged, groups, groups, ethnic young, people living same escape there result is no is. *5 neighborhood opportunity to ex- If examining merits. from exists; press, expressed, their meritorious, and see own if standing claim is views. would also enable Yet it all of not, standing not fails also ceas- but exposed groups these to be to the es relevant.5 to be others, views the homogene- of free of ity contemporary which characterizes III. Id. at programming.” 15. television The Merits. present are not reali- Future prospects Regulation. A. Mode ty, growth period and however. A development The Commission needed. is recognize All that “Cable television of- challenged attempted here order technological fers the and po- economic words, establish, to in its “a basic frame- tential eсonomy of an of abundance.” may work we measure ca- within which (1970). 25 F.C.C.2d 39 This is true promise, ble’s assess role technological its large because of the number of channels in our nationwide scheme of communica- which it technologically possible is for a tions, adapt its poten- and learn how single system possess. cable Systems energetic growth tial for to serve the having than 60 no less appear channels public.” 189. 36 F.C.C.2d installed, been F.C.C.2d (1972), although a “basic framework” re- “20-channel” envisioned sys- generally quires tem adequate pres- is the allocation available to meet carriage ently demand. foreseeable between the televi- F.C.C.2d may Trask, Judge have enhanced the dissenting, that case takes us to task vigor requirement “avoiding” there be a “dis- standing for issue. We do not party seeking injury” palpable tinct and believe we have done so. Our view is that this standing, type it did not overrule United States possible is not the of case in which it is Morton, SCRAP, say supra though Club v. su- and Sierra might right that even be pra. appears Judge (viz. to believe that even Trask on the improperly merits that FCC failed merits, injury right if to its ACLU is on the to maximize the number of sources sufficiently palpa- grams by distinct and television) members to be carried cable it has disagree. standing. standing. ble to We Stand- Rather warrant we are if convinced that showing right ing “economic requisites ACLU is on to those the merits not limited interesting standing passing, to observe exist. We harm.” it is do not read Warth v. Sel- din, analysis closely Judge in his how Trask 95 S.Ct. 45 L.Ed.2d contrary. discussing Supreme to be merits. While the comes 251(a)(ll)(iii). exist no There signals, 47 CFR 76.51— restric- §§ sion broadcast tions on charges the level of (under 76.55, cablecasting may be origination imposed. circumstances) 185-6, “one more F.C.C.2d 199- on certain (1974). 76.201, channels,” 47 § CFR designated use, 47 сhannel” “access so-called Each of the channels, above types of channels” “access CFR 76.251. § other than government local channels, “public one access least of at consist may lottery information or channel,” access channel,” “education obscene or indecent matter. 47 CFR channel,” access government and “local 76.251(a)(ll)(i), (ii), § (iii). No other as access channels” “leased and such restrictions, other than those relating to 76.251(a)(4), permits. 47 CFR system § political commercial and advertising, on (5), (6), program content exist. subject must Public access channels recognizes Commission requiring non-diserim- first-come rules mode of is interim in nature. 76.251(a)(ll). 47 CFR inatory access.6 § (1972); F.C.C.2d 194 F.C.C.2d channel must one access At least 184r-5 Access channels pose charge. without be made available many issues which the Commission does However, сharge production costs not believe present experience en- exceeding presentations of live studio ables it satisfactorily. to deal with Its 47 CFR may be assessed. five minutes approach, regulatory reflected presentation 76.251(a)(10)(ii). The sketched, structure impose here rel- advertising is political commercial and atively few restrictions the use of 76.251(a)(ll)(i). CFR prohibited, access channels and await the results of private ordering which time ex- channels, Education access available perience provide. will Specifically, authorities,7 use local educational recognizes that while common carrier charge must be offered free of for at may status appropriate become an regu- years least five completion after the latory future, structure system’s basic trunk line. 47 CFR *6 is better served rulеs which 76.251(a)(10)(i). polit- § Commercial and allow the forces of the- place market advertising ical are also barred. 47 CFR freely.8 function regulation Rate in the 76.251(a)(ll)(ii). § absence experience of it believes would be detrimental development of ca- channels, government Local access ble television. government local available for use for purposes, must be also offered free of B. period

charge during ap- same as is ACLU’s Position. plicable to education access channels. 47 The is position fundamentally 76.251(a)(10)(i). No CFR restrictions § different from that of the Commission. imposed. are advertising on The ACLU wishes have access chan-

Leased access must be sub- nels treated as common reg- carriers and ject requiring to rules first-come non-dis- provided by ulated manner Sub- access, sponsorship criminatory chaрter of identifi- II the Communications Act of cation, schedule, appropriate rate an and 1934. 47 201-222. U.S.C. Consistent §§ permitting public objective, of inspection urges a record with this the ACLU that of origination cablecasting by system names and addresses those re- cable questing time. 76.- owners CFR ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be limited one channel § rather recognized 6. The 7. This public Commission has reser- embraces more than the local long- “Any vation of access channel time a school on board. fide bona educational in- permissible long term basis is terest so this should does have access to the educational unreasonably not pro- exclude the occasional channel.” 46 F.C.C.2d 185. Commercial grammer excluded, enterprises from access to desirable time educational are however. slots. (1974). F.C.C.2d Id.

8. 46 F.C.C.2d 36 F.C.C.2d 352 tion and innovation. as the “one or more” channels than to regulаtions permit. challenged reg- system asserts a cable ACLU Disposition on Merits. C. (1) more ulated in this manner would It is not for this to substitute its court against unreasonable completely guard the Commission. judgment that of access to providing discrimination position The taken the Commission is channels, (2) provide for use tariffs represent choice rational and does maximum setting forth access channels capricious action. Sub- arbitrary and charges, (3) secure and minimum its decision. supports stantial evidence “upon rea- availability of access channels demonstrate prevail, To ACLU must (47 request U.S.C. sonable therefor” required adoption proposals its 201(a)), (4) prevent sys- the cable and by the statute Commis- from preempting from the bulk operator tem authority regulate sion derives its of the revenues which the use of This it cannot do. CATV. generate. access channels would consequences such would question authority program- be to maximize the sources of regulate Commission to ming asserts the ACLU. open spoke until Supreme one States v. Cable United Southwestern position This not a without merit. Co., 88 S.Ct. channels, technological Access from a dealing with a L.Ed.2d 1001 point view, could function as common authority challenge to Commission’s carriers.9 The Cabinet Committee CATV, regulate which at that time Communications, moreover, Cable in its improv- served the dual functions Report to the President recom- and trans- ing reception of stations local following peri- mended that a transition stations, signals of distant mitting the control of od the cable facili- distribution the Court held that the Commission’s au- separated pro- ties be control of from thority rested on the Communications Report, p. gramming. 29. Cross-subsidi- 152(a) Act of and U.S.C. §§ programs zation of the of the owner of 303(r). provision specifically Neither ad- system the cable expense of other CATV, problems dresses whatever system danger users of the was a technological complexity. its form or sought Cabinet Committee to avoid general expansive in Both are tone by its recommendation. scope. Thus, 152(a) commences purpose by would serve same provisions the words “The posals. hand, On the other the Cabinet apply to all interstate chapter shall *7 against regula- Committee recommended by wire or foreign communication radio by any governmental tion authority of .”, that 303(r) provides and § prices charged to subscribers and authority to Commission shall have Report, p. channel users. 38. The regulations rules and and “Make such position requires just regu- such and restrictions condi- such prescribe lation. law, tions, may as not incоnsistent provisions Commission, necessary carry be to out with commendable . ”. Notwith- recognized . . candor, chapter the merits of the has this being earlier doubts rejected generality, It this position. was authority (1972). its to by 36 197 the Commission “premature.” F.C.C.2d 403, (1959), thereof, 427-31 regulate, fash- 26 F.C.C. lieu Commission In attempt to by the Commission regulations provide an incen- and an its to ioned legislation specifi- orig- Congress system operator to enact tive the cable authority, the Court cally granting such inate material attractive to subscribers 152(a) vested the Com- experimenta- recognized that § constraints on and to avoid Collier, Broadcasting set carrier forth in Frontier Co. 9. See the definition of a common 251, 24 F.C.C. Collier, Broadcasting Company v. authority mission with such as is “rea- (1958) Philadelphia F.C.C. 251 sonably per- Tele ancillary to the effective Broadcasting C., Co. v. F. C. re- vision formance оf Commission’s various 298, U.S.App.D.C. 359 F.2d 282 sponsibilities regulation televi- that broadcasting.” sion at asserted or held the Commis- U.S. authority required regulate S.Ct. at This sub- sion was not ject imposed II, regard restrictions we precise Subchapter under do these Act, by the 1934 Subchapter historically either II of decisions as instructive. The carriers, or dealing with common Sub- under the regulation evolution of CATV III, chapter authority with broadcasters. dealing described Southwestern Ca- Co. and Midwest Corp. ble Video should jurisdiction again This was source governed by late date be not at this Sub- recognized by the Court United States chapter simply II because access chan- Corp., v. Midwest Video U.S. nels, system’s capaci- portion of a cable 32 L.Ed.2d 390 when it ty, possess technical characteristics which program held that the Commission’s ini- possible regulation make their as a com- rule, 76.201(a), tiation now in 47 CFR § Wе, Ap- mon carrier. like “reasonably ancillary to the effec- peals Circuit, of the District of Columbia performance tive respon- various [its] believe that the must be ac- Commission sibilities regulation for the of television dealing corded flexibility in with CATV broadcasting.” at 92 S.Ct. jurisdiction and that should not be point 1868. At no did the Court ei- “rigidly compartmentalized into ‘licens- plurality, concurring, ther in the or dis- ing’ ‘public regulation’ utility func- senting opinion, suggest hold or Cablevision, Buckeye tions.” Inc. v. F. CATV, even when its dual functions rec- C., 262, 267, U.S.App.D.C. C. ognized in Cable Co. are Southwestern n. 19 F.2d The task of required origination by cable- augmented reducing flexibility, if such is casting, subject gover- to the exclusive done, belongs to the properly Con- more Subchapter II nance of or III. either gress courts. This view than to the These two decisions are the weakened, strengthened, by than rather by markers guided. which we must be regulatory thе fact Together they indicate that the Commis may be structure of cable television authority regulate sion’s CATV is compromise result of a reached very broad and not circumscribed adopted by affected industries rules of Subchapters II and III. More objectiona- Commission which some find precisely, believe, hold, we and so ground ble on one or another.10 the Commission’s failure impose com obligations mon carrier on access chan authority sum, has the Commission imposition nels and its of the rules above promulgate regulations described are actions “reasonably ancil complains and the future of the ACLU lary performance to the effective of [its] regulations impose common car- these various responsibilities for the and to lim- rier status on access of television broadcasting.” To hold oth one owner to cablеcasting by the cable erwise ignore history would capri- arbitrary nor channel is neither CATV, Commission’s regulate efforts to cious. *8 be contrary to the teaching unmistakable Affirmed. Court, Supreme of the and indicate a part conviction on our the ACLU is right in insisting on common carrier sta TRASK, Judge (dissenting): Circuit tus now possess. which we do not With deference it is submitted that holding While our is depend the majority reaching was in error in the upon ent such decisions as Frontier merits of the American Civil Liberties Nole, Peck, McGowan, 10. See Aspects 179-82, Regulation, Economic of Television 205-07 (1973). 1352 ings upon exist which a basis for stand- It seems for review. petition Union’s ing may not, be however, examined does standing no has the ACLU apparent appellant’s eliminate duty to otherwise dispute the bring suit and it, establish nor justify our consideration FCC ACLU and between of the merits in order to determine the ripe review. for now quеstion. threshold Standing I. An proceedings examination of the is a that this case The reasons court date and interests of the ACLU is of merits a determination and its members reveals that the ACLU whether to decide necessary in order has no standing. proceeding This had its therefore the standing, and that is there origins in a Making Notice of Rule is- directly need not standing question sued by 18373, the FCC adopt- in Docket recent decision of The confronted. 6, ed November Fed.Reg. 1968. 33 17855 Seldin, 422 in Warth Supreme Court (1968). The initial notice was followed 2197, 343 45 L.Ed.2d 490, 95 S.Ct. by subsequent eventually notices all fo- approach. such an The (1975), precludes cusing on Docket making 18397.1 Rule “. Supreme there stated: Court is process not a necessarily set in motion on standing way depends the mer- in no by any grievance individualized or adver- par- plaintiff’s of contention that its sary confrontation, general but a illegal . . . .” ticular conduct need guidelines operate for system 500, At 95 Later, S.Ct. the or industry. purpose The stated reviewing “. . Court stated: . making rule procedure was to make accept all as true material courts must inquiry into the long-range development allegations and must complaint, explore: cable television and complaint in favor of the construe the “ obtain, . ‘. . best party.” 501, 422 U.S. at [H]ow complaining with the interest consistent The went at 2206. on to Act, standard of the Communications purposes of determining assume for developing commu- the full benefits of

standing that, dismiss, aon motion to public, technology for the nications before plaintiffs case it had immediate reference particular with government the local unit proved that potential and serv- technology intentionally unconstitutionally and had 143, 144 . . 36 FCC 2d ices . and ethnic excluded racial minorities community by restrictive zon- from housing and ing regula- Report other related massive Television Cable proceeded together Court then tions. The to de- and of the FCC Order plaintiff termine whether individual Television Re- of Cable Reconsideration majority’s pages avoidance includ- standing. port Order covers had and concurring dissenting issue in the instant case is views ing years More than 3 erroneous. Commissioners. dur- report order proceedings come to us time went into the this case data, solicit- gathered ing record. the FCC review a different evaluated containing allega- views, argument, complaint There ed heard and held alternatives studies, tions of fact which must be taken examined ¶ 2. ruling 2d at 327 purpose true a mo- 36 FCC final discussions. tion to and cable tel- plead- Representative dismiss. fact that no broadcast2 Proposed Proposed Making Making 18397-A, 1. Notice-of Rule Rule and Notice Docket Inquiry Fed.Reg. in Docket FCC2d FCC2d Fed.Reg. (1968); Proposed Notice of Making Broadcasters, Rule Fed.Reg. in Docket Co- 2. National Association (1968); Proposed Further Notice System, Broadcasting Rule Mak- Broad- National lumbia ing System Docket casting FCC2d network and individ- 34 Fed. other *9 Reg. (1969); Second Further Notice of ual interests. discriminatory, participants were will be offensive to view- interests evision3 suppliers, such Program expres- ers or will restrict full and fair hearings. views, Pictures MCA, Artists sion of or that Inc. and Allied the action of the as views, asserting copyright arbitrary capricious. Commission or It Corporation, with directly disagrees connected groups simply regulatory pol- not were also developed by making body, as ACLU icies industry such rule public no- pursuant particularly to the participants with how best to “maximize diversity program tice. television sources.” by the ACLU complaint is made No issue, Specifically, on the first that the right hearing to a that it was denied the regulate CATV access chan- FCC must its views opportunity or an submit nels as common carriers under Title II of was the case Office before the FCC as Act, 47 the Federal Communications of United Church of Communication seq., 201 et U.S.C. ACLU offers FCC, U.S.App.D.C. Christ v. arguments. four is that The first response F.2d 994 Its prohibition no regulations FCC contain question this court is before against operator’s arbitrary the cable reply page brief at stated in its discrimination in favor of some educa- follows: tional against authorities others. The Re- “The filed this Petition for ACLU why access, public reason the rule makes (1) attempt view in an to seek reversal governmental access and leased access declining decision of the Commission’s come, available on “first non- apply Title II of the Federal Com- disсriminatory” basis but does not use (dealing with Act common munications quoted language with reference to carriers) to the access ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bandwidth channels, appear. educational does not television, procure re- cable is, however, certainly There nothing in decision be- versal of the Commission’s language regulations of the entre- permitting low cable television to indicate that discrimination is invited preneurs channel one to use more than on the anticipated educational chan- or The im- programming. for their own fact, years adoption nels. In two after to the issues portance these promulgated of the rules the Commission long-stand- lay only in the ACLU’s of the Cable Television “Clarification ing Amendment concern for the First Rules,” (1974). The Com- 2d 176 FCC maximizing diversity interests in mission said: sources, but programming television “Our educational access channеl significant num- also in the fact that promote designed were rules 250,000 more than bers of the ACLU’s use of that channel educational au- cable televi- members are themselves community. thorities in the Much was subscribers. sion viewers and/or original claimed in the dockets which are, therefore, members These ACLU adoption led about to the of this rule directly adversely affected potential for educational channels specific regulations of which the developed. cable. Little has (Footnote review.” omit- ACLU seeks retrospect, limita- appears our ted.) educational access tion of one free us how the Petitioner does not tell Designating channel vast was wise. apply com- failure of the Commission capacity channel for education regulations to the mon carrier status and purpose.” see it lie fallоw serves access television has bandwidth of cable it or its members to will cause caused or “injured in fact.” It author- “aggrieved” concept

be “Our ‘educational programming charge that to restrict the use ity’ does not was not meant racially will local under the order this channel operators. Association and other 3. The National Cable Television CATV interests and *10 school, college, justify or duration to the invest- Any school board. sufficient private, produced or formal is university, or ment. But evidence informal, opportunity possible danger will ever should have the show that reality. Again on this channel. we talk in programming to air a become persons terms of policy, terms of not in Report In and Order the aggrieved. apply single exception The would said: Commission enterprises educational such commercial question regulations “The оf what schools, schools, as etc. beauty computer impose at this time is most we should (cid:127) “Any fide interest bona educational (cid:127) judgments Our on how difficult. access to the educational should have evolve at these access services will are ” 2d at channel. . . . 46 FCC that intuitive. We believe best policy proceed Thus the the Commission best is to is cer- course tainly phrased not terms of regulation discrimi- in order to obtain minimal nation; every therefore, is exactly emphasize, indication We experience. opposite. any event, petitioner regulatory pattern does that is' interim not proposed assert existing may fu- or we alter the nature —that ture against discrimination a school or gram gain necessary we in- as school authority. sights.” 2d FCC argued by The second reason suggests controversy Petitioner no actual compelling ACLU for сommon carrier that existing engendered. has rule operators status television is for cable The argument final support 205(a) that 47 provides for U.S.C. FCC need for common regulation carrier is charges by any “carriers” that nothing there is in the current rules 153(h). as defined 47 U.S.C. §§ to ensure that CATV owners will in- However, petitioner, argues FCC has crease capacity their channel to meet system expressly cable own- authorized growing demand as would be the case they ers to charge please what for the were the access regulated bandwidths as use of leased access channels. First of common carriers. petitioner’s But as all, language reliance of Title out, points brief Petitioner’s Brief at 30— (of II of the Communications Act 31, there is an expansion procedure to 205(a) part) which 47 a U.S.C. is increase the number of available chan- systems conclude that cable television nels. 47 76.251(a)(8). C.F.R. § Petition- misplaced. are carriers, The common is argues er simply that is not enough. provisions ap- “carriers” to which those Again, no actual or injury threatened 153(h), ply, U.S.C. §§ alleged. argument made is pe- that cable been determined to include televi- approach titioner’s is better. sion, majority points Again, as the out. however, argument is addressed to a Thus, the first submitted, e., issue i. very question. peti- one of abstract Not the order of the FCC is “inconsist- members, potential tioner aas viewer or ent with the status of cable television’s operator, alleged endangered access carrier,” bandwidth as a common charges might prevail under the Petitioner’s Brief at does not charges system FCC a order. under a case controversy or in the constitution- open competition be more could al sense under Article III. Warth v. Sel regulated less than monopoly under din, 498-501, system. petitioner has failed to assert entity it has argument suffered “some A third support common threatened or injury actual . . carrier . regulation” status is that a “no D., Linda R. S. Richard system does not ensure leased ac- 617, 93 S.Ct. L.Ed.2d 536 cess channels will be to inde- available or that any of its members are thus pendent af- programmers periods over *11 provides authority this ar- Seldin, ACLU for supra at 498- v. Warth fected. gument. suggested Petitioner has not 2197.4 499, 95 S.Ct. any operator engaging that is now the policy of challenged The second practice originating of broadcasts origina- authorizing was its order FCC so, plans more than one channel to or do than one des- cablecasting on more tion or, done, just that if how it would vio- 76.201(a) 47 ignated § channel. C.F.R. rights.5 anyone’s late first amendment first acknowl- Petitioners (repealed). The issuе on review has become moot in v. edge the United States that since repealed the has the mandato- FCC 649, 92 Corp., 406 U.S. Midwest Video ry origination rule about which com- (1972), upheld 1860, 390 32 L.Ed.2d S.Ct. plaint made,6 and the argu- broadcasting rule about origination the ment that prohibit- the FCC should they complain. Then petitioners origination broadcasting by ed CATV the rule is “cur- cautiously that admit owners on more than one station fails Commission,” by the rently under review for showing lack of of ordinary standing is re- that even if the rule but state criteria. operators leave the cable pealed it would engage origi- in to prerogative with the Ripeness II. broadcasting “at their discretion.” nation They ground Brief at 35-36. then An dismissing Petitioner’s additional for prerogative “con- that even this this case is evident ripeness conclude lack of Act of controversy. travenes both the Communications In Abbott Laborato- speech provision Gardner, of and the free ries v. 136, 387 148-49, 87 1507, 1515, at 36. The Id. (1967), First Amendment.” 8 681 L.Ed.2d addition, authority by Congress. how In the ab- it difficult to discern that act of In upon upon agency provisions to Article can relied sence of a cause of action based review position requirements petitioner’s minimum this should not be grant in Ill’s to those represent. petitioner claims to so. whom or those fact, open within the licenses are not on a not fall In members do The viewer anyone might completely United holding of who of free basis of Office Communication FCC, supra. develop a re- There choose an outlet. Section 76.11 Church Christ 76.11, charged Order, operator gional was 2d at C.F.R. television FCC discriminatory pro- racially system having engaged provides shall in that no cable television commercials, overemphasis operations gramming and add a televisiоn commence existing signal operations to its viewers. was offensive unless all of which broadcast opinion simply compliance a difference Here there is from the it receives a certificate of industry-wide goals. best to achieve rather detailed rules to how Commission. Thereafter application requirements of the state the provide applies to review 28 U.S.C. 2344 which objections public notice and for part provides that in the FCC final orders of 217-19, applications. 2d at C.F.R. 36 FCC may “Any party aggrieved final order 76.11-76.17. §§ in petition the order to review file a appeared Preliminary of the FCC views appeals . . . .” court of service, partial carrier common favor at least any explicat- “aggrieved” in Petitioner is not yet Com- ¶ 2d FCC though participated in ed sense even proceedings on the issue final decision mission withheld and undertook before the FCC study, 16. See ¶[ until further id. at regulation urge carrier that common there 5¶[ FCC 2d limited free than serve the would better gov- aggrieved” “party competition. rule reasoning confusion of its 5. To confound the apply erning cannot un- actions review of FCC petitioner argues, Petitioner’s Brief at disagrees the ACLU the bare fact that origination requirement less now re- the pealed regulation adoption free en- of a limited implemented with the FCC’s the national type regulation than the terprise rather maximizing policy diversi- communications sought creates type citing common carrier ty programming, Mid- sources of standing. grievance rules of within Corp., supra n. but west Video at 668 simply result leads it do so it engage Should operator’s prerogative a cable policy in rule that the ultimate decision making cablecasting origination does not multi-channel final deter- the courts is shifted to policy. serve this remaining decision mination rather than the delegated Fed.Reg. 6. 39 with the Commission Court, discussing ripe- Supreme they have been denied the full doctrine, range ness stated: program variety that common carrier preventing and a rule “. . pre- .its basic rationale is to origination broadcasting by CATV own- courts, through avoidance of vent the ers on more than one channel would en- premature adjudication, from entan- title them to. this context FCC’s gling disagree- themselves abstract broad over the discretion choice regu- policies, ments over administrative *12 latory forms would be readily more re- protect agencies judi- also to the from viewable in light the of the statute’s cial interference until an administra- strictures on common carriers and the tive decision has been formalized and аlleged first problems amendment its way by effects felt in a concrete multiple origination by CATV owners. the challenging parties. problem might It be that a case would clearly aspect, best seen in a twofold re- present a conflict that would illuminate quiring us the to evaluate both fitness competing the interests and considera- judicial of the issues for decision and tions. hardship parties of with- holding court consideration.” It is similarly very any difficult to see consequences,” “irremedial adverse Toi- Gardner, In Toilet Assn. v. Goods Assn., let Goods supra at S.Ct. 18 L.Ed.2d 697 1520, that would flow from this court’s applied the Court this standard to declining to regulations review the a formally promulgated regulation this time. The ACLU has not claimed Education, Health, Department any possible injuries permitted Welfare that Commission- actually occurred. ACLU member/view- suspend er of “certi- Drugs Food and ers do not nоw seeing suffer from not fication service” to manufacturers of programs that would otherwise have food who refused to additives allow been broadcast had the FCC chosen to government inspectors to enter their regulate differently. If their fear that plants. Without certification an additive this will be the case actually develops was deemed unsafe. Plaintiffs chal- they judicial can seek review then. lenged regulation in the district seeking declaratory injunctive court adverse consequence the claiming relief and might suffer from this court’s de- Secretary’s was in excess of authori- clining to regulations review the at this ty. The Court found the issue time would be that the CATV channel readily would be more resolved in the access industry develop will in such a proceeding context of an enforcement way that the interests the ACLU seeks generalized rather сhallenge than the be- vindicate—maximization ruled that the ad- fore it. It further sources programs and broadcasts— plaintiffs was “mini- verse effect on would seriously be undermined. It plaintiffs’ primary mal” because the ac- difficult to see this aas realistic threat. business, tivity, day-to-day would not The Commission is allocating a be regulation, affected and be- scarce resource that once divided will be through going cause the an en- harm of difficult to undo huge without disruptive forcement proceeding great. was not effects on industry par- and on other On the judicial facts of this case reso- ties. The channel capacity of a CATV lution of the authority Commission’s to system is for all intents and purposes an promulgate regulations the CATV in unlimited one. Should it be determined question greatly would be aided at some future time that a CATV owner particular facts of a dispute. If a CATV hаs refused potential access broad- provide owner refuses to channel access caster and impermissible that this is un- to an independent program producer at Act, der the CATV owner can be future, some time in the ACLU members provide ordered to more channels for who view programs CATV could use; claim leased access the costs to the CATV industry owner and would negligible re- meet such new

quirement. The court should decline regulations

review the because the con-

troversy yet ripe.7 CO., al., INC.,

J. P. & FOLEY et

Plaintiffs-Appellees, D.

Oliver VANDERBILT et

al., Defendants, Young Company,

Arthur &

Defendant-Appellant. 103,

No. Docket 75-7245.

United Appeals, Court of States Second Circuit.

Argued Sept. 4, 1975. 9,

Decided Oct. 1975. Jr., Hartfield, City New York

David (White Case, Thomas City, & York New Kiernan, Jeffrey Gregorian, C. Edmond Barist, Gropper, A. Allan York L. New defendant-appel- City, counsel), lant. Milberg, City

Lawrence New York (Milberg Weiss, City, New Mel- & York Weiss, Turetsky, vyn H. New I. Samuel City, counsel), plaintiffs-ap- York pellees. significance App.D.C. (1970) (dictum), There is fact that 424 F.2d denied, making case review of a rule rt. 400 U.S. 91 S.Ct. ce 27 procedure ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍adjudicatory Ichord, rather than L.Ed.2d See Davis v. ceeding. ripeness applies U.S.App.D.C. doctrine re- 442 F.2d 1219-20 J., (1970) (Levanthal, specific adjudica- view concurring). rules well as to FTC, Bristol-Meyers tions. Co. v.