TURNER BROADCASTING SYSTEM, INC., et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants. DANIELS CABLEVISION, INC., Plaintiff, v. UNITED STATES of America, Defendant. TIME WARNER ENTERTAINMENT COMPANY, L.P., Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants. NATIONAL CABLE TELEVISION ASSOCIATION, INC., Plaintiff, v. UNITED STATES of America, et al., Defendants. DISCOVERY COMMUNICATIONS, INC., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
Civ. A. Nos. 92-2247, 92-2292, 92-2494, 92-2495, 92-2558
United States District Court, District of Columbia.
Dec. 23, 1992.
810 F. Supp. 1308
Dissenting Opinion of Judge Jackson Jan. 5, 1993.
For the foregoing reasons, therefore, it is, this 22nd day of December, 1992,
ORDERED, that plaintiffs’ motions for preliminary injunctions seeking to enjoin the defendants from enforcing or implementing sections 3, 7(b)(4)(B), 7(c), 9, 10(d), 11, 15, 19, 24, and 25 of the
FURTHER ORDERED, that the parties shall file dispositive motions, and such briefs as may be necessary to supplement the record here on issues relating to the constitutionality of sections of the Cable Acts of 1992 and 1984 other than Sections 4 and 5 of the 1992 Cable Act, in accordance with the Order of December 9, 1992, establishing a briefing schedule with respect to Sections 4 and 5; and it is
FURTHER ORDERED, that oral argument with respect to the constitutionality of such other sections shall be heard by this single-judge district court in conjunction with oral argument before the three-judge district court on Sections 4 and 5 on March 4, 1993.
Bruce D. Sokler, Peter Kimm, Jr., Gregory A. Lewis, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Bertram W. Carp, Turner Broadcasting System, Inc., Washington, DC, Mary Ann Zimmer, Arts & Entertainment Network, New York City, Debbie Lee, Black Entertainment Televi-
John P. Cole, Jr., John D. Seiver, Cole, Raywid & Braverman, Washington, DC, for Daniel Cablevision.
Brian Conboy, Wilkie Farr & Gallagher, Washington, DC, Robert D. Joffe, Stuart W. Gold, Stephen S. Madsen, Cravath, Swaine & Moore, New York City, for Time Warner.
H. Bartow Farr, III, Joel I. Klein, Klein, Farr, Smith & Taranto, Daniel L. Brenner, Michael S. Schooler, Diane B. Burstein, National Cable Television Association, Inc., Washington, DC, for National Cable Television.
Allan A. Tuttle, Garret G. Rasmussen, Kenneth L. Glazer, G. Kendrick MacDowell, Patton, Boggs & Blow, John R. Tyler, Theodore C. Hirt, U.S. Dept. of Justice, Civil Div., Washington, DC, for Discovery.
Rex E. Lee, Robert A. Beizer, Carter G. Phillips, Mark D. Hopson, Sidely & Austin, James J. Popham, Association of Independent Television Stations, Inc., Washington, DC, for Association of Independent Television Stations, Inc.
Bruce J. Ennis, Jr., David W. Ogden, Donald B. Verrilli, Jr., Ann M. Kappler, Jenner & Block, Henry L. Baumann, Benjamin F.P. Ivins, Jack N. Goodman, National Association of Broadcasters, Washington, DC, for Nat. Ass‘n of Broadcasters.
Andrew Jay Schwartzman, Gigi B. Sohn, Media Access Project, Washington, DC, for Consumer Federation of America, National Council of Senior Citizens, International Association of Machinists and Aerospace Workers, AFL-CIO, United Church of Christ.
Henry A. Solomon, Theodore D. Kramer, Haley, Bader & Potts, Arlington, VA, for Community Broadcasters Ass‘n.
Roy F. Perkins, Herndon, VA, for Triplett & Associates.
Robert T. Perry, Brooklyn, NY, Paul Broyles, International Broadcasting Network, Houston, TX, for Local Community Broadcasters.
Steven J. Hyman, Robert I. Freedman, Janet C. Neschis, Paul H. Levinson, Leavy, Rosenweig & Hyman, New York City, Jonathan L. Wiener, Goldberg, Godles, Wiener & Wright, Washington, DC, for National Interfaith Cable Coalition.
Robert Alan Garrett, Arnold & Porter, Washington, DC, for Local Governments (National League of Cities, et al.
John B. Richards, Shelia A. Millar, Arthur S. Garrett III, Keller and Heckman, Washington, DC, for National Rural Telecommunications Co-op.
Theodore D. Kramer, Haley, Bader & Potts, Arlington, VA, for TV 14, Inc.
Philip R. Hochberg, James E. Meyers, Baraff, Koerner, Olender & Hochberg, P.C., Washington, DC, for Encore Media Corp.
Teresa D. Baer, Miller & Holbrooke, Washington, DC, Edward P. Kearse, John L. Grow, New York State Com‘n on Cable Television, Albany, NY, for National Ass‘n of State Cable Agencies.
Nicholas W. Allard, Paul J. Sinderbrand, Keck, Mahin & Cate, Washington, DC, for Wireless Cable Ass‘n Intern., Inc.
Colby M. May, May & Dunne, Chartered, Washington, DC, for Trinity Christian Center, etc.
James Johnston, Washington, DC, amicus curiae, for Atlanta Interfaith Broadcasters.
Larraine S. Holbrooke, Tillman L. Lay, Joseph Van Eaton, Miller & Hollbrooke, James N. Horwood, Spiegel & McDiarmid, Washington, DC, James Hahn, Pedro B. Echeverria, City of Los Angeles, Los Angeles, CA, amicus curiae, for City of Los Angeles, etc.
Norman M Sinel, Robert Alan Garrett, Preeta D. Bansal, Arnold & Porter, Washington, DC, amicus curiae, for City of New York.
Alan K. Weitz, Ginsburg Feldman & Bress, Washington, DC, Andrew J. Levander, Shari L. Steinberg, Adam B. Rowland, Michael Cohen, New York City, amicus curiae, for Liberty Cable Co.
Before WILLIAMS, Circuit Judge, and SPORKIN and JACKSON, District Judges.
STEPHEN F. WILLIAMS, Circuit Judge.
Plaintiffs are cable television programmers and system operators who challenge the constitutionality of various sections of the
* * * * * *
The 1992 Cable Act contains 28 sections, of which perhaps 25 may be viewed as substantive, out of which some 14 are at-
Section 23 of the Act contains explicit provision for review of constitutional claims against §§ 4 and 5, amending § 635 of the
(1) Notwithstanding any other provision of law, any civil action challenging the constitutionality of section 614 [§ 4] or 615 [§ 5] of this Act or any provision thereof shall be heard by a district court of three judges convened pursuant to the provisions of
section 2284 of title 28, United States Code .(2) Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under paragraph (1) holding section 614 [§ 4] or 615 [§ 5] of this Act or any provision thereof unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.
The focus of § 23 is clearly on judicial review of §§ 4 and 5, which require cable companies to carry the signals of broadcast stations and are known as the “must carry” provisions. Original jurisdiction of the three-judge court is tied to constitutional challenges to those sections, as is review as a matter of right in the Supreme Court.
There are two lines of argument as to why the three-judge court should exercise jurisdiction over constitutional challenges to sections other than the must-carry provisions. First, a literal reading of § 23 provides a three-judge court for “any civil action” challenging § 4 or § 5, so that three-judge treatment follows automatically for whatever issues the plaintiffs (or, for that matter, any other party) may manage to bundle within such an action under the generous provisions of the Federal Rules of Civil Procedure as to joinder of claims. Second, plaintiffs assert that we have discretion to take supplemental jurisdiction over claims related to the §§ 4 and 5 challenges, and that prudential considerations argue for doing so. We address the two theories in that order.
1. The meaning of § 23:
The literal reading of § 23 is supported by the traditional assumption that Congress has selected every word with exquisite care: if it had wished to restrict our jurisdiction to §§ 4 and 5, it could have referred to “any claim” challenging the must-carry provisions, rather than to “any civil action” bringing such a challenge. In assessing this argument, we bear in mind that a parallel one applies to subsection (2), which provides for appeal of right to the Supreme Court for any “interlocutory or final judgment, decree, or order [in a three-judge action under subsection (1)] holding [§ 4 or § 5] unconstitutional“. Thus, depending upon how this court chose to package its decision on the other issues with its decision on §§ 4 and 5, the literal reading of § 23 could send a slew of marginally related claims straight into the mandatory jurisdiction of the Supreme Court.
Moreover, the omnibus reading of § 23 inflicts considerable burdens on the federal judicial system. Having three judges rule on every single procedural or substantive issue that may arise triples the normal cost of a case for the district court. In fact, Congress has in recent years shrunk the jurisdiction of three-judge courts drastically,
2. Discretionary supplemental jurisdiction:
The second argument in favor of the three-judge court‘s jurisdiction over all of the pending claims is that we have the statutory authority to hear them and should do so. Plaintiffs invoke
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Section 1367 may not relate to our problem. It appears to address the question of the jurisdiction of “district courts” generally, allowing such courts “supplemental jurisdiction” over other claims—ones over which federal district courts would otherwise lack jurisdiction. But here there is no dispute about the jurisdiction of federal district courts over plaintiffs’ numerous federal constitutional attacks on provisions
Where applicable, § 1367 provides supplemental jurisdiction over claims that “are so related to [the claims entitled to original jurisdiction] that they form part of the same case or controversy under Article III of the United States Constitution“. This incorporates the test of United Mine Workers v. Gibbs, 383 U.S. 715 (1966), explaining that, to constitute a single “constitutional ‘case‘“, id. at 725, different claims must “derive from a common nucleus of operative fact” and be such that, “considered without regard to their federal or state character [the problem posed in Gibbs], [the] plaintiff‘s claims are such that he would ordinarily be expected to try them all in one judicial proceeding“, id. See also Wright, Miller and Cooper, Federal Practice and Procedure, vol. 13B, 1992 Pocket Part at 38 (noting congressional intent to push the supplemental jurisdiction to the outer limit permitted by the Constitution); Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991) (applying Gibbs test to case under § 1367).
The facial constitutional challenges that the plaintiffs bring before us are linked to the §§ 4 and 5 claims in three senses: (1) they relate to provisions of the same statute; (2) they rest almost entirely on the First Amendment; and (3) there are, not surprisingly, some modest relationships between §§ 4 and 5 and the other sections under attack. Plaintiffs point to no authority suggesting that such links, alone or in the aggregate, could satisfy the Gibbs test.
The fact of a single statute clearly means little. The Cable Act occupies 45 pages in the statute books. See
Plaintiffs thus rest heavily on the unifying theme of the First Amendment. They argue that because the Supreme Court has not specifically identified cable television either with the First Amendment approach that it has taken to over-the-air broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), or with that applied to the print media, see, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the litigation will ultimately resolve that issue and thus can be said to involve the same case. Indeed, the Court‘s only direct statement on the subject so far has been the rather vague one that cable television communications “plainly implicate First Amendment interests“. Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986).
There are several difficulties with plaintiffs’ theory. First, while the overlap of an important legal issue is in some circumstances grounds for intervention, see, e.g.,
Second, plaintiffs err in supposing that each communicative medium is governed by a single First Amendment standard. In fact, standards vary within a single medium depending on the character of the disputed restriction. For example, in reviewing content-based restrictions on over-the-air broadcasting, see, e.g., FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court has plainly engaged in more searching scrutiny than in considering more structural regulations of the industry such as the “cross-ownership” rules, see, e.g., FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978). Similar variations of course exist for limitations on the print media.
The claims here seem likely to trigger a range of standards. For example, plaintiffs challenge § 10 of the Act, which among other things denies cable operators immunity from liability for programming “that involves obscene material“. Whatever the merits of the claim, the section is directed to content and subject matter—though not to viewpoint—and raises different problems from those of non-content provisions. See, e.g., Geoffrey R. Stone, Content Regulation and the First Amendment, 25 William & Mary L. Rev. 189 (1983) (discussing Supreme Court‘s ambiguous treatment of subject-matter restrictions).
By contrast, the attack on § 6, requiring cable operators to obtain consent from commercial broadcasters for retransmission of their programs (unless the broadcaster has elected to use the must-carry provisions), turns—as framed by the plaintiffs themselves—on the relation of the provision to copyright provisions and concepts. Plaintiff Daniels Cablevision, Inc.‘s Memorandum in Support of Summary Judgment at 33-37. Apart from involving the cable industry and the First Amendment, the claim seems as different from the attack on § 10‘s obscenity clause as can be imagined. Thus, while special characteristics of the cable television industry may give rise to some general approach, as has proved true for over-the-air TV, that approach will supply only one element—and likely a relatively small element—of the reasoning needed for the disposition of each claim.
The third connecting characteristic—the practical links between §§ 4 and 5 and the other attacked provisions—are not so close as to justify grouping the provisions as a “common nucleus of operative facts“. Plaintiffs offer some interconnections, but only tenuous ones. For example, they point out that § 3, which prescribes rate regulation, defines a “basic package” of services that are to be the subject of that regulation and includes the signals required to be carried under §§ 4 and 5 within the definition. See
Finally, even if § 1367 were applicable in the three-judge context at all, and even if we believed that the challenges to sections other than §§ 4 and 5 fell within its “same case or controversy” requirement,
Although we thus sever the constitutional challenges to sections other than §§ 4 and 5, we do not address plaintiffs’ argument that, if we should find all or part of §§ 4 and 5 unconstitutional, the remedy should include invalidation of other sections of the Act, notably § 6. As we have said, § 6 provides (with some exceptions) that cable operators may not “retransmit” the signal of a commercial broadcaster without its consent, unless the broadcaster has elected to use the must-carry provisions of § 4. The remedial argument runs, in essence, that Congress would not have wanted § 6 to stand alone, without §§ 4 and 5. “Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent....” Regan v. Time, Inc., 468 U.S. 641, 653 (1984); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). If we should in fact hold §§ 4 and 5 unconstitutional, we will have to evaluate plaintiffs’ theory against the Supreme Court‘s severability standard in deciding on the proper relief. But that is no reason to sweep within this lawsuit the independent constitutional attack on § 6, which, as we have seen, is said by plaintiffs to turn on concepts akin to copyright or on the section‘s interaction with copyright provisions.
* * * * * *
We sever from this lawsuit all claims other than those challenging the constitutionality of § 4 or § 5 and relinquish those claims to the United States district court for the District of Columbia apart from this three-judge panel.
I concur in the result. I believe that whether a three judge statutory court established under
I concur with the majority‘s decision in this case to exercise this discretion by declining to consider the various pendent claims put forth by certain of the parties. I believe it is prudent for this Court to focus only on the Section 4 and 5 challenges to the Cable Act and to refer the balance of the constitutional and other claims to a traditional single judge court.
JACKSON, District Judge, dissenting.
I regret that I am unable to concur in Circuit Judge Williams’ opinion of December 23, 1992, limiting the jurisdiction of the three-judge district court to Sections 4 and 5 of the
The Supreme Court has instructed that “the starting point for interpreting a statute is the language of the statute itself,” and, “absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm‘n v. GTE Sylvania, 447 U.S. 102, 109 (1980).
Section 23 of the
KMART CORPORATION, Plaintiff, v. FIRST HARTFORD REALTY CORPORATION, Neil H. Ellis, individually and d/b/a “Putnam Parkade, Inc.” and Wal-Mart Stores, Inc., Defendants.
Civ. A. No. 2:92 CV00646 (AVC).
United States District Court, D. Connecticut.
Jan. 4, 1993.