[1] 47 C.F.R. ß 63.54-.58 (1993).

[2] US West, Inc. v. United States, No. 94-35775, 1994 WL 760379 (9th Cir. Dec. 30, 1994); Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181 (4th Cir. 1994); Ameritech Corp. v. United States, 867 F. Supp. 721 (N.D. Ill. 1994); BellSouth Corp. v. United States, 868 F. Supp. 1335 (N.D. Ala. 1994); NYNEX Corp. v. United States, No. 93-323-P-C (D. Me. Dec. 8, 1994); United States Tel. Ass'n v. United States, No. 1:94CV01961 (D.D.C. Feb. 13, 1995); Southwestern Bell Corp. v. United States, No. 3:94-CV-0193-D (N.D. Tex. Mar. 27, 1995). See also Pacific Telesis Group v. United States, No. 94-16064, 1994 WL 719063 (9th Cir. Dec. 30, 1994).

[3] See Stanley M. Besen & Robert W. Crandall, The Deregulation of Cable Television, 44 LAW & CONTEMP. PROBS. 77, 79 (1981).

[4] See id.; General Tel. Co. of the S.W. v. United States, 449 F.2d 846, 850-51 (5th Cir. 1971).

[5] 47 U.S.C. ß 214 (1988). The Communications Act requires that a common carrier wishing to extend its lines or construct new facilities must first receive a certificate from the FCC. 47 U.S.C. ß 214(a). Section 214 purportedly protects telephone ratepayers from paying for unnecessary telephone company facilities by providing that the FCC not allow any such unnecessary facilities to be built and included in the rate base.

[6] See General Tel. Co. of Cal., 13 F.C.C.2d 448, 460-61 (1968), aff'd, 413 F.2d 390 (D.C.Cir.), cert. denied, 396 U.S. 888 (1969).

[7] Applications of Tel. Companies for Section 214 Certificates for Channel Facilities, 34 Fed. Reg. 6290, 6292 (1969)(codified at 47 C.F.R. ß 63).

[8] Applications of Tel. Companies for Section 214 Certificates for Channel Facilities, 21 F.C.C.2d 307, 325 (1970)[hereinafter 1970 Order], aff'd sub nom. General Tel. Co. of S.W. v. United States, 449 F.2d 846 (5th Cir. 1971). The ban was then codified at 47 C.F.R. ß 64.601:

ß 64.601 Furnishing of Facilities for CATV Service to the Viewing Public.

(a) No telephone common carrier subject in whole or in part to the Communications Act of 1934, as amended, shall directly or indirectly through an affiliate owned or controlled by or under common control with said telephone communications common carrier, engage in the furnishing of CATV service to the viewing public in its telephone service area.

(b) No telephone common carrier subject in whole or in part to the Communications Act of 1934, as amended, shall provide channels of communications or pole line, conduit space or other rental arrangements to any entity which is directly or indirectly owned, operated or controlled by or under common control with such telephone communications common carrier, where such facilities or arrangements are to be used for or in connection with the provision of CATV service to the viewing public in the service area of the said telephone common carrier.

[9] 1970 Order, supra note 8, at 325.

[10] See Id. at 324. The FCC noted that CATV systems would have to use the same poles and conduits as the telephone companies since the communities would not usually permit the construction of duplicate sets of poles or lines. Id.

[11] Id. at 324.

[12] Id. The FCC pointed out that "numerous parties" had complained that the telephone companies had, in fact, already discriminated against unaffiliated CATV companies. Id.

[13] Id. at 325.

[14] Pub. L. No. 95-234, ß 6, 92 Stat. 35 (codified as amended at 47 U.S.C. ß 224 (1988)).

[15] 47 U.S.C. ß 224(b)(1). "The term 'pole attachment' means any attachment by a cable television system to a pole, duct, conduit, or right-of-way owned or controlled by a utility." 47 U.S.C. ß 224(a)(4).

[16] 47 C.F.R. ßß 1.1401-.1415 (1994).

[17] KENNETH GORDON ET.AL., FEDERAL COMMUNICATIONS COMMISSION, FCC POLICY ON CABLE OWNERSHIP, (1981) (Office of Plans and Policy Staff Report) [hereinafter 1981 Staff Report].

[18] Id. at 162.

[19] Id. at 175-177.

[20] Id. at 153.

[21] Pub. L. No. 98-549, 98 Stat. 2779 (codified at 47 U.S.C. ßß 521-611 (1988 & Supp. V 1993))(the "1984 Act").

[22] 47 U.S.C. ß 533(b)(1) (1991). The 1984 Act defines video programming as "programming provided by, or generally considered comparable to programming provided by, a television broadcast station." 47 U.S.C. ß 522(16) (1991). The FCC has interpreted video programming as programming comparable to that being provided by broadcast television stations in 1984. See Telephone Co.-Cable Television Cross-Ownership Rules, 7 F.C.C.R. 5781, 5820 (1992) (second report and order, recommendation to Congress and second further notice of proposed rulemaking)[hereinafter First Video Dialtone Order]; Telephone Co.-Cable Television Cross-Ownership Rules, 10 F.C.C.R. 244, 296-97 (1994)(memorandum opinion and order on reconsideration and third further notice of proposed rulemaking) [hereinafter Second Video Dialtone Order].

[23] See 47 C.F.R. ß 64.601 (1971).

[24] H.R. Rep. No. 934, 98th Cong., 2d Sess. 56 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4693. The Committee Report states that ß 533, as a whole, was intended "to prevent the development of local media monopolies and to encourage a diversity of ownership of communications outlets." Id., reprinted in 1984 U.S.C.C.A.N. 4692.

[25] Telephone Co.-Cable Television Cross-Ownership Rules, 3 F.C.C.R. 5849, 5864 (1988) (further notice of inquiry and notice of proposed rule making).

[26] Id.

[27] First Video Dialtone Order, supra note 22, at 5847. The video dialtone proceedings represent somewhat of a new concept in the delivery of video programming. Instead of providing "channel service" to a single cable operator in an area, a telephone company would provide a "basic platform," which, taken to its extreme, would amount to a delivery system much like the current telephone network over which video could be transmitted on a common carrier basis. See id. at n.3, 5797-98, 5811-5812. The FCC at least stated that it would try to avoid premature regulatory classifications, however, in order to allow new services to develop. See id. at 5812.

[28] Competitive entry into the local exchange and exchange access markets may render "the telephone company" an anachronism. True local competition, if achieved, would provide the ultimate safeguard against potential local exchange company ("LEC") abuses of monopoly power. To the extent that a LEC's local monopoly diminishes with successful entry of competitive access and competitive exchange service providers, any supposed ability to exclude independent cable operators decreases.

[29] First Video Dialtone Order, supra note 22, at 5848-49.

[30] See id. at 5849. The FCC affirmed this recommendation without additional consideration of the proposed safeguards in 1994. Second Video Dialtone Order, supra note 22, at 366-68.

[31] First Video Dialtone Order, supra note 22, at 5847-50.

[32] Id. at 5850. The FCC counselled against statutorily mandating this or other safeguards, recommending instead that the FCC have the discretion as to what safeguards should be imposed, and when, if ever, those safeguards should be removed. Id. at 5850-51.

[33] Id. at 5850-51. The FCC stated that a limit of 25%, which Congress was then considering, was reasonable. Id. at 5850-51 n.360.

[34] Id. at 5787; see also id. at 5823 ("We conclude that the public interest in preventing anticompetitive conduct will be served by requiring that our current safeguards designed to prevent discrimination and cross-subsidization by local telephone companies apply fully to the provision of services under our video dialtone policy.").

[35] See id. at 5850. The FCC had previously found that "the multichannel video marketplace is not as fully competitive as it could be because of the limited presence of alternative multichannel distribution technologies to provide consumer choice." Id. at 5796 (citing Competition, Rate Deregulation and the Commission's Policies Relating to the Provision of Cable Television Service, 5 F.C.C.R. 4962, 5002-07 (1990)(report)).

[36] Id. at 5841-42.

[37] Id. at 5842.

[38] Id. at 5843, 5849.

[39] Id. at 5847.

[40] See NTIA, U.S. DEP'T OF COMMERCE, THE NTIA INFRASTRUCTURE REPORT: TELECOMMUNICATIONS IN THE AGE OF INFORMATION 234 (1991).

[41] See NTIA, U.S. DEP'T OF COMMERCE, GLOBALIZATION OF THE MASS MEDIA 144 (1993).

[42] Pub. L. No. 102-385, 106 Stat. 1460 (1992) (codified in scattered sections of 47 U.S.C. ßß 521-611 (Supp. V 1993)).

[43] Congress has considered removing the ban on numerous occasions, in hearings as well as bills. See Chesapeake & Potomac Tel. Co. of Va. v. United States, 830 F. Supp. 909, 914-15 nn.9-10 (E.D. Va. 1993) (citing hearings and bills), aff'd, 42 F.3d 181 (4th Cir. 1994).

[44] S. Rep. No. 92, 102d Cong., 1st Sess. 17 (1991), reprinted in 1992 U.S.C.C.A.N. 1133, 1150.

[45] Chesapeake & Potomac, 830 F. Supp. 909.

[46] Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181 (4th Cir. 1994).

[47] US West, Inc. v. United States, No. 94-35775, 1994 WL 760379 (9th Cir. December 30, 1994).

[48] Ameritech Corp. v. United States, 867 F. Supp. 721 (N.D. Ill. 1994); BellSouth Corp. v. United States, 868 F. Supp. 1335 (N.D. Ala. 1994); NYNEX Corp. v. United States, No. 93-323-P-C (D. Me. Dec. 8, 1994); United States Tel. Ass'n v. United States, No. 1:94CV01961 (D.D.C. Feb. 13, 1995); Southwestern Bell Corp. v. United States, No. 3:94-CV-0193-D (N.D. Tex. Mar. 27, 1995). See also Pacific Telesis Group v. United States, No. 94-16064, 1994 WL 719063 (9th Cir. Dec. 30, 1994).

[49] Chesapeake & Potomac, 42 F.3d at 190; US West, 1994 WL 760379 at *4; BellSouth, 868 F. Supp. at 1338; Ameritech, 867 F. Supp. at 728. See also Turner Broadcasting Sys., Inc. v. United States, 114 S. Ct. 2445, 2456 (1994); Leathers v. Medlock, 499 U.S. 439, 444 (1991).

[50] See Turner, 114 S. Ct. at 2456 (quoting Los Angeles v. Preferred Communications, 476 U.S. 488, 494 (1986)). In Turner, cable operators appealed a grant of summary judgement that the must-carry provisions of the 1992 Cable Act, 47 U.S.C. ßß 534, 535 (Supp. V 1993), did not violate the First Amendment. The Supreme Court held that cable programming was speech that deserved constitutional protection, Turner, 114 S. Ct. at 2456, and that the must-carry provisions were subject to intermediate level scrutiny, id. at 2469. The Supreme Court then reversed the district court, finding that there were genuine issues of material fact as to whether or not local broadcasting was in jeopardy from cable competition, and whether there were less restrictive means available to achieve the asserted governmental interests. Id., 114 S. Ct. at 2472.

[51] Turner, 114 S. Ct. at 2456.

[52] See id. at 2456 ("Our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media."). Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and National Broadcasting Co. v. United States, 319 U.S. 190 (1943), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
The different treatment of the broadcast media is justified by the so-called scarcity rationale. The scarcity rationale posits that the state is allowed more invasive regulation of broadcast speech because there is a "inherent physical limitation on the number of speakers who may use the broadcast medium." Turner, 114 S. Ct. at 2457. As the Turner court points out, the scarcity rationale has been subject to much criticism. Id. at 2457 n.5 (citing cases and articles).

[53] Turner, 114 S. Ct. at 2457.

[54] Id. at 2457-58; Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 191 (4th Cir. 1994); US West, Inc. v. United States, No. 94-35775, 1994 WL 760379 at *5 (9th Cir. December 30, 1994); BellSouth Corp. v. United States, 868 F. Supp. 1335, 1339 (N.D. Ala. 1994); Ameritech Corp. v. United States, 867 F. Supp. 721, 730-31 (N.D. Ill. 1994).

[55] See Chesapeake & Potomac, 42 F.3d at 192; BellSouth, 868 F. Supp. at 1338; US West, Inc. v. United States, 855 F. Supp. 1184, 1190 (W.D. Wash. 1994), aff'd, No. 94-35775, 1994 WL 760379 (9th Cir. December 30, 1994). See also Ameritech, 867 F. Supp. at 730-31.

[56] US West, 855 F. Supp. at 1190.

[57] Chesapeake & Potomac, 42 F.3d at 193 n.17 (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-93 (1946); Associated Press v. NLRB, 301 U.S. 103, 132-33) (1937)).

[58] 326 U.S. 1 (1945).

[59] 18 U.S.C. ßß 1-7 (1988).

[60] Associated Press, 326 U.S. at 19-20. See also Lorain Journal Co. v. United States, 342 U.S. 143 155 (1951). It may not always be the case, however, that a law of general applicability will be subject to mere rational-basis review. In Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2458 (1994), the Court stated that "the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment." The Turner Court did not specify exactly when the enforcement of a generally applicable law would trigger heightened scrutiny.

[61] Turner, 114 S. Ct. at 2458 (citations omitted).

[62] US West, Inc. v. United States, No. 94-35775, 1994 WL 760379, at *5 (9th Cir. Dec. 30, 1994); Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 192 (4th Cir. 1994); Ameritech Corp. v. United States, 867 F. Supp. 721, 731 (N.D. Ill. 1994). See also BellSouth Corp. v. United States, 868 F. Supp. 1335 (N.D. Ala. 1994) (rejecting rational-basis review because the scarcity rationale was inapplicable).

[63] Turner, 114 S. Ct. at 2458.

[64] See, e.g., US WEST, 1994 WL 760379, at *5; BellSouth, 868 F. Supp. at 1339; Ameritech, 867 F. Supp. at 731; Chesapeake & Potomac Tel. Co. of Va. v. United States, 830 F. Supp. 909, 922 n.20 (E.D. Va. 1993), aff'd, 42 F.3d 181 (4th Cir. 1994).

[65] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

[66] See Turner, 114 S. Ct. at 2458-59; Texas v. Johnson, 491 U.S. 397, 412 (1989); Burson v. Freeman, 112 S. Ct. 1846, 1850-51 (1992). See also R.A.V. v. St. Paul, 112 S. Ct. 2538, 2542 (1992)("Content-based regulations are presumptively invalid.").

[67] US West, Inc. v. United States, No. 94-35775, 1994 WL 760379, at *5 (9th Cir. Dec. 30, 1994); Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 194 (4th Cir. 1994).

[68] In Chesapeake & Potomac Tel. Co. of Va. v. United States, 830 F. Supp. 909 (E.D. Va. 1993), aff'd, 42 F.3d 181 (4th Cir. 1994), the district court found that the determination of whether a particular message qualifies as video programming, rather than some other form of programming, required reference to the content of the programming, and therefore that the ban was content-based. Id. at 922-23. The court of appeals disagreed, stating "that a regulation requires some examination of the speech upon which it has impact does not make the regulation content-based." Chesapeake & Potomac, 42 F.3d at 193. The court of appeals found that the telco-cable cross-ownership ban was "not content-based because, in determining whether 'video programming' is being transmitted, 'the Government does not need to evaluate the nature of the message being imparted.'" Id. at 194-95 (quoting Regan v. Time, 468 U.S. 641, 656 (1984)).

[69] See Chesapeake & Potomac, 42 F.3d at 195 (quoting Turner, 114 S. Ct. at 2467). The fact that the affected group of speakers turns out to be small does not necessarily mean that strict scrutiny is required. See id. at 197; US West, 1994 WL 760379, at *6.

[70] See Turner, 114 S. Ct. at 2462-63. In addition to emphasizing its belief that the must-carry provisions were not intended to favor the content of broadcasters' speech, the court minimized the extent to which the FCC is permitted to regulate the content of broadcast programming. Id. at 2462-64.

[71] See Turner, 114 S. Ct. at 2476-79 (O'Connor, J., dissenting in part).

[72] Turner, 114 S. Ct. at 2481 (Ginsburg, J., dissenting in part).

[73] Turner, 114 S. Ct. at 2462.

[74] Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987). See also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); R.A.V. v. St. Paul, 112 S. Ct. 2538, 2544 (1992).

[75] See, e.g., US West, Inc. v. United States, No. 94-35775, 1994 WL 760379, at *6 (9th Cir. Dec. 30, 1994); Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 197 (4th Cir. 1994); BellSouth Corp. v. United States, 868 F. Supp. 1335, 1339 (N.D. Ala. 1994).

[76] Turner, 114 S. Ct. at 2458 (citing Arkansas Writers' Project, 481 U.S. at 228).

[77] See US West, 1994 WL 760379, at *7.

[78] Turner, 114 S. Ct. at 2469 (citing Ward, 491 U.S. at 799; United States v. O'Brien, 391 U.S. 367, 377 (1968)); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).

[79] Clark, 468 U.S. at 291, 293.

[80] Turner, 114 S. Ct. at 2469 (quoting O'Brien, 391 U.S. at 377).

[81] See Ward, 491 U.S. at 798. See Edenfield v. Fane, 113 S. Ct. 1792, 1800 (1993).

[82] See supra notes 10-13 and accompanying text.

[83] See supra notes 19,20 and accompanying text.

[84] See, e.g., US West, 1994 WL 760379, at *10; Chesapeake & Potomac, 42 F.3d at 188. 47 C.F.R. ß 63.57 allows a telephone company to provide "channel service" (video distribution) to independent cable companies so long as the telephone company can demonstrate that it made pole attachment rights available to the cable system at reasonable, nondiscriminatory charges and terms. 47 C.F.R. ß 63.57 (1985). See also Indiana Telephone Co., Inc. v. F.C.C., 824 F.2d 1205, 1209 (D.C. Cir. 1987)(cross-ownership rule does not prohibit a telephone company from owning channel distribution facilities and using them "to transmit television signals for independent cable operators.").

[85] See, e.g., Chesapeake & Potomac, 42 F.3d. at 199 ("There can be no question, then, but that the interests Section 533(b) serves are 'significant.'"); Ameritech, 867 F.Supp. at 734. The US West court could not discern any Congressional intent, but found that the interests suggested by the FCC and DOJ were important. US West, 1994 WL 760379, at *9.

[86] See First Video Dialtone Order, supra note 22 at 5787.

[87] See US West, 1994 WL 760379, at *10.

[88] Id.

[89] Chesapeake & Potomac, 42 F.3d at 200 (quoting Chesapeake & Potomac Tel. Co. of Va. v. United States, 830 F. Supp. 909, 930 n.9). See also Ameritech, 867 F. Supp. at 736 n.8 (following Chesapeake & Potomac, 830 F. Supp. 721, regarding pole attachments).

[90] BellSouth Corp. v. United States, 868 F. Supp. 1335, 1343 (N.D. Ill. 1994) (citation omitted).

[91] Id.

[92] See US West, Inc. v. United States, No. 94-35775, 1994 WL 760379, at *11 (9th Cir. Dec. 30, 1994); Chesapeake & Potomac, 42 F.3d at 200.

[93] BellSouth, 868 F. Supp. at 1342.

[94] Id. (citing First Video Dialtone Order, supra note 22, at 5828).

[95] Id. at 1342-43. These less restrictive alternatives are discussed supra  11-13 and note 27. The BellSouth court further suggested the possibility that even less restrictive alternatives to these might be found. The court did not find that any of these regulations were sustainable under an intermediate scrutiny analysis. Rather the court merely noted that there were substantially less restrictive alternatives.

[96] See Ameritech Corp. v. United States, 867 F. Supp. 721, 734-36 (N.D. Ill. 1994). The statements by the FCC and DOT, as well as by the NTIA, are discussed supra  14.

[97] See US West, 1994 WL 760379, at *10; BellSouth, 868 F. Supp. at 1341.

[98] See BellSouth, 868 F. Supp. at 1341.

[99] See, e.g., BellSouth, 868 F.Supp. at 1341 n.9; Ameritech, 867 F. Supp. at 734-35.

[100] See US West, 1994 WL 760379, at *11; BellSouth, 868 F. Supp. at 1342. See also Ameritech, 867 F.Supp. at 736.

[101] See BellSouth, 868 F. Supp. at 1341.

[102] U S West, 1994 WL 760379, at *14; Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d at 202; BellSouth, 868 F.Supp. at 1344; Ameritech, 867 F.Supp. at 736.

[103] See US West, 1994 WL 760379, at *14; Chesapeake & Potomac, 42 F.3d at 185; BellSouth 868 F.Supp. at 1344; Ameritech, 867 F.Supp. at 737. See also NYNEX Corp. v. United States, No. 93-323-P-C (D. Me. Dec. 8 1994), United States Tel. Assoc. v. United States, No. 1:94CV01961 (D.D.C. Feb. 13, 1995).

[104] The companies that are parties to suits in which an injunction has been issued include Bell Atlantic, US West, BellSouth, Ameritech, NYNEX, GTE, SBC Communications (formerly Southwestern Bell) and most members of the United States Telephone Association ("USTA"). SNET is the major exception, having not participated in the USTA suit. See cases cited supra note 2.

[105] Comm'n Announces Enforcement Policy Regarding Tel. Co. Ownership of Cable Television Sys., DA 95-520 (FCC Apr. 3, 1995)(public notice).

[106] A number of the decisions discussed in this article are pending further review. While it does not appear likely, subsequent Supreme Court or appellate decisions could, of course, reverse the decisions.

[107] Tel. Co.-Cable Television Cross-Ownership Rules 60 Fed. Reg. 8996 (1995) (to be codified at 47 C.F.R. pt. 63) (proposed Feb. 16, 1995)(fourth further notice of proposed rulemaking) [hereinafter Fourth Further NPRM].

[108] The FCC continues to require telephone companies to obtain ß 214 approval, see supra note 4 and accompanying text, prior to constructing or acquiring cable or video dialtone systems in their service areas. Comm'n Announces Enforcement Policy Regarding Tel. Co. Ownership of Cable Television Sys., DA 95-520 (FCC Apr. 3, 1995)(public notice). The FCC also states that any ß 214 certificates "granted will be conditioned on the outcome of the [Fourth Further NPRM]." Id.

[109] Fourth Further NPRM, supra note 107, at 8997.

[110] Id. at 8998-9000.

[111] Id. at 8999.

[112] Id. at 9000.

[113] Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 202 n.34 (4th Cir. 1994).

[114] The two-wire policy may not, itself, be a substantial government interest. Instead, the governmental interest may be more broadly stated as an interest in encouraging multiple providers of video programming. Stating the governmental interest in this manner greatly increases the number of potentially less restrictive alternatives.

[115] Confidential treatment of CPNI is less obviously a restriction on the telephone company's speech than non-discriminatory access. While it may force the telephone company to forgo revenues from joint marketing operations (while no similar restriction adheres to all providers of video programming), the requirement does not seem overly burdensome.

[116] See supra note 52 and accompanying text.