[1] See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986), cert. denied, 114 S. Ct. 2738 (1994); Chicago Cable Communications v. Chicago Cable Comm'n, 879 F.2d 1540 (7th Cir. 1989), cert. denied, 493 U.S. 1044 (1990).
[2] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).
[3] 47 U.S.C. ßß 534, 535 (Supp. IV 1992).
[4] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir. 1986); Century Fed., Inc. v. City of Palo Alto, 710 F. Supp. 1552, appeal dismissed, 484 U.S. 1053 (1988).
[5] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). See Community Communications Co. v. City of Boulder, 660 F.2d 1370 (10th Cir. 1981); Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982).
[6] Turner, 1114 S. Ct. at 2456-57.
[7] United States v. O'Brien, 391 U.S. 367 (1968).
[8] Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 557 (1975); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).
[9] Harry Kalven, Jr., Broadcasting, Public Policy and the First Amendment, 10 J. LAW AND ECON. 15, 38 (1967).
[10] Brief for Appellant National Cable Television Association, Inc., at 18, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994)(No. 93-44).
[11] Brief for Federal Appellees at 13, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994)(No. 93-44).
[12] 47 U.S.C. ß 151 et seq. (Supp. IV 1992).
[13] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390-91 (1969).
[14] See 47 U.S.C. ßß 307(d), 315(a) (1988).
[15] See Deregulation of Radio, 84 F.C.C.2d 968, 977-83 (1981)(report and order); Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 F.C.C.2d 1076, 1077, 1091-92 (1984)(report and order).
[16] 47 U.S.C. ßß 315(a), 312(a)(7) (1976).
[17] 47 U.S.C. ß 303b(a)(2) (Supp. IV 1992).
[18] Columbia Broadcasting Sys., Inc. v. Democratic National Comm., 412 U.S. 94, 117 (1973). The Court stated that:
A broadcast licensee has a large measure of journalistic freedom but not as large as that exercised by a newspaper. A licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a "public trustee." To perform its statutory duties, the Commission must oversee without censoring . . . .Id. at 117-18.
[19] The fairness doctrine required broadcasters to devote a reasonable amount of time to airing controversial issues of public importance, and to do so fairly by affording reasonable opportunity for the discussion of conflicting viewpoints. Red Lion, 395 U.S. at 377. The FCC has since eliminated the doctrine but has retained the personal attack and political editorializing regulations involved in Red Lion. See Syracuse Peace Council v. Television Station WTVH, 2 F.C.C.R. 5043 (1987), enforced, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 717 (1989).
[20] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
[21] Id. at 390.
[22] Id.
[23] Id. at 393.
[24] Id.
[25] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456-57 (1994); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
[26] See National Broadcasting Co. v. United States, 319 U.S. 190, 226-27 (1943). The FCC, however, cannot censor broadcasters and has soundly "eschewed direct federal control over discrete programming decisions . . ." by broadcasters, a step that would "raise[] 'serious First Amendment issues.'" Metro Broadcasting, Inc. v. FCC, 497 U.S. at 585; see also FCC v. League of Women Voters, 468 U.S. 364 (1984).
[27] See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Buckley v. Valeo, 424 U.S. 1, 49 (1976) (per curiam).
[28] See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
[29] Id. at 256-57.
[30] Id. at 258.
[31] For analysis of the differing results, see Henry Geller & Donna Lampert, Cable, Content Regulation, and the First Amendment, 32 CATH. U. L. REV. 603, 617-18 (1983); see also Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1 (1976).
[32] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
[33] Id. at 393.
[34] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).
[35] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2478 (1974)(O'Connor, J., dissenting).
[36] See Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990).
[37] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Furthermore, the Court has determined that "the First Amendment's hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic." Burson v. Freeman, 112 S. Ct. 1846, 1850 (1992).
[38] Turner, 114 S. Ct. at 2458-59.
[39] Id. at 2467.
[40] United States v. O'Brien, 391 U.S. 367, 377 (1968).
[41] Ward, 491 U.S. at 799.
[42] Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
[43] Turner, 114 S. Ct. at 2471.
[44] Id.
[45] Brief for the Federal Appellees, at 13, 28, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994)(No.93-44).
[46] See Turner, 114 S. Ct. at 2456-57.
[47] 47 U.S.C. ß 534(b)(1)(B) (Supp. IV 1992).
[48] See 47 U.S.C. ß 535(b)(2)(A), (b)(3)(a), (b)(3)(D)(Supp. IV 1992).
[49] Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1, 10 (D.D.C. 1993), vacated, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).
[50] Brief for Federal Appellees, at 13, 14, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994)(No. 93-44).
[51] Id.
[52] Id. at 28-29.
[53] Id. This argument is similar to the position taken by the 10th Circuit Court of Appeals in Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1377-78 (10th Cir. 1981). In Boulder, the court noted that when cables are laid "[s]ome form of permission from the government must, by necessity, precede such disruptive use of the public domain" and that there is "a sheer limit physically on the number of cables that can use the existing poles or underground conduits or the streets." Id. at 1378; see also Chicago Cable Communications v. Chicago Cable Comm'n, 879 F.2d 1540, 1548-51 (7th Cir. 1989), cert. denied, 493 U.S. 1044 (1990). These courts found that regulation similar to that found in the broadcast area is permissible in cable to ensure diversity of programming and sources.
[54] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2457 (1994).
[55] Id.
[56] Id. at 2457-58.
[57] Associated Press v. United States, 326 U.S. 1 (1945).
[58] Lorain Journal Co. v. United States, 342 U.S. 143 (1951).
[59] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2458 (1994).
[60] Id. at 2458.
[61]
The term "market dysfunction" is rather vague and is determined within
the context of particular fact situations. The cable television market
is clearly dysfunctional because cable is the way into the home for over
60% of the television audience, and as a monopoly gatekeeper cable has
the power to disconnect the broadcast station from a large portion of its
potential audience. See Turner, 114 S. Ct. at 2454.
Newspapers can also enjoy monopoly positions. The government
would presumably argue that there is no market dysfunction in print, however,
because a monopoly newspaper is not a gatekeeper preventing other print
outlets from reaching the public. There is always the possibility of competing
newspapers, leaflets, flyers, magazines and other print outlets, as well
as the electronic media.
The same thing is true, however, in radio broadcasting.
For example, there are over 60 stations in the Chicago area, and in all
broadcast markets there is not only the possibility of radio cassettes
being distributed, but also the availability of other electronic media
and the print media.
The fact is that Tornillo was attacked in a powerful,
monopoly newspaper, and the most effective reply was in that newspaper.
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 249 (1974). The
reason for the different treatment must lie in the government licensing
scheme.
[62] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1967).
[63] See cases cited supra note 5.
[64] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2466 (1994).
[65] Id. at 2461.
[66] Id.
[67] Id. at 2468. The author, joined by several other disinterested persons, strongly urged Congress to adopt a content-neutral approach of "may carry, must-carry all." Letter from Henry Geller, Communications Fellow, the Markle Foundation, to John D. Dingell, Then Chairman, House Energy and Commerce Committee and Edward J. Markey, Then Chairman, House Energy and Commerce Telecommunications and Finance Subcommittee, 1-2 (March 17, 1992)(on file with the author). Cable has long urged that in its carriage of local signals it is simply acting as a master antenna for the community. See Cable Television Regulation: Hearings on H.R. 1303 and H.R. 2546, Before the Subcomm. on Telecommunications and Finance of the House Comm. on Energy and Commerce, 102d Cong., 1st Sess. 940-42 (1991)(statement of Amos B. Hostetter, Jr., Chairman, Continental Cablevision, Inc.). But a master antenna, with such great penetration (60% of all TV households), acts in an anti-competitive and destructive fashion when it carries most local signals and drops a few weak ultra high frequency (UHF) independents or noncommercial stations. These weak stations are severely threatened because a cable subscriber is unlikely to use either an A/B switch (an input/output switch that permits off-air reception) or maintain an antenna to receive them. The proposal thus gave cable an option: leave over-the-air broadcasting alone so viewers would maintain switches and antennas or carry all such signals. Cable operators would most likely select the latter since over-the-air signals are the most popular. This scheme is truly content-neutral, and would readily pass muster under O'Brien.
[68] 47 U.S.C. ß 521(a)(11) (Supp. IV 1992).
[69] 47 U.S.C. ß 521(a)(8)(A) (Supp. IV 1992).
[70] 47 U.S.C. ß 535(b)(2)(B)(i) (Supp. IV 1992).
[71] 47 U.S.C. ß 534(h)(2)(B) (Supp. IV 1992).
[72] 47 U.S.C. ß 534(h)(1)(C)(ii) (Supp. IV 1992).
[73] See Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2478-79 (1994) (O'Connor, J., dissenting).
[74] Id. at 2478.
[75] Id. at 2478-79.
[76] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2462 (1994). The majority does recognize that the provisions as to low-power and otherwise ineligible stations in 47 U.S.C. ß 534(h)(1)(C) do pose a content problem and leaves the determination concerning their validity to the district court upon remand--a rather clear invitation to the district court to invalidate the provisions. Turner, 114 S. Ct. at 2460 n.6.
[77] Id. at 2461.
[78] Id. at 2469.
[79] The majority is unpersuasive in its effort to respond to the argument that "the must-carry rules are content-based because the preference for broadcast stations 'automatically entails content requirements.'" Turner, 114 S. Ct. at 2462 (quoting Turner Broadcasting Sys., Inc. v. FCC, 819 F. Supp. 32, 58 (1993)). Contrary to the majority's holding, the FCC's oversight authority does grant it the power to require particular types of programming such as children's educational programming, broadcasts by federal candidates for public office, and community-issue oriented programming. See 47 U.S.C. ß 303 (Supp. IV 1992). Furthermore, it is unrealistic for the majority to hold that licensees operating on special channels reserved for noncommercial educational stations are not required significantly to serve educational needs. See Monroe E. Price & Donald W. Hawthorne, Saving Public Television: The Remand of Turner Broadcasting and the Future of Cable Regulation, 17 HASTINGS COMM. & ENT. L.J. 65, 77-78, 80 (1994).
[80] See Geller, supra note 67.
[81] See Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986).
[82] Turner, 114 S. Ct. at 2469.
[83] Id. at 2470; Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989).
[84] Turner, 114 S. Ct. at 2472.
[85] See POLICY AND RULES DIVISION MASS MEDIA BUREAU, CABLE SYSTEM BROADCAST SIGNAL CARRIAGE SURVEY, S. Rep. No. 92, 102d Cong., 2d Sess. 42-43 (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1175-76.
[86] Turner, 114 S. Ct. at 2472.
[87] Id.
[88] Id. at 2479-80 (O'Connor, J., dissenting).
[89] 47 U.S.C. ß 325(b) (Supp. IV 1992).
[90] Turner, 114 S. Ct. at 2474.
[91] While cable's prime time ratings have recently increased, over-the-air signals still garner a majority of the viewing audience. See Basic Cable Scores Big in Feb. Sweeps, ADVERTISING AGE, Mar. 6, 1995 at 2. For business reasons, therefore, cable must seek to deliver such signals to its subscribers. This is true even more so today because cable faces the competition of direct broadcast satellite (DBS) and distinguishes itself from DBS on the ground that it does deliver local signals. If cable failed to do so, subscribers would retain antennas and an A/B switch in order to have access to over-the-air programming. Such retention is undesirable from the viewpoint of the cable operator because it facilitates "churn," i.e., subscribers deciding to leave the system.
[92] Both the stations and the cable system would be adversely affected. The extent of the impact, however, is unclear and would likely vary from case to case. The dissent is wrong in pegging the inquiry to bankruptcy because broadcasters can suffer substantial adverse affects before going bankrupt. In contrast to the dissent's narrowly focused inquiry, the majority offers a broad-ranging economic inquiry on this issue. Compare Turner, 114 S. Ct. at 2472 with Turner, 114 S. Ct. at 2480 (O'Connor, J., dissenting).
[93] See S. Rep. No. 92, 102d Cong., 2nd Sess., 35-36 (1992) reprinted in 1992 U.S.C.C.A.N. 1133, 1168-69. Retransmission consent is not available, however, to noncommercial stations. 47 U.S.C. ß 325(b)(2)(A)(Supp. IV 1992). These stations operate outside of market forces and there is a compelling interest in having their educational, cultural, and informational programming widely available through must-carry.
[94] A survey conducted by the National Association of Broadcasters found that more than 80% of all commercial stations seek retransmission consent. See Brief for Intervenor- Appellees, Consumer Federation of America et. al., at 33 n.31, Turner Broadcasting Sys., Inc. v. FCC 114 S. Ct. 2445 (1994)(No. 93-44)(citations omitted).
[95] The above National Association of Broadcasters survey found that 90% of network affiliates used retransmission consent while only 20% of independent stations took the consent route. Id. at 33 n.32 (citations omitted). It is puzzling that only Justice Stevens took this important pragmatic pattern into account. Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2474 (1994)(Stevens J., concurring). It may stem from the government's failure to advance the point.
[96] It is puzzling why the Court requires the district court on remand to ascertain the number of cable programmers that will be dropped in the event of must-carry. Turner, 114 S. Ct. at 2472. If the must-carry provisions are narrowly tailored to meet a substantial government interest, that should be the end of the matter under O'Brien intermediate-scrutiny analysis. This is so even if the provisions have the incidental effect of causing some number of cable programmers to be dropped.
[97] See City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47 (1986) (holding that content-based regulations "presumptively violate the First Amendment"). This is certainly sound as to regulation that differentiates on the basis of viewpoint and, therefore, falls "in the category of speech regulation that government must avoid most assiduously." Turner, 114 S. Ct. at 2481 (Ginsburg, J., dissenting)(quoting R.A.V. v. St.Paul, 112 S. Ct. 2538, 2568 (1992)). But, as indicated below, such a mechanistic approach should not be applied in determining the constitutionality of regulation like section 5 of the Cable Act.
[98] See Home Shopping Station Issues, 8 F.C.C.R. 5321 (1993) (report and order).
[99] In my view, the public trustee regulatory scheme has been a complete failure, and does not at all insure adequate public service. See Henry Geller, Broadcasting, in NEW DIRECTIONS IN TELECOMMUNICATIONS POLICY 125 (Paula R. Newberg ed., 1989).
[100] It may be argued that there is no compelling state interest even if access were provided on a content-neutral basis which did not discriminate based on localism. But the major difference is that content-neutral regulation is directed to competitive or antitrust considerations. Such regulation may reflect poor policy judgement, but those judgements are for Congress, not the courts, to make. The "may carry, must-carry all" approach is a reasonable means to promote pro-competitive policy and would spur cable systems that seek to be master antennas (as they must do as a practical matter) to expand channel capacity so that they do not act in an anti-competitive fashion.
[101] For a full discussion of the compelling state interest served by the noncommercial educational system, see Monroe E. Price & Donald W. Hawthorne, Saving Public Television: The Remand of Turner Broadcasting and the Future of Cable Regulation, 17 HASTINGS COMM. & ENT. L.J. 65, 76, 84-85 (1994).
[102] See Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1, 10 (D.D.C. 1993), vacated, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).
[103] Cf. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659-60 (1990)(because "state-conferred corporate structure . . . facilitates the amassing of large treasuries," the state has a compelling interest in ensuring that corporations do not use their resources to obtain "an unfair advantage in the political marketplace")(emphasis added). Austin illustrates that content-based regulation is not necessarily invalid where a compelling state interest can be shown.
[104] Turner Broadcasting Sys., Inc. v. FCC, 114 S.Ct. 2445, 2478 (1994) (O'Connor J., dissenting).
[105] Id.
[106] A 1988 FCC survey found that in the period between 1985-1988, 153 noncommercial TV stations were dropped or denied carriage 463 times by 347 cable systems. See POLICY AND RULES DIVISION MASS MEDIA BUREAU, CABLE SYSTEM BROADCAST SIGNAL CARRIAGE SURVEY, S. Rep. No. 92, 102d Cong., 2d Sess. 42-43(1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1175-76.
[107] Turner, 114 S. Ct. at 2479.
[108] Turner, 114 S. Ct. at 2479 (O'Connor, J., dissenting).
[109] Id. at 2478.
[110] The government may have determined that it was very difficult to argue that the must-carry provisions in the commercial arena met a compelling state interest and, therefore, decided that it did not want to defend only part of the must-carry scheme under strict scrutiny analysis.
[111] Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1 (D.D.C. 1993), vacated, Turner Broadcasting Sys., Inc. v. FCC 114 S. Ct. 2445 (1994).
[112] See 47 U.S.C. ßß 531, 532 (Supp. IV 1992).
[113] Daniels Cablevision, 835 F. Supp. at 6. For other cases upholding the PEG requirements under O'Brien, see Telesat Cablevision, Inc. v. City of Riviera Beach, 773 F. Supp. 383, 411-12 (S.D. Fla. 1991); Erie Telecommunications v. City of Erie, 659 F. Supp. 580, 599-601 (W.D. Pa. 1987), aff'd on other grounds, 853 F.2d 1084 (3d Cir. 1988); but see Century Fed., Inc. v. City of Palo Alto, 710 F. Supp. 1552, appeal dismissed, 484 U.S. 1053 (1988); Group W Cable v. City of Santa Cruz, 669 F. Supp. 954 (N.D. Cal. 1987).
[114] See 47 U.S.C. ß 544(b)(1)(Supp. IV 1992).
[115] See Preferred Communications, Inc. v. City of Los Angeles, 476 U.S. 488 (1986), cert. denied, 114 S. Ct. 2738 (1994).
[116] The same strict scrutiny issue would arise in the case of a franchise provision requiring a cable operator to offer a specified amount of programming developed "specifically for the [franchise] community." See Chicago Cable Communications v. Chicago Cable Comm'n, 879 F.2d 1540, 1543 (7th Cir. 1989), cert. denied, 493 U.S. 1044 (1990). Section 624(b)(2)(B)of the Cable Act, which permits franchising authorities to enforce franchise requirements "for broad categories of video programming or other services," would also appear to be unconstitutional under strict scrutiny analysis. See 47 U.S.C. ß 544(b)(2)(B) (Supp. IV 1992). In a universe of multichannel delivery systems and expanding cable programming, there is no compelling need for this interference with editorial autonomy.
[117] 47 C.F.R. ß 76.922(e) (1994).
[118] Petition of Children's Television Workshop at 5, Commission's Sixth Order on Reconsideration and Fifth Report and Order, 59 Fed. Reg. 62614.
[119] Id. at 11-12.
[120] The term "Information Superhighway" is misleading. In reality, the "Superhighway" is a network of networks, with very powerful processing capabilities. In the field of video technology, for example, there are VCRs and discs, over-the-air TV, cable television, telcos, Direct Broadcast Satellite (DBS), wireless cable, and computer delivery systems. As Moore's Law continues to operate (the number of transistors on a chip doubling every 18 months), the computer will become a dominant means of receiving all information, including video. NICHOLOAS NEGROPONTE, BEING DIGITAL, 37-57 (1995). Television, which is now multichannel, will become interactive and customized. See Robert Pepper, Broadcasting Policies in a Multichannel Marketplace, in TELEVISION FOR THE 21ST CENTURY: THE NEXT WAVE 120 (Charles M. Firestone ed., 1993). It seems clear that previously separate industries are converging, creating an abundance of delivery systems and associated equipment with very large digital capacity. See INSTITUTE FOR INFORMATION STUDIES, CROSSROADS ON THE INFORMATION HIGHWAY (1995).
[121] The majority opinion contains no ringing endorsement of the soundness of Red Lion and notes that the scarcity rationale has been criticized "since its inception." Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456-57 (1994).
[122] See FCC v. League of Women Voters of Cal., 468 U.S. 364, 376-77 n.11 (1984).
[123] In large markets, where most people live, no frequencies are open. An open frequency or channel in such a market would attract a multitude of applicants. See S. Rep. No. 34, 100th Cong., 1st Sess., 21-23 (1987).
[124] See S. Rep. No. 34 100th Cong., 1st Sess., 23 (1994).
[125] See Revision of Radio Rules and Policies, 7 F.C.C.R. 6387 (1992)(memorandum opinion and order and further notice of proposed rule making).
[126] See HENRY GELLER, THE ANNENBERG WASHINGTON PROGRAM, 1995-2005: REGULATORY REFORM FOR THE PRINCIPLE ELECTRONIC MEDIA, 12-17 (1994); Kim McAvoy, Dingell May Be Out to Derail Onerous Spectrum Tax, BROADCASTING AND CABLE MAGAZINE, June 13, 1994, at 42-43.
[127] See Metro Broadcasting Inc. v. FCC 497 U.S. 547, 566 (1990)(upholding minority ownership preference provisions adopted by the FCC).
[128] These changes will also occur in the broadcast television industry, as it moves to digital transmission (called Advanced Television Service). This technology enables TV sets to receive either high definitional TV, or six or seven channels, on a single TV (6 Mhz) allocation. See Ken Auletta, Selling the Air, THE NEW YORKER MAGAZINE, Feb. 13, 1995, at 36. In the digital era, since "bits are bits," eventually it will not be possible to distinguish between broadcasting and other forms of electronic publishing.
[129] Id.
[130] In addition to cable, DBS, and the telco video delivery system, such services include multichannel multipoint distribution service (MMDS), operational fixed service (OFS), instructional fixed television (IFTV), and local multichannel distribution service (LMDS).
[131] See Subscription Video, 2 F.C.C.R. 1001 (1987)(report and order), aff'd, Nat'l Ass'n For Better Broadcasting v. FCC, 849 F.2d 665 (D.C. Cir. 1988).
[132] The DBS or other microwave entities can elect to operate as broadcasters (if they intend to serve the public generally), common carriers (if they intend to serve all applicants indifferently and on a non-content-oriented basis), or as private radio non-broadcasters. Id. They generally opt for the last.
[133] 47 U.S.C. ß 335 (1992).
[134] Id. at ß 335(b)(1).
[135] Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1, 8 (D.D.C. 1993), vacated, Turner Broadcasting Sys., Inc. v. FCC 114 S. Ct. 2445 (1994). DBS operators did not challenge the provision. Cable programmers, who also sell to DBS, did challenge the provisions and were found to have standing. Id. There is no evidence that the provision will have any impact on the ability of DBS to carry any programmer. The provision is a speculative future reservation.
[136] Section 25 of the Cable Act also requires the FCC to impose on providers of DBS service programming the political broadcast obligations of ß 312(a)(7)(reasonable access for Federal candidates) and ß 315(equal opportunities and lowest unit rate for candidates). See Direct Broadcast Satellite Public Service Organizations, 8 F.C.C.R. 1589 (1993)(notice of proposed rulemaking). No issue was raised as to these requirements in the Daniels Cablevision case. Section 25 does raise serious constitutional and policy concern, however, in the application of these provisions to multichannel delivery services that can be non-broadcast in nature--for example, to a common carrier DBS service. Id. at  8-20. The FCC has not taken final action in this rule-making proceeding.
[137] S. 1822, 103d Cong., 2nd Sess. (1994).
[138] S. REP. NO. 367, 103d Cong., 2d Sess. 125-26 (1994).
[139] Id. at 126-27. Cable systems were exempted from this provision because of their present access requirements. Id. at 127. Telcos were also exempt because they operate as common carriers and afford nondiscriminatory access. Telcos were obligated, however, to make reserve capacity available at incremental cost based rates. Id. at 39, 126.
[140] Id. at 125-27.
[141] S. Rep. No. 367, 103d Cong., 2d Sess., 41-42 (1994)(citing CBS, Inc., v. FCC, 453 U.S. 367, 395 (1981)).
[142] Id. at 42.
[143] Id.
[144] Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456-58 (1994).
[145] Senator Larry Pressler, Discussion Draft, WASHINGTON TELECOM WEEK, March 24, 1995 (special report)(discussion draft of Senate Bill 652).
[146] S. 652, 104th Cong., 1st Sess. (1995).
[147] Senator Ernest F. Hollings, Staff Working Draft, (February 14, 1995)(unpublished manuscript, on file with the Michigan Telecommunications and Technology Law Review)(staff working draft of Senate Bill 652).
[148] Pressler, supra note 145, at S-23, S-24.
[149] See Pressler, supra note 145, at S-23. The Hollings Draft affords a similar choice. See Hollings, supra note 147, ß 208(a).
[150] See Hollings, supra note 147, ß 101 (b)(3)("to ensure that consumers have access to diverse sources of information"); id. at ß 101 (b)(6)("to allow each individual the opportunity to contribute to the free flow of ideas . . ."); id. at ß 101 (b)(10)(to originate and receive voice, data, video and graphics).
[151] See Hollings, supra note 147, ß 201A(j).
[152] See Hollings, supra note 147, ß 208(D).
[153] S. 652, 104th Cong., 1st Sess. ß 203 (1994). This provision would amend ß 613(b) of the current Cable Act to add a new sub-section (b)(4) which provides that television broadcast stations can gain access to the video dialtone platform at "incremental-cost-based rates" and that local broadcast stations are entitled to access "on the first tier of programming on the video platform." Id.
[154] See NEGROPONTE, supra note 120, at 54-58.
[155] Senate Bill 652 also includes a provision aimed at eliminating the transmission of indecent material over telecommunications facilities. S. 652, 104th Cong., 1st Sess. ß 401 (1995). This provision raises serious free speech issues and should be subjected to hearings and further study in light of technological solutions that are feasible in the digital environment.
[156] Telephone Co.-Cable Television Cross-Ownership Rules, 7 F.C.C.R. 5781, 5783 (1992)(second report and order, recommendation to Congress, and second further notice of proposed rulemaking), appeal pending, No. 92-1404, (D.C. Cir. Sept. 21, 1992).