AJR  Columns :     THE PRESS & THE LAW    
From AJR,   October 1993

What Kind Of Animal Is Cable Television?   

Courts struggle to decide if it should be regulated like broadcasters, or have the freedom of newspapers.

By Lyle Denniston

No issue in First Amendment law begs more for a definitive answer than this one: How much freedom of expression will be allowed to those who speak through the medium of cable television? A federal judge in Alexandria, Virginia, has begun to answer the question by expanding cablecasters' rights. Only the U.S. Supreme Court, the judge suggested, could allow them even more freedom.

Cable television, which has enjoyed a quarter-century of astonishing growth, is hot. Cable is available in 98 percent of American homes. Sixty-two percent of them are hooked up. In its infancy in the late 1960s, cable was an option in less than 10 percent of homes.

Yet cable's rights under the First Amendment remain murky. The Supreme Court has merely hinted that the medium does have some right to "speak."

Part of the problem is that many judges do not seem certain as to what kind of legal entity cable is. If it is a form of broadcasting, with only a limited number of "speakers" able to take part, then it is like over-the-air radio and television. By granting licenses, the government in effect decides who gets to speak, and it regulates the speakers. But if cable is different from broadcasting, in the sense that theoretically an unlimited number of players could participate, then it is like the newspaper and magazine businesses, and the government must keep its hands off and let the marketplace work its will.

Cable, however, seems to exist somewhere in between. The result is legal confusion.

True, it does broadcast: It sends an electronic signal to a receiver. But it does not use the public airwaves; it uses only a wire to carry its message. Still, where it exists, it does so because it has a local government license. And there are presumably only so many telephone poles or underground utility tubes to hold cable wire. Moreover, it has been argued that there is a limit to the number of cable operators that can survive in a market (a "natural monopoly").

Some of those characteristics have been used to justify government controls on cable similar to those on over-the-air radio or television.

But time and experience have shown that cable is really quite different from other broadcasting. It is now clear that there is no economic reason why a multitude of operators could not function in a community if the local government allowed competition. And space for wires is not as limited as was once thought, since a bunch of cables or fiber optic lines can be strung together without interfering with each other's signal.

Those factors suggest a similarity to non-broadcast media, which should mean less, or even no, government supervision.

Congress and the Federal Communications Commission, however, have acted throughout cable's existence as if it were more like broadcasting and required regulation. For example, the FCC for years had rules forbidding local telephone companies from becoming cablecasters, fearing they would hide their cable costs in their rates to telephone users and undersell existing cable operators. In 1984 Congress wrote that ban into law.

Now a local telephone company has found the First Amendment quite useful in its effort to overturn the prohibition. In Alexandria, Virginia, U.S. District Judge T.S. Ellis III ruled in late August that those who would speak by cable are entitled to significant First Amendment protection.

He concluded that expression by cable is not the same as broadcast expression and should not be treated the same: It is not a physically limited phenomenon, he found, and not a natural economic monopoly. Congress' total ban on telephone companies as cablecasters directly interferes with the companies' constitutional right to express themselves in a particular medium, the judge ruled.

The ban cannot be justified, he said, just because the government wants to assure that telephone companies don't compete unfairly with existing cable firms.

But, Ellis added, a number of recent Supreme Court rulings on the First Amendment suggest that some forms of message-control by government will be allowed, so he could not go too far to assure broader free speech rights for telephone companies. He did, though, find that the 1984 ban was not a narrowly crafted form of regulation, and struck it down. He determined that the ban did not promote competition by protecting existing cable operators, as Congress thought, but instead simply shut out real competitors. Moreover, he said, the government could use other methods to keep telephone companies from abusing their new freedom.

Ellis' ruling is likely to be appealed, so its ultimate fate is in doubt.

In the meantime, cable operators are upset with the ruling. But Ellis has made a modest beginning toward genuine freedom for all cablecasting. l