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TURNER BROADCASTING SYSTEM, INC., ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. 507 U.S. 1301

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OCTOBER TERM, 1992

Syllabus

TURNER BROADCASTING SYSTEM, INC., ET AL. v.

FEDERAL COMMUNICATIONS COMMISSION ET AL.

ON APPLICATION FOR INJUNCTION No. A-798. Decided April 29, 1993

The application of cable operators and programmers for an injunction barring enforcement of §§ 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992-which require cable operators to reserve a portion of their channel capacity for local commercial and noncommercial educational broadcast stations-is denied. Acts of Congress are presumptively constitutional and should remain in effect pending a final decision on the merits by this Court. Moreover, this Act was upheld by a three-judge District Court, which rejected applicants' argument that compelling them to carry signals of video programmers they would otherwise choose not to carry violates the First Amendment. Equally important, applicants are seeking an injunction rather than a stay of a lower court's order. The power to issue such extraordinary relief is to be used sparingly, only when necessary or appropriate in aid of this Court's jurisdiction and the legal rights at issue are indisputably clear. Implementation of §§ 4 and 5 would not prevent this Court's exercise of its appellate jurisdiction to decide the merits of applicants' appeal. Nor is it indisputably clear that applicants have a First Amendment right to be free of the must-carry provisions. This Court has not decided whether the activities of cable operators are more akin to that of newspapers-on whom must-carry provisions cannot be imposed-or wireless broadcasters-on whom regulation has been constitutionally imposed in the past.

CHIEF JUSTICE REHNQUIST, Circuit Justice.

Applicants have asked me, as Circuit Justice for the District of Columbia Circuit, to enjoin enforcement of §§ 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1471-1481, whichcralaw


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require cable operators to reserve a portion of their channel capacity for carrying local commercial and noncommercial educational broadcast stations. Applicants, cable operators and programmers, contend that these "must-carry" provisions violate the First Amendment because (1) they tell cable operators what speakers they must carry, thereby controlling the content of the operator's speech and shrinking the number of channels available for programming they might prefer to carry; (2) they inhibit the operators' editorial discretion to determine what programming messages to provide to subscribers; and (3) they give local broadcast "speakers" a preferred status. I herewith deny the application.

The 1992 Cable Act, like all Acts of Congress, is presumptively constitutional. As such, it "should remain in effect pending a final decision on the merits by this Court." Marshall v. Barlow's, Inc., 429 U. S. 1347, 1348 (1977) (REHNQUIST, J., in chambers). Moreover, the Act was upheld by the three-judge District Court, and even the dissenting judge rejected the argument now urged by applicants-that Congress may not compel cable operators to carry the video signals of programmers they would otherwise choose not to carry. 819 F. Supp. 32, 61 (D. C. 1993). Unlike applicants, therefore, all three judges below would recognize that the Government may regulate cable television as a medium of communication. Ibid.

Equally important is the fact that applicants are not merely seeking a stay of a lower court's order, but an injunction against the enforcement of a presumptively valid Act of Congress. Unlike a stay, which temporarily suspends "judicial alteration of the status quo," an injunction "grants judicial intervention that has been withheld by the lower courts." Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in chambers). By seeking an injunction, applicants request that I issue an order altering the legal status quo. Not surprisingly, they do not cite any case in which such extraordinary relief hascralaw


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Full Text of Opinion





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