6 Comm. Law. 1 (1988)

handle is hein.journals/comlaw6 and id is 1 raw text is: ommunications
Publication of the Forum Committee
on Communications Law
American Bar Association
Volume 6, Number 1, Winter 1988

OUTLOO

The Proper Role of Cities in Regulating
Cable Television Service

Editor's Note: This expanded OUTLOOK column examines recent legal developments affecting local regu-
lation of cable television service and offers differing views on the proper role of municipalities in the cable
franchising process. -D.E.L.]

Can Local Franchising of
Cable TV Be Trusted?
Not If You're Serious About the First Amendment
and Are Leery of the Harm That Can Be Caused by
the Sincere Who Would Do Good
BY SOL SCHILDHAUSE
A government-controlled press is not compatible with
a free society. Almost nobody disagrees with that. But
raise the subject of regulating cable television, and
all kinds of nice people find good things to say about
why that, somehow, is not exactly government in the
newsroom.
Cable TV Franchising, as Currently Practiced,
Is a Licensing of the Press
It is the view of this commentary that the local fran-
chising of cable television has developed into a li-
censing of the press, an authoriz-
ing process that is slowly but cer-
tainly bringing to the forefront in
local political life all the least de-
sirable elements of government.
The process has spawned a whole
new industry of cable administra-
tors, commissions, consultants,
and legal specialists who compete
with each other as to who can cre-
ate the most extensive and high-
sounding rhetoric to justify du-
bious efforts in behalf of some per-
ceived public need. With their
endlessly growing forms and pro-
cedures, they try to outgrasp one
another as they strive to lay a sci-
entific disguise on the local selec-
tion process. There is, of course,
Continued on page 20

The State of Municipal Cable
Television Regulation
BY NICHOLAS P. MILLER,
ALAN CIAMPORCERO,
& LARRINE S. HOLBROOKE
I. Introduction
The fall of 1987 was a heady, if illusory, time for op-
ponents of local regulation of cable television. Fed-
eral district courts in California severely limited the
power of Palo Alto, Santa Cruz, and Sacramento, Cal-
ifornia to serve the public interest by cable franchis-
ing, accepting instead the argument that franchising
violated cable operators' First Amendment rights.
[See Century Federal v. City of Palo Alto, No. C-85-
2168 EFL slip. op. (N.D. Cal. Sept. 1, 1987) (herein-
after Palo Alto); Group W Cable, Inc. v. City of Santa
Cruz, 669 F. Supp. 954 (N.D. Cal. 1987) (hereinafter
Santa Cruz); and Pacific West Ca-
ble Co. v. Sacramento, 672 F. Supp.
1322 (E.D. Cal. 1987) (hereinafter
Sacramento).] Although a federal
court in Pennsylvania endorsed the
City of Erie's authority to regulate,
[Erie Telecommunications, Inc. v.
City of Erie, 659 F. Supp. 580 (W.D.
Pa. 1987) (hereinafter Erie)], the
headlines went as usual to events
in California. The California deci-
sions have been portrayed by some
as heralding a new era in cable
television business and law.
The prophets of complete de-
regulation conjure up an image of
an environment in which con-
sumers will have a choice among
cable companies, with the disci-
Continued on page 26

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