GTE California, Inc. v. Federal Communications Commission

Opinion by Judge T.G. NELSON; Dissent by Judge NOONAN.

I.

OVERVIEW

In 1970, the Federal Communications Commission (FCC or Commission) issued rules prohibiting local telephone common carriers from providing cable television service in the area in which they controlled the local exchange.

In 1984, Congress amended the Communications Act by adopting what is now codified *942 in 47 U.S.C. § 533 (b). This section was modeled after the FCC rules and prohibits a telephone company from “provid[ing] video programming directly to subscribers in its telephone service area.” Id. Video programming is defined as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station.” 47 U.S.C. § 522 (19).

In this case, a local telephone carrier which had received a Commission waiver of the restrictions of the Commission’s rules and Section 533(b) raises a facial and “as applied” constitutional challenge to Section 533(b) on the basis that preventing local telephone carriers from carrying television programming violates their First Amendment rights as a content-based regulation of speech. For the reasons stated in the opinion, we hold the…

dissenting:

The court, by judicial legerdemain, has converted a live case, in which four telephone companies challenge an act of Congress severely and irrationally restricting their freedom of speech, into a dead case in which there is no issue before the court. Instead of exercising a federal court’s virtually unflagging obligation to exercise its jurisdiction, this court carefully refuses to examine the controversy put before it for decision. Instead of enforcing the Constitution of the United States, this court says that some other court, some other day, can do the job. The decision is incompatible with our duty as federal judges and wrong in its analysis of the case presented, for two reasons. First, GTECA’s authority to carry a signal in Cer-ritos has not expired. Second, Pacific Telesis Group, Pacific Bell, and Nevada Bell, interve-nors, have claims before the court unmooted by the expiration of GTECA’s license. In what follows I will enlarge on these reasons and then address the merits of the controversy that so vigorously and visibly is pressed upon us for resolution.

*948 First. The FCC, in the order appealed by GTECA, commanded that GTECA “SHALL COME INTO COMPLIANCE…