United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 18, 1999 FOR THE FIFTH CIRCUIT No. 98-20031 Charles R. Fulbruge III Clerk ROBERT HORTON, NATIONALIST TELEVISION, a Texas Non-Profit Corporation; and BARRY HACKNEY,
Plaintiffs-Appellants,
versus
CITY OF HOUSTON, TEXAS and ACCESS HOUSTON CABLE CORPORATION,
Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas June 18, 1999 Before KING, Chief Judge, JOLLY, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
At issue in this appeal is whether Access Houston Cable
Corporation (“Access”), a “PEG” cable channel,1 can, consistent
with the First Amendment, charge a fee to cable-cast programs not
“locally produced” in and around Houston, Texas. We conclude that
Access Houston’s fee requirement is a content-neutral regulation
which implements a significant governmental interest in promoting
localism, but Access has not met its burden of proving that the fee
is narrowly tailored to serve that interest. We therefore reverse
the grant of summary judgment and remand for further proceedings.
BACKGROUND
The City of Houston granted a cable franchise to Warner
Cable Communications (“Warner”) that required Warner to designate
1 PEG channels are those reserved for public, educational or governmental use by the municipal franchise agreement with a cable operator. See 47 U.S.C. § 531 and 531(e). at least four PEG channels for the city’s benefit.2 Houston then
engaged Access to manage the channels, including a public access
channel.3 Access is not a typical cable channel: It does not
operate for profit, it does not have an editorial board that
selects programming for cable-cast, and it does not sell
advertising space. Instead, Access’s programming space is open to
any individual or organization who wishes to televise
constitutionally protected speech. Access neither produces
programs nor broadcasts commercial programs. To promote the original programming on which it relies, Access offers (for a
nominal fee) video cameras and other production equipment, training
workshops, studio space and other services.
Access touts that it will broadcast any non-commercial
program as long as the program engages in constitutionally
protected speech and complies with various rules designed to
allocate air time among the programmers. Access employees do not
pre-screen submitted programs to determine whether they comply with
the non-commercial speech rule or the First Amendment; instead,
Access requires program providers to accept liability for the content of their programs by signing a Program Contract before the
program will be aired.4
2 Under the franchise agreement, the City of Houston can require Warner to make available an additional four cable channels if certain conditions are met. 3 That Access is a state actor is undisputed on appeal. 4 Pursuant to Rule 2.A-5, all program providers who wish to schedule broadcast time with Access must first sign a Program Contract. The Rule states that,
2 At the time this dispute arose, Access sought to
encourage programs “that reflect[] the activities, culture,
concerns, and interests of the citizens of Houston and []promote a
free exchange of ideas, information and understanding.”5 To
fulfill its contractual obligation with the City, Access’s Board of
Directors adopted a rule, which has been in effect since 1988,
providing for “locally produced” programs to be broadcast free of
charge. To qualify as a “locally produced program,” at least 50
percent of the program must have been shot within the Houston Standard Metropolitan Statistical Area. Programs that do not
comply with the “locally produced” rule are assessed a fee:
individuals who submit non-local programs must pay $75 for each
hour of programming, while organizations are charged $100 per hour.
Because Access does not pre-screen submitted programs, it cannot
initially determine whether a program complies with the rule.
Access relies on each program provider voluntarily to disclose
whether the submitted program was locally produced.
In March 1992, Appellant Nationalist Television (“N-TV”),
as agent for Houston resident appellant Robert Horton, submitted a
2.A-5 PROGRAM CONTRACT AND RESPONSIBILITY: Before access programs are scheduled for cable-cast, the access program provider must sign a Program Contract which holds the program provider liable for content of the program and pay all applicable fees. In signing the Program Contract, the program provider agrees in writing that his or her program does not include any form of “constitutionally unprotected speech.” 5 Access Houston ByLaws Art. III (1986). After the events in this case, in its 1994 contract with the City of Houston, the requirement to support localism became more explicit: “a minimum of 51 percent of the total hours programmed on the Access channel shall be locally produced in the Houston metropolitan area.”
3 30-minute program for cable-cast entitled Airlink.6 After a month
had passed and the program had not been cable-cast, N-TV wrote to
the Houston City Attorney’s office demanding that Access
immediately cable-cast Airlink. The City Attorney replied that
Access operates independently of the City and that Houston cannot
require Access to broadcast Airlink. In addition, N-TV was
informed that, according to Access, N-TV had not complied with the
procedural requirements necessary to broadcast Airlink and that N-
TV should directly contact Access to complete the application process. Despite this notification and the receipt of a complete
copy of the Access procedural rules, N-TV continued to complain to
the Houston City Attorney’s Office rather than to Access. Months
later, N-TV turned to Access and learned that it, like all other
program providers, must sign a Program Contract. Two months more
passed, N-TV finally signed the requested Program Contract, and
Access began cable-casting Airlink.
Airlink was produced at a studio in Mississippi and did
not qualify as a “locally produced program.” N-TV was thus
required to pay the $100 cable-cast fee.7 N-TV refused to pay, arguing that the fee violated the First Amendment, and filed the
present lawsuit seeking a declaratory judgment, a temporary
restraining order, and a permanent injunction. Ironically, Access
began regularly cablecasting Airlink just after the suit was filed,
6 The content of Airlink is described as “pro-majority” in some portions of the record and “white supremacist” in other parts of the record. 7 Since Airlink was a half-hour program, the $100 fee was prorated, making N-TV liable for $50 per cable-cast.
4 from December 1992 through February 1993. When N-TV refused to pay
fees for the three months of programming that had been aired,
Airlink was canceled.
Immediately after appellants filed suit, the district
court held a hearing to rule on appellants’ request for a temporary
restraining order (“TRO hearing”). The district court denied the
request and offered to set the case for trial. Each party then
moved for summary judgment. The court held in favor of Access and
the city, ruling that the fee requirement is a facially valid, content-neutral regulation incidental to free speech under the test
articulated in United States v. O’Brien, 391 U.S. 367, 88 S. Ct.
1673 (1968), and that the appellants failed to raise a genuine
issue of material fact regarding whether the fee requirement was
unconstitutional as applied.
STANDARD OF REVIEW
The standard of review of a summary judgment at the
appellate level is de novo. Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106
S. Ct. 2548 (1986). Under this standard, all fact questions must
be viewed in the light most favorable to the non-moving party, and
questions of law are reviewed de novo. Hassan v. Lubbock Indep.
Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995).
5 DISCUSSION
N-TV scatter-guns its First Amendment arguments against
the Access fee for non-locally-produced programs. Attacking the
fees both facially and as applied, N-TV asserts that the fee rule
grants overbroad, arbitrary discretion to Access administrators,
encouraging content-based discrimination against programs. More
fundamentally, N-TV contends that the fee regulation is an
impermissible content-based rule. N-TV also levels equal
protection, overbreadth and vagueness challenges to the fees, but these arguments were not raised in the district court and will not
be considered here.
Fitting the PEG channels into the familiar holes of First
Amendment jurisprudence is not easy. The premise of our discussion
is that programmers have some kind of First Amendment rights to
share the podium at a PEG local access channel set aside by
Houston’s cable franchise contract. The Supreme Court has implied
that all of the participants in cable television-programmers, cable
operators, TV broadcasters, PEG channels -- enjoy free speech
rights, but the limits of those competing and potentially conflicting rights are far from clear. See generally, Pluralism on
the Bench: Understanding Denver Area Educational Telecommunications
Consortium v. FCC, 97 Colum. L. Rev. 1182 (1997).
The first conundrum relates to the dubious status of PEG
channels, which municipalities have the authority to set aside in
their cable franchise agreements with cable operators. See 47
U.S.C. § 531(a). In the “must-carry” case, the Supreme Court
6 upheld a federal law requiring cable operators to make available
transmission space for local TV broadcasters. Turner Broadcasting
System v. FCC, 512 U.S. 622, 114 S. Ct. 2445 (1994). The Court
concluded that the “must-carry” provisions are a content-neutral
regulation designed, not to force a particular type of speech upon
cable operators, but to further the non-speech-related goals of
protecting local broadcasters and assuring free TV access to
citizens who lack cable connections. The four dissenters in Turner
essentially stated, however, that forced set-aside of PEG channels is a content-related imposition on cable operators, Turner 512 U.S.
at 675, 114 S. Ct. at 2476 (O’Conner, J., concurring in part and
dissenting in part), and the majority decision offers no rationale
opposed to such a conclusion.8 Justice Thomas reiterated the PEG
constitutionality problem and scholarly discussions of it in the
Court’s most recent cable decision, only to note that the issue had
not been raised. See Denver Area Educ. Telecomm. Consortium v.
FCC, ___ U.S. ___, 116 S. Ct. 2374 (1996). The ultimate fate of
PEGs, including Houston’s local access channel, remains in doubt,
but is not to be decided in this case. The second conundrum arises from the implicit concession
of Access that the local access channel represents a government-
owned designated public forum. Nevertheless, the Supreme Court has
cautioned that “the public forum doctrine should not be extended in
8 Indeed, the majority emphasized that neither the must-carry rule nor laws and rules presently applicable to broadcasting (e.g. on non- commercial stations) directs the content of the programs. Turner, 512 U.S. at 649-651, 114 S. Ct. at 2462-63.
7 a mechanical way to the very different context of public
television-broadcasting.” Arkansas Educ. Television Comm. v.
Forbes, __ U.S. __, 118 S. Ct. 1633, at 1639 (1998). In a later
cable regulation case, seven justices of the Court either rejected
or declined to consider Justice Kennedy’s assertion that a local
access channel is a public forum available to citizens under the
most exacting constitutional standards. Compare Denver Area, ___
U.S. at ___, 116 S. Ct. at 2404-05 (Kennedy, J., concurring in part
and dissenting in part), with id. ___ U.S. at ___, 116 S. Ct. at 2388-89 (Breyer, J.) (refusing to consider public forum doctrine),
and id. ___ U.S. at ____, 116 S. Ct. at 2426-28 (Thomas, J.,
concurring in the judgment in part and dissenting in part) (PEG
channel is not a public forum). If one were either to press the
analogy between Access and a classic public television station or
to reject the public forum doctrine for local access channels, then
Access would enjoy virtually unfettered programming discretion.
Access does not request such latitude, however, so the arguments
that Access is not a public forum or is a limited public forum are
not before us. The consequence, for First Amendment purposes, of
ascribing particular forum (or non-forum) characteristics to Access
lies in the strictness of legal scrutiny that will be applied to
Access’s fee regulation. Access contends that the regulation is
subject to “intermediate scrutiny” because it has nothing to do
with the content of programmers’ speech. Turner, 512 U.S. at 642,
114 S. Ct. at 2459. N-TV argues and Access concedes that were the
8 regulation content-related, it would be subject to strict scrutiny.
Id. And this dichotomy of regulations has been developed to govern
what may be done to limit speech in either a traditional public
forum or a designated public forum.9 See 4 Ronald D. Rotunda &
John E. Nowak, Treatise on Constitutional Law § 20.47 at 310-11 (2d
Ed. 1992). Although it is impossible to state whether a local
access channel should be analyzed by reference to the public forum
doctrines, the dichotomy of standards seems to apply to broadcast
regulations. The nub of the parties’ disagreement turns upon whether
the fee charged for non-locally produced programs is content-
neutral, or, as N-TV would have it, a ruse for influencing the
content of programs that will be cable-cast.
The Supreme Court has observed that “[d]eciding whether
a particular regulation is content based or content neutral is not
always a simple task.” Turner, 512 U.S. at 642, 114 S. Ct. at
2459. Regulations that “by their terms distinguish favored speech
from disfavored speech on the basis of ideas or views expressed are
content based.” Id. 512 U.S. at 643, 114 S. Ct. at 2459. Thus, a rule that is applied because of disagreement with a message
presented or a rule that has a substantial risk of eliminating
certain ideas or viewpoints from the public dialogue are content-
based. See id. 512 U.S. at 642, 114 S. Ct. at 2459; Clark v.
9 If Access were, instead, a limited public forum or a nonpublic forum it would be permitted to place reasonable restrictions on the speech of programmers. See Forbes, ___ U.S. at ___, 118 S. Ct. at 1640-42. But it plainly does not fit in these categories.
9 Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S. Ct.
3065, 3070 (1984). If, on the other hand, the regulation is
justified without reference to the content of the speech or serves
purposes unrelated to the content, it is a content-neutral
regulation, even if it has an incidental effect on some speakers or
messages but not others. See Ward v. Rock Against Racism, 491 U.S.
781, 791, 109 S. Ct. 2746, 2754 (1989); Boos v. Barry, 485 U.S.
312, 320, 108 S. Ct. 1157, 1163 (1988). Finally, this court has
noted that government regulations that apply evenhandedly to all speakers weigh in favor of finding content-neutrality. See
International Soc’y for Krishna Consciousness of New Orleans, Inc.
v. Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989).
We conclude that Access’s fee rule is content-neutral
because the rule does not, by its terms, distinguish between
favored speech and disfavored speech. Access does not examine the
content or message of submitted programs in determining whether to
impose a fee. Compare Frisby v. Schultz, 487 U.S. at 474, 481-82,
108 S. Ct. 2495, at 2501 (1988) (finding that a municipal ordinance
prohibiting all picketing near a residence was content-neutral because government did not have to look at the content to determine
where picketers can demonstrate), with Boos, 485 U.S. 312, at 318-
19, 108 S. Ct. 1157, at 1162 (1988) (finding that an ordinance
prohibiting demonstrations in front of foreign embassies that are
critical of the foreign government was content based because
government necessarily had to review content to determine the
legality of the demonstration). Access’s fee regulation is an
10 evenhanded charge on all providers submitting non-locally-produced
programming, regardless of the content or viewpoint contained in
the program. In addition, the fee rule can be justified without
referring to the content of any of the submitted programs. See
Ward, 491 U.S. at 791, 109 S. Ct. at 2754. As discussed infra,
Access asserts that the fee rule promotes local ideas and debate
and helps fund equipment and training for local producers and the
cost of Access’s operations. See id.; Boos, 485 U.S. at 320, 108
S. Ct. at 1163. Finally, we rely on a Seventh Circuit case that upheld as content-neutral, albeit before Turner, a Chicago rule
requiring locally-produced programs. Chicago Cable Comm. v.
Chicago Cable Comm’n, 879 F.2d 1540 (7th Cir. 1989).
To the extent that Access’s fee rule unabashedly prefers
locally-produced programs, we recognize that it is not
unassailable. The dissenters in Turner criticized legislative
preferences for “diversity of viewpoints, for localism, for
educational programming . . .” as content-based regulations.
Turner, 512 U.S. at 675, 114 S. Ct. at 2476. They noted that no
matter how praise-worthy the objectives, government may not favor one set of speakers over another. See id. 512 U.S. at 677-78, 114
S. Ct. at 2476-77. Only a four-member plurality in Turner directly
responded to arguments concerning localism, but the majority
opinions emphasized the purely economic reasons why Congress wanted
to support local broadcasters by requiring “must-carry” by cable
operators. The non-speech-related basis for the rule made it
content-neutral. See id. 512 U.S. at 645, 114 S. Ct. at 2461.
11 In this case, one may argue that while the interest in
“localism” is furthered by the fee rule, not only is there no
direct content regulation, but the fee compensates the citizens of
Houston in a small way for the costs incurred when non-locally-
produced programs air on the Access channel. The fee subsidizes
Access and substitutes for the local resources that could otherwise
be utilized to produce programs. The fee thus has an independent
economic basis more closely analogous to the content-neutral must-
carry rule than to a purely content-related localism preference. We therefore conclude that the non-locally-produced fee rule is
content-neutral.
The standard for evaluating the constitutionality of
content-neutral regulations was articulated in O’Brien:
[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
O’Brien, 391 U.S. at 377, 88 S. Ct. at 1679. As Access’s fee regulation is on balance a content-neutral rule, the third prong of
the O’Brien test has been satisfied, and, germane to the first
prong, Houston has the power to sponsor a public access cable
channel and raise revenues for its operation.
Still at issue are the second and fourth O’Brien
standards. “Even a content-neutral regulation of speech on a
public forum must be narrowly tailored to serve a significant
government interest and must leave open ample alternative channels
12 of communication.” Hays County Guardian v. Supple, 969 F.2d 111,
118 (5th Cir. 1992). The burden is on Access to show that the fee
requirement is narrowly tailored to protect the identified
interests. See id. at 119. A regulation is narrowly tailored
“when it does not ‘burden substantially more speech than is
necessary to further the government’s legitimate interests.’” Id.
at 118 (quoting Ward, 491 U.S. at 799, 109 S. Ct. at 2758). In
other words, Access must show that the fee requirement promotes a
substantial governmental interest that would be achieved less effectively absent the regulation. See United States v. Albertini,
472 U.S. 675, 689, 105 S. Ct. 2897, 2906 (1985); Chicago Cable, 879
F.2d at 1550.
Access argues that the fee requirement promotes the
substantial governmental interest in “localism.” According to
Access, the fee encourages residents to produce programs featuring
topics of local concern which in turn enhances community self-
expression and fosters direct communication among residents. Since
a portion of the revenues derived from Houston residents’ cable
bills funds Access’s operations, residents should not have to subsidize non-locally-produced programs.10 Similarly, Access urges
10 At the TRO hearing, the executive director for Access expanded on this theme, testifying that, the residents of the City of Houston, through their cable bills, underwrote the costs of the facilitation that our organization provides of putting the programs together, scheduling them and putting them on the cable system. We’ve never had a problem with where programs come from in terms of content. We frankly don’t care about what the content is. What we were concerned about was it seemed unfair to us that the residents of City of Houston should subsidize programs that were from somewhere else and that, if someone wished to
13 that the revenues generated from the fee train local producers,
purchase production equipment, and fund the general operations of
Access. Finally, encouraging residents to produce local
programming increases job opportunities and career development of
Houston residents. We agree--and N-TV does not dispute11--that the
promotion of “localism” in this context is an important
governmental interest. See Chicago Cable, 879 F.2d at 1549-50.
That Access’s asserted interests are substantial in the
abstract does not mean, however, that the fee regulation fulfills them and is narrowly tailored to protect those interests. The fee
rule will be considered narrowly tailored if Access can demonstrate
that it does not “burden substantially more speech than is
necessary to further the government’s legitimate interests.” Ward,
491 U.S. at 799, 109 S. Ct. at 2758. According to Access’s rules,
“locally produced programs” are aired free of charge, while
“programs produced elsewhere” are charged either $75 or $100 per
hour. Access defines local programming as “[a]ny program submitted
for cable-cast containing program material of which fifty (50)
percent or greater was shot” within the Houston Standard Metropolitan Statistical Area.
Access has failed to demonstrate narrow tailoring of the
fee rule as a matter of law. It has not shown that, absent the fee
charged to providers of non-local programs, its interest in
use the facilities, that they should contribute to sustaining the organization that had to help facilitate the users of all the programs on the channels. 11 At oral argument, N-TV agreed that Houston has a substantial interest in promoting localism.
14 promoting localism “would be achieved less effectively.”
Albertini, 472 U.S. at 689, 105 S. Ct. at 2906. Access has not
provided any evidence linking the amount charged to non-local
producers and the promotion of localism. More precisely, Access
has not shown the amount of revenue generated from the fee, the
number of providers who have been charged the fee, or whether the
fees have actually helped purchase equipment, train producers,
enhance community self-expression, or offset amounts underwritten
by Houston cable subscribers. Access acknowledged there is no scarcity of time available for programs, so the fee plays no role
in rationing airtime favorably to locally produced programs.
Access’s general fee schedule demonstrates the lack of
correlation between the amount charged to non-locally produced
programs and its stated justification for imposing a fee. Access
heavily subsidizes most of the services and equipment it offers to
the public. Next to each item listed on the general fee schedule,
Access lists the cost of the item, the amount subsidized by Access,
and the resulting net cost to the producer.12 Notably, however, the
fees charged to program providers for cable-casting their programs are not itemized by actual cost, amount subsidized, and net cost to
provider. The general fee schedule merely states that Access airs
locally produced programs free of charge, while programs produced
elsewhere are charged either $75 or $100 per hour, depending on
12 For example, the actual cost of renting a “VideoMobile Portable Kit” is $250; however, Access pays $190 of the cost via a grant, leaving the producer liable for only $60. See Access Houston Cable Corporation’s Objections to Proposed Order Granting Summary Judgment, Exhibit D (fee schedule effective May 19, 1988).
15 whether the provider is an individual or organization. Not only is
there no evidence how much of the fee charged for non-locally-
produced programs compensates Access for its cable-casting costs of
those programs, but Access’s executive director testified that he
had recommended abolition of the fee to the Board of Directors.
The inescapable conclusion is that the fee serves no measurable
purpose.
Because Access has not met its summary judgment burden to
sustain the fee, this case must be reversed and remanded. See Turner, 512 U.S. at 667-68, 114 S. Ct. at 2471-72 (reversed and
remanded for further factual development). On remand, Access
should prove how much revenue accrues from the fee for non-locally-
produced programs, as well as the purposes for which it uses the
revenue. If the revenue is minimal -- that is, if it fails to
ration scare airtime, to reimburse Access’s costs of airing non-
locally-produced programs, or to make any realistic dent in the
costs borne by cable subscribers for the production facilities --
then the district court may conclude that the fee suppresses
protected speech without providing any asserted benefits. Further judicial efforts would be avoided, however, if we
accept N-TV’s alternative argument that the fee rule confers
excessive discretion upon Access’s administrator and permits
content-based discrimination. According to N-TV, Access’s own
interpretation of the fee rule undermines the argument that it is
narrowly tailored. See Forsyth County v. The Nationalist Movement,
505 U.S. 123, 131, 112 S. Ct. 2395, 2402 (1992) (courts should
16 consider the government’s interpretation of a challenged regulation
when addressing facial challenges). In Forsyth County, the Supreme
Court addressed whether a county could constitutionally charge a
fee to speakers who wished to hold a rally in a traditional public
forum. See id. 505 U.S. at 129, 112 S. Ct. at 2400. The Court
struck down the ordinance because it vested too much discretion in
the county administrator; the administrator could, without
objective guidance, determine how much or whether to charge the
demonstrators a permit fee of up to $1,000. See id. 505 U.S. at 132-33, 112 S. Ct. at 2402-03. In the present case, the Executive
Director of Access felt that he could independently determine
whether to charge a fee for certain non-locally-produced programs.
During the TRO hearing, the following exchange occurred between
Appellants’ attorney and Access’s Executive Director:
Question: What about a guy that stopped by the other day and just happened to pick up some of your material and the receptionist was there and I said, “You know, what if somebody wanted to go up and get an interview in Dallas with Ross Perot, shoot it up there” and she said, “That will be all right?” Would that be okay with you?
Answer: It would be okay with me.
Question: No charge for that?
Answer: No charge.
Question: Okay. Now, just assume for a moment that here is a tape and we’re showing it and there is Senator Gramm. He’s seated at a desk. There’s books behind
17 him. And he’s sitting there talking about taxes. Everybody is concerned about them these days. Any problem putting that on?
Answer: No.
Question: Okay. Now, let’s say that it’s on the air and one of your staff comes in and says “Mr. Cantrell, you know, I’ve been in Senator Gramm’s office in Washington and I recognize those books. That was filmed in his office in Washington.” No real problem, though? Answer: No real problem.
Other similar exchanges occurred during the TRO hearing, each one
suggesting that Access’s administrator could, at his discretion,
make special exceptions to the fee rule depending upon the
circumstances presented.13 The discretion afforded the Executive
Director is highlighted by contrasting the hypothetical above with
13 For instance, in another exchange, Access’s Executive Director testified as follows: Counsel: Let’s say that Mr. Horton comes into your studio and he produces a show right there in your studio every week, free. He goes to Mississippi. He’s over there visiting the headquarters [of N-TV] and everything and the poor fellow is in a car wreck and he broke his leg and he calls you up and says, “I can’t get back to Houston. I’m going to have to shot this from the hospital bed in Jackson” and he sends you the tape. Is he going to have to pay for that? Answer: Under the Current rules, that would be the case. Counsel: Would you waive that in this case? Answer: Would I waive it? Counsel: Yes Answer: In the grievance procedure, I would recommend that we waive it. I would probably take it upon myself to waive it.
18 one presented to him later during the TRO hearing:
Question: [Suppose] [h]e’s got a 30- minute show. He comes so close. for 14 minutes he shows the Houston skyline. Would you let him slide on that without having to pay?
Answer: Like I say, we would -- that would be a good issue to discuss in the grievance procedure.
Question: You might let it slide?
Answer: Well, I don’t think I would let it slide. But if it came up, I think it would be something worth discussing with the board.
Access’s response to this troubling amount of apparently
unguided discretion is that N-TV presented no actual evidence that
the fee had been discriminatorily imposed. We agree that, in light
of the express objectivity of the rule, a facial challenge based on
standardless discretion lacks merit. The rule, unlike the sliding-
scale fee in Forsyth, unequivocally identifies the programs to
which it applies and simply does not justify the latitude which the
Executive Director hypothesized. Further, lacking any proof that the fee was ever administered discriminatorily to suppress
disfavored speech, N-TV’s as-applied challenge must fail.
CONCLUSION
Much is uncertain about the scope of First Amendment
benefits and burdens in the cable industry. The directions
presently available to us from the Supreme Court appear to require
a standard less than that of strict scrutiny for Access’s non-
19 locally-produced fee rule, but they also require attention to the
details of intermediate scrutiny. Regulations like this one which
burden protected speech are not to be rubber-stamped. Based on the
foregoing discussion, the case must be reversed and remanded for
further factual development.
REVERSED and REMANDED.