Just when Los Angeles thought that it was coming to grips with the regulation of cable television, a federal appeals court has created vast new uncertainties. Last week's 9th U.S. Circuit Court of Appeals decision throws into doubt the city's method of deciding which cable companies shall operate in which neighborhoods even as the city prepares for the next major round of franchising.
In a case involving South-Central Los Angeles cable service, the court ruled that the city's method of awarding exclusive franchises to cable operators is unconstitutional because it violates the First Amendment right of free speech. Los Angeles in effect auctions the franchises to win companies' agreement that they will provide public-access channels and other public services. The grant of an exclusive franchise to do business is the leverage with which the city receives these promises of service. There are many things that are unclear about the decision, and among these uncertainties are the circumstances under which exclusive franchises could ever be awarded.
Indeed, most cities allow only one company to serve one general area. They have made the policy determination that it is in the public interest to ensure that all neighborhoods rather than just affluent ones are wired for cable. Without exclusivity, all companies might go for a few markets, and lower-income neighborhoods would be denied access to the full range of cable services.
Cable regulation follows the basic principles of public-utility regulation. Just as in the early days of franchising a city could not have four or five sets of streetcar tracks on the same streets, today's city can't allow repeated disruption of neighborhoods by competing companies stringing cables or digging up the streets to lay cable. The court decision does not seem to take account of this common-sense need for some city control.
For years Congress wrestled with the question of franchising, and last fall came up with a delicate compromise: the Cable Communications Policy Act of 1984. It specifically authorizes local authorities to award one or more franchises--a provision with which the court appeared to disagree. So not only does the decision cloud the local picture, it could eventually undo the national attempt to bring some order to the cable morass.
The court decision should indeed be appealed, and we would hope overturned, in the interests of clear authority for local regulation. The decision's timing could not have been worse. After years of operating solely under an outmoded 1927 law, the Los Angeles City Council in recent years has tried to focus on better cable regulation and thus better service to the public. On Tuesday the city's new Board of Telecommunications Commissioners met to draw up suggested guidelines for the City Council to use when current franchises come up for renewal in 1987. The council is also working on a new cable-television ordinance. Now everyone is back in a thicket that seems to benefit only the lawyers who know how to read the footnotes, not the consumers trying to get cable service.