Capital Cities Cable, Inc. v. Crisp

PETITIONER: Capital Cities Cable, Inc.
RESPONDENT: Crisp
LOCATION: Clifford Residence

DOCKET NO.: 82-1795
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 467 US 691 (1984)
ARGUED: Feb 21, 1984
DECIDED: Jun 18, 1984

ADVOCATES:
Brent N. Rushforth - Argued the cause for the petitioners
Michael W. Mc Connell - on behalf of the FCC as amicus curiae, pro hac vice
Michael W. McConnell - Argued the cause pro hac vice for the Federal Communications Commission as amicus curiae in support of the petitioners
Robert L. Mc Donald - on behalf of the Respondents
Robert L. McDonald - Argued the cause for the respondent

Facts of the case

In 1980, Oklahoma's Attorney General determined that the re-broadcasting of out-of-state alcoholic beverage commercials by Oklahoma cable television stations violated the State's ban against advertising alcoholic beverages. Richard Crisp, the Director of Oklahoma's Alcoholic Beverage Control Board, warned the offending cable operators that their continued transmission of banned beverage commercials would result in criminal prosecution. In response, and on behalf of other cable operators, Capital Cities Cable challenged the constitutionality of Oklahoma's advertising ban. On appeal from the Tenth Circuit's reversal of a district court decision favoring Capital Cities Cable, the Supreme Court granted certiorari.

Question

Did Oklahoma's ban against retransmitting out-of-state cable signals containing alcoholic beverage commercials violate the Supremacy or Commerce Clauses?

Media for Capital Cities Cable, Inc. v. Crisp

Audio Transcription for Oral Argument - February 21, 1984 in Capital Cities Cable, Inc. v. Crisp

Warren E. Burger:

We will hear arguments next in Capital Cities Cable against Richard A. Crisp.

Mr. Rushforth, I think you may proceed when you are ready.

Brent N. Rushforth:

Mr. Chief Justice, and may it please the Court, this case presents a challenge to Oklahoma's requirement that cable TV operators delete wine advertising from programming they bring into the state of Oklahoma.

The District Court found that it is infeasible for cable TV operators to delete the advertising from their programming.

The Court of Appeals did not overturn that finding.

Indeed, it emphasized the finding by stating that Oklahoma's advertising ban would place cable TV operators in a particularly difficult position.

The crux of this case is the crushing economic burden, the technical infeasibility and the illegality under federal law to delete advertising from a multitude of program signals that--

William J. Brennan, Jr.:

What is the technical difficulty?

Brent N. Rushforth:

--The technical difficulty, Justice Brennan, is that the cable TV operators get no notice regarding the time or content of the advertising signals in their programming.

Contrary to broadcasters, cable TV operators pick up signals as they find them over the air or over satellite, and they receive no notice of advertising.

Sandra Day O'Connor:

Well, if network television producers can give advance notice, why can't the producers of the cable broadcast do the same?

Brent N. Rushforth:

There is a very marked difference, your honor, between cable TV operators and broadcasters.

An affiliate of a network station in Oklahoma receives a great deal of advance notice regarding the advertising that will be on that network feed from New York City or wherever it comes from.

Not only do they receive notice, but through the affiliation agreement with the network, they have control over the signal.

They can delete advertising as they see fit, and further, they have--

Sandra Day O'Connor:

Is there any technical reason, I guess I am asking, why the producers of the cable broadcast couldn't do the same for their... for the stations that use their broadcasts?

Brent N. Rushforth:

--By not receiving notice, Your Honor, the cable TV operator would be required to station one employee at some monitor for each signal coming in to the cable TV operator.

There are a multitude of signals coming--

Sandra Day O'Connor:

Is there any technical reason why the cablecasters couldn't furnish that information to you, to your client?

Brent N. Rushforth:

--There is no technical reason why they could not furnish the information, Your Honor.

If the cablecasters were to give notice to cable TV operators, nevertheless, the cable TV operators would be in a position, having a multitude of signals coming in simultaneously, of placing an employee at each of those signals, one for each signal, and without full notice of what is in that signal, it cannot be done automatically.

Sandra Day O'Connor:

There is no encoding mechanism that could be employed?

Brent N. Rushforth:

Your Honor, the technology is simply not there.

This must be done manually.

We are dealing here in terms of seconds, not in terms of minutes, and unless they have full notice as to what is in the advertising, when it is going to come precisely, then they will have to wait a number of seconds before they even know what is in the advertising, and they would have to delete it manually.

Sandra Day O'Connor:

Does the cable operator have to participate in the compulsory licensing system provided by the Copyright Act?

Or can you opt out?

Brent N. Rushforth:

Well, if the cable TV operator wishes to carry programs from television stations, then as Congress found, the only feasible way for the cable TV operator to do that is to participate in the compulsory licensing scheme.

I wish to emphasize here that many of the TV signals picked up by cable television operators are so-called reluctant television stations.

There is no economic incentive for television stations to cooperate with cable TV operators, and indeed many of them have expressly stated they will not so cooperate.