City of Los Angeles v. Preferred Communications, Inc.

PETITIONER: City of Los Angeles
RESPONDENT: Preferred Communications, Inc.
LOCATION: March Air Force Base

DOCKET NO.: 85-390
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 476 US 488 (1986)
ARGUED: Apr 29, 1986
DECIDED: Jun 02, 1986

ADVOCATES:
Edward J. Perez - on behalf of the Petitioner
Harold R. Farrow - on behalf of the Respondent

Facts of the case

Question

Media for City of Los Angeles v. Preferred Communications, Inc.

Audio Transcription for Oral Argument - April 29, 1986 in City of Los Angeles v. Preferred Communications, Inc.

Warren E. Burger:

The Court will hear arguments first this morning in City of Los Angeles against Preferred Communications, Incorporated.

Mr. Perez, you may proceed whenever you are ready.

Edward J. Perez:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is before you today as a result of a decision by the Ninth Circuit Court of Appeals.

In that decision the Ninth Circuit held that the City of Los Angeles may not limit access to its public utility poles, public utility ducts, by way of an option process, if space permits further construction.

Before I commence argument, Your Honors, I would like to state the key points of my argument and then briefly summarize the facts.

This case is really only about digging up streets and hanging coaxial cable on utility poles.

Point number two, our process is not unique.

It has evolved over two decades' worth of experience, in approximately 7,000 other situations in this country.

The proper First Amendment analysis is the third point.

We believe it is under the public forum doctrine.

The public forum doctrine says that in a non-public forum mode, nondiscriminatory regulations need only be reasonable.

Very briefly, Your Honors, the key facts of this case are, the City, pursuant to California state law, requires a cable operator to obtain a franchise.

The City awards these franchises through a competitive bid process, and we select only one franchisee.

In October of 1982, the City of Los Angeles opened up the South Central area for a competitive bid process.

Preferred Communications, the respondent in this case, did not participate in that competitive bid process.

Instead, Preferred Communications informally requested that the City grant them a franchise.

The City denied that informal request, and Preferred Communications filed a lawsuit in the district court in Los Angeles.

They alleged antitrust violations, and they also alleged First Amendment claims.

The City of Los Angeles filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12-B-6.

We allege they failed to state sufficient facts to constitute a claim upon which relief may be granted.

The district court dismissed... granted on motions the district court found there is no constitutional right to construct the cable television system on government property without government permission.

Preferred Communications appealed to the Ninth Circuit.

The Ninth Circuit sustained the motion with regard to the antitrust claims, but reversed on First Amendment grounds.

We then appealed to this Court, and this Court denied our appeal but granted certiorari.

The first point, Your Honors, is that we really are dealing with the construction of a cable system.

The respondent has raised many issues which may be important and may sometime have to be decided by this Court, but today the only issue is, do they have a constitutional right to construct the system on government property.

This is not a case--

Byron R. White:

How does that... how was it anticipated that the franchisee in this area would have constructed the system?

Has it been constructed?