Washington Law Review


In Preferred Communications, Inc. v. City of Los Angeles, the Ninth Circuit became the first circuit to limit, on first amendment grounds, a city's ability to deny a cable television company access to a local market. The Supreme Court's resolution of issues raised in Preferred Communications will have far-reaching impact, particularly with regard to the government's power to minimize the impact of cable television systems on government property and eliminate economic waste through duplicative service. This Note will examine the Ninth Circuit's use of the public forum doctrine in determining Los Angeles' power to restrict the use of its utility poles by potential cable operators. The Note will analyze the court's evaluation of the first amendment rights of cable operators as well as the court's evaluation of the importance of several government justifications for regulating the number of cable systems it will allow to operate within a geographic area. The Note concludes that the result reached by the Ninth Circuit is correct, but that due to limitations imposed by the procedural posture of the case, the court's holding provides limited guidance for future courts and litigants. The Note also concludes that the Supreme Court should reach the same result as the Ninth Circuit and should take the opportunity to provide guidance to courts on the matters of both the first amendment interests of cable operators and regulatory interests of government. Finally, the Note recommends that Congress amend the leased channel access provisions of the Cable Communications Policy Act of 19843 to allow local governments flexibility in granting exclusive cable franchises consistent with first amendment values.

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