The opinion of the court was delivered by: THOMAS PENFIELD JACKSON
Plaintiffs are cable television system owner/operators and programmers. Defendants are the United States and the Federal Communications Commission ("FCC"), the agency to which enforcement of the Acts is committed.
A three-judge district court has been convened, as the 1992 Cable Act itself requires, to consider a consolidated general challenge to Sections 4 and 5 of that Act, with hearing on the merits scheduled for March 4, 1993, as to those two sections. These two cases are presently before this single-judge district court on plaintiffs' motions for preliminary injunctive relief with respect to much of the remainder of the two statutes also alleged to be unconstitutional. Specifically, the plaintiffs pray that the defendants be enjoined pendente lite from implementing or enforcing sections 3, 7(b)(4)(B), 7(c), 9, 10(d), 11, 15, 19, 24, and 25 of the 1992 Cable Act, and Sections 611 and 612 of the 1984 Cable Act.
The federal defendants raise a threshold issue as to the jurisdiction of this Court, and oppose the preliminary injunction sought on the ground that the plaintiffs have satisfied none of the elements requisite to a meritorious application for a preliminary injunction. For the reasons hereinafter stated, this Court concludes that it has jurisdiction to entertain these motions, but it denies all applications for preliminary relief.
The federal defendants contend that jurisdiction over several of the plaintiffs' claims, specifically, those challenging sections 3, 9, 11(c), 19 and 25 of the Cable Act of 1992, resides exclusively in the court of appeals in accordance with Telecommunications Research and Action Center v. FCC, 242 U.S. App. D.C. 222, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC"), in which the D.C. Circuit held that the court of appeals is deemed to have exclusive jurisdiction, pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (1988), to address a complaint of agency inaction if the court of appeals is also statutorily vested with exclusive jurisdiction to review any final action taken by the agency. The court of appeals reasoned that its assertion of exclusive jurisdiction while a matter is pending before an agency is necessary to protect its ultimate power of review, because an interim disposition in the district court could delay or deprive the court of appeals altogether of the opportunity for final review when the agency has finally acted. TRAC, 750 F.2d at 75-79.
The defendants here observe that, as in TRAC, ultimate review of FCC orders issued pursuant to the Cable Act of 1992 rests exclusively with the court of appeals. See 47 U.S.C. § 402(a) (1988) (referencing 28 U.S.C. § 2342 (1988)). The defendants therefore contend that, under TRAC, this Court may not consider those of the plaintiffs' claims challenging provisions of the Acts which contemplate FCC action, because a finding here that a provision of the Act is unconstitutional would perforce foreclose any agency action, thus depriving the court of appeals of the ability to review any orders the agency might otherwise have issued pursuant to that provision.
This reasoning ignores, however, the jurisdiction of the court of appeals to review decisions of this Court, as well as those of the FCC, including those decisions which would have the effect of either prohibiting or postponing action by the FCC pursuant to the Cable Acts, see 28 U.S.C. §§ 1291, 1292(a)(1). Moreover, the D.C. Circuit has never held in subsequent cases that TRAC precludes a district court from hearing a constitutional challenge to an agency's enabling act merely because the court of appeals ultimately has exclusive jurisdiction over the agency's actions taken pursuant to that act. TRAC itself concerned an Administrative Procedure Act challenge to inaction by an agency, pursuant to legislation the validity of which was never in dispute, as have the subsequent court of appeals decisions following TRAC.4 In contrast, this case involves a direct constitutional-challenge to congressional legislation, which, if plaintiffs are correct, could never justify future agency action to implement or enforce it. In the absence of an express holding by the court of appeals to the contrary, this Court must conclude that, notwithstanding TRAC, district courts still have original jurisdiction to consider plaintiffs' constitutional claims such as those brought here. See Ticor Title Ins. Co. v. FTC, 625 F. Supp. 747 (D.D.C. 1986), aff'd on other grounds, 259 U.S. App. D.C. 202, 814 F.2d 731 (D.C. Cir. 1987).
To obtain a preliminary injunction, an applicant must prove that "(1) it has a substantial likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest will be furthered by the injunction." National Treasury Employees Union v. United States, 288 U.S. App. D.C. 398, 927 F.2d 1253, 1254 (D.C. Cir. 1991) (citations omitted). A significant failure of proof with respect to any element may warrant the refusal of pendente lite relief and require the movant to await the conclusion of the case. See id. at 1254-55. This Court concludes that plaintiffs have failed, at this point, to demonstrate a level of irreparable harm of sufficient imminence and moment to require the issuance of a preliminary injunction on any of their claims.
Although a First Amendment deprivation presumptively causes irreparable injury, see Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), the record clearly reveals that no deprivation of defendants' making is presently occurring, and none is likely to occur before the merits of this controversy are decided. To employ a seasonal metaphor, the threat to the plaintiffs at present is spectral. They are haunted by an apparition of regulations yet to come, the shape of which remains to be made manifest. There will be time enough when it is, and when the measure of its menace can be taken, to exorcise it if it truly represents the constitutional evil the plaintiffs perceive.
Restrictions on Vertically Integrated Programmers
The Cable Act of 1992 directs the FCC to promulgate regulations governing the conduct of "vertically integrated programmers," i.e., those programmers in which a system operator has an "attributable interest." Section 19 directs the FCC to prohibit discrimination by vertically integrated programmers in the prices, terms and conditions of delivery of programming to programming distributors. It also directs the FCC to limit the ability of vertically integrated programmers to enter into exclusivity arrangements with system operators. Section 11 directs the FCC to establish limits on the number of channels that vertically integrated programmers can occupy on cable systems.
The plaintiffs, as vertically integrated programmers, challenge these provisions under the First Amendment, contending that the government has singled them out, a single narrow class of "speakers," for discriminatory treatment, has reduced their relative "voice" vis a vis other speakers, and has prevented them from reaching their entire audience of choice. None of these asserted injuries, however, has or can occur until the FCC adopts implementing regulations, enters orders for compliance, and imposes sanctions for noncompliance. Although it is certainly more than speculative that the FCC ultimately will take action consistent with the 1992 Cable Act, it has not yet done so, and the form the action ultimately will take is conjectural. Absent evidence of present injury, this Court will not enjoin implementation of a duly promulgated Act of Congress until a constitutional imperative for doing so is indubitable.
Limitations on Operators' Activities
Section 11 directs the FCC to promulgate rules and regulations establishing limits on the number of subscribers that a cable system operator can reach, and to "consider the necessity and appropriateness" of promulgating regulations limiting the ability of ...