The opinion of the court was delivered by: STEPHEN F. WILLIAMS
Plaintiffs are cable television programmers and system operators who challenge the constitutionality of various sections of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460. The questions immediately before us are whether this three-judge court, constituted pursuant to § 23 of the Cable Act and 28 U.S.C. § 2284, must or may exercise jurisdiction over all the First Amendment and other constitutional claims that certain plaintiffs have filed attacking provisions of the Act, or only over challenges to §§ 4 and 5, the ones identified by Congress in § 23 as calling for use of a three-judge court; and, if the court may (but need not) exercise jurisdiction, whether it should do so. We conclude that the court at most may have discretion to entertain the attacks on parts of the Act other than §§ 4 and 5; assuming it has such discretion, we believe that prudential factors argue for our exercising it against jurisdiction.
The 1992 Cable Act contains 28 sections, of which perhaps 25 may be viewed as substantive, out of which some 14 are attacked by one or more parties. To give an idea of the breadth of the challenges, we here list the challenged sections, identifying them by their number and caption in the Act: Section 3, Regulation of Rates; Section 4, Carriage of Local Commercial Television Signals; Section 5, Carriage of Noncommercial Stations; Section 6, Retransmission Consent for Cable Systems; Section 7, Award of Franchises; Promotion of Competition; Section 9, Leased Commercial Access; Section 10, Children's Protection From Indecent Programming on Leased Access Channels; Section 11, Limitations on Ownership, Control, and Utilization; Section 15, Notice to Cable Subscribers on Unsolicited Sexually Explicit Programs; Section 19, Development of Competition and Diversity in Video Programming Distribution; Section 24, Limitation on Franchising Authority Liability; and Section 25, Direct Broadcast Satellite Service Obligations. This summary understates the scope of the plaintiffs' additional claims, as they often launch attacks on more than one subsection of a single section.
Section 23 of the Act contains explicit provision for review of constitutional claims against §§ 4 and 5, amending § 635 of the Communications Act of 1934, 47 U.S.C. § 555, to add the following subsection (c):
(1) Notwithstanding any other provision of law, any civil action challenging the constitutionality of section 614 [§ 4] or 615 [§ 5] of this Act or any provision thereof shall be heard by a district court of three judges convened pursuant to the provisions of section 2284 of title 28, United States Code.
(2) Notwithstanding any other provision of law, an interlocutory or final judgments decree, or order of the court of three judges in an action under paragraph (1) holding section 614 [§ 4] or 615 [§ 5] of this Act or any provision thereof unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.
The focus of § 23 is clearly on judicial review of §§ 4 and 5, which require cable companies to carry the signals of broadcast stations and are known as the "must carry" provisions. Original jurisdiction of the three-judge court is tied to constitutional challenges to those sections, as is review as a matter of right in the Supreme Court.
There are two lines of argument as to why the three-judge court should exercise jurisdiction over constitutional challenges to sections other than the must-carry provisions. First, a literal reading of § 23 provides a three-judge court for "any civil action" challenging § 4 or § 5, so that three-judge treatment follows automatically for whatever issues the plaintiffs (or, for that matter, any other party) may manage to bundle within such an action under the generous provisions of the Federal Rules of Civil Procedure as to joinder of claims. Second, plaintiffs assert that we have discretion to take supplemental jurisdiction over claims related to the §§ 4 and 5 challenges, and that prudential considerations argue for doing so. We address the two theories in that order.
The literal reading of § 23 is supported by the traditional assumption that Congress has selected every word with exquisite care: if it had wished to restrict our jurisdiction to §§ 4 and 5, it could have referred to "any claim" challenging the must-carry provisions, rather than to "any civil action" bringing such a challenge. In assessing this argument, we bear in mind that a parallel one applies to subsection (2), which provides for appeal of right to the Supreme Court for any "interlocutory or final judgment, decree, or order [in a three-judge action under subsection (1)] holding [§ 4 or § 5] unconstitutional". Thus, depending upon how this court chose to package its decision on the other issues with its decision on §§ 4 and 5, the literal reading of § 23 could send a slew of marginally related claims straight into the mandatory jurisdiction of the Supreme Court.
The difficulty with the literal reading is that it imputes to Congress an intent to saddle the judicial system with rather heavy burdens for no apparent purpose. Section 23 clearly manifests an interest in prompt resolution of any constitutional doubts about §§ 4 and 5 -- at the highest level if the lower-court decision should be adverse. That there would be doubts on the must-carry provisions was obvious. The Federal Communications Commission had twice promulgated must-carry rules that the court of appeals for our circuit had struck down as violations of the First Amendment, with the Supreme Court denying certiorari. Quincy Cable TV, Inc. v. FCC, 248 U.S. App. D.C. 1, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169, 90 L. Ed. 2d 977, 106 S. Ct. 2889 (1986); Century Communications Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032, 100 L. Ed. 2d 602, 108 S. Ct. 2014, 108 S. Ct. 2015 (1988). Congress was of course aware of these decisions, see S. Rep. No. 102-92, 53 (1991), and, for anyone who missed the issue, President Bush rested his veto in part on his belief that the must-carry provisions were unconstitutional, see 138 Cong. Rec. H11477 (1992). Thus there was ample reason for special treatment of §§ 4 and 5. Yet none of the parties, many of them intimately involved in the evolution of the Act, suggests any reason why Congress might have wanted similar treatment for any issue that parties might happen to attach to a suit on § 4 or § 5.
Moreover, the omnibus reading of § 23 inflicts considerable burdens on the federal judicial system. Having three judges rule on every single procedural or substantive issue that may arise triples the normal cost of a case for the district court. In fact, Congress has in recent years shrunk the jurisdiction of three-judge courts drastically, Pub. L. No. 94-381, §§ 1, 2, 90 stat. 1119 (1976) (repealing 28 U.S.C § 2282), precisely for the purpose of relieving the federal courts of the resulting burden, see S. Rep. No. 94-204, 3 (1975). And the literalist mode of interpretation would visit a similar reverse windfall on the Supreme Court, despite recent congressional efforts to trim its mandatory jurisdiction. Pub. L. No. 100-352, § 1, 102 Stat. 662 (1988) (repealing 28 U.S.C. § 1252). See also S. Rep. No. 94-204, 3-4 (1975) (noting that direct appeal from three-judge courts erodes the Supreme Court's control over its workload). As the burden on both lower federal courts and the Supreme Court imposed by the broad reading of § 23 would in this context be a distinctly "odd result", see ...