Phone firm takes cable TV battle to court

December 18, 1992|By New York Times News Service

WASHINGTON -- The accelerating turf war between cable television and telephone moved into the courtroom yesterday, as Bell Atlantic Corp. filed a suit charging that its right to free speech was violated by a law that blocks telephone companies from owning cable television programming.

Bell Atlantic, which owns local telephone companies throughout the mid-Atlantic region, has been the most aggressive of the seven regional Bell companies in seeking to compete head-to-head with cable television companies.

Under current law, telephone companies are allowed to provide television programming over their networks, but are not allowed to own such services. That deprives them of a substantial money-making opportunity, and most telephone companies argue that it makes it hard for them to invest in the advanced fiber-optic technology needed to make such services available.

Cable companies, which enjoy monopoly franchises in almost every city, have adamantly defended the prohibition on telephone companies, on the ground that local phone companies can use their own monopolies to stifle competition.

The move by Bell Atlantic, which is being represented by Laurence H. Tribe, a professor at the Harvard Law School, adds to the tangled controversy over continued restrictions on local telephone companies.

The Bell companies are currently embroiled in a political battle in Congress, where lawmakers are weighing legislation that would bar local phone companies from owning the providers of information services.

The Bell companies had been barred from owning such services, like those that provide news reports, stock quotes and classified advertising, under the antitrust consent decree that broke up the Bell System in 1984. The U.S. Court of Appeals in Washington lifted the restriction in October 1991, and newspaper publishers and other information companies are pushing Congress to reinstate the ban.

The new legal challenge by Bell Atlantic is over a provision of the Cable Act of 1984, which prohibits a telephone company from owning a cable television system in a city where it provides phone service.

The provision was included because lawmakers feared that telephone companies would use their dominant presence in telephone service to stifle competition and perhaps hinder the development of cable television.

In a suit filed yesterday in U.S. District Court in Alexandria, Va., Bell Atlantic argued that the law violated its First Amendment right to free speech and its Fifth Amendment right to equal

protection.

It also noted that the Federal Communications Commission and the U.S. Justice Department under President Bush had argued that the prohibition should be lifted.

"It's a pretty simple case," said John Thorne, assistant general counsel for Bell Atlantic. "The Supreme Court has already said that video programming is a type of speech. Video is the most popular form of speech, and the First Amendment of the Constitution says Congress shall make no law abridging freedom of speech."

In its petition, Bell Atlantic said it wanted to build an advanced communications network for the city of Alexandria, to provide hundreds of channels of television over fiber-optic lines, as well as several new two-way communication services.

Experts in communications law said the arguments raised by Bell Atlantic had considerable merit, but they said they were unsure whether the company would prevail.

Cable television companies have invoked First Amendment rights on several occasions to fight federal restrictions that require them to carry the programming of over-the-air television broadcasters.

But Stuart Brotman, a senior fellow at the Annenberg Washington Program for Communications, said that in the past, courts had been willing to balance antitrust considerations with concerns about preserving free speech.

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