December 07, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF
WASHINGTON -- The Clinton administration ran into what looked like a wall of opposition in the Supreme Court yesterday to its plea to keep local telephone companies from offering cable-TV programs to their customers.
During a 70-minute hearing, each of the nine justices voiced skepticism about a Justice Department lawyer's claims that the government should be able to retain the ban on programming originated and transmitted by local telephone systems. The administration says the ban is needed to head off abuse by the telephone companies.
A federal appeals court a year ago struck down a ban, written into the 1984 Cable Communications Policy Act, against programming over which a local phone company has editorial control and wishes to send over its own lines. The appeals court ruled that the ban violated the First Amendment's protection of free speech.
The Federal Communications Commission and the cable-TV industry have urged the Supreme Court in separate appeals to rescue the law. The cable industry fears the competitive challenge it would face from local telephone systems.
Congress is considering giving local telephone systems much of what they won in the appeals court decision. That would be a legislative solution, but it would not be as strong as constitutional protection.
The Supreme Court cases remain important because it is not clear whether congressional negotiators will agree on the wording of a new telecommunications bill, or whether any compromise could survive a likely veto by President Clinton. The telecommunications bill basically would allow cable TV and telephone companies to compete in each other's businesses.
The court chose not to wait for the outcome of congressional action. Its hearing yesterday featured a buffeting of the lawyer for the administration and the FCC, Deputy Solicitor General Lawrence G. Wallace.
Early in Mr. Wallace's argument, Justice Clarence Thomas suggested that the cable-TV industry had grown so strong that it did not need protection from a new competitor. "Are we just talking about monopolists vs. monopolists?" Justice Thomas asked.
The government attorney sought to salvage the restriction on cable programming by phone companies by arguing that the FCC is willing to grant individual companies waivers from the total ban. Justice Antonin Scalia, however, said that meant the ban was no longer needed.
Justice Stephen G. Breyer criticized the main argument the FCC has used for maintaining the ban: that telephone companies would secretly pass on to their telephone customers some of their costs of their cable-TV programming.
Justice Anthony M. Kennedy told Mr. Wallace that the ban did not appear to satisfy prior court rulings on the First Amendment, because the FCC's policy on waiving the ban was "standardless and very ambiguous."
The telephone companies' lawyer, Laurence C. Tribe, a Harvard law professor, found the court far more friendly. He lambasted the 1984 law, saying it "perversely targets one thing and one thing only: speech." The ban, he said, dealt only with the editing function that telephone companies would be exercising when they decided what programs to offer.
