TIMES MIRROR CO. v. DIV. OF PUBLIC UTILITY CONTROL

12039) (12045

192 Conn. 506 (1984) | Cited 12 times | Supreme Court of Connecticut | March 27, 1984

The sole issue in this appeal is whether theFederal Communications Commission has preemptedstate regulation of cross-ownership of cable televisionstations and newspapers. The present proceeding wasinitiated by a motion filed by the Division of ConsumerCounsel (DCC) asking the Department of Public UtilityControl (DPUC) to investigate the suitability of controlby the Times Mirror Company (Times Mirror) oftwo Connecticut community antenna television (CATV)systems. The motion was based upon Times Mirror'santicipated purchase of a local newspaper, the HartfordCourant (Courant). The DPUC, after full hearings,determined on March 7, 1980, that the cross-ownershipof cable television stations and a newspaper in the samegeographic area was not in the public interest andordered revocation of the two CATV franchises unlessTimes Mirror divested itself of its ownership of theCourant by April 1, 1981. This order was stayed pendingjudicial review. The plaintiffs, Times Mirror andits subsidiaries,1 successfully appealed to the trial court

[192 Conn. 508]

     from the decision of the DPUC. That court concludedthat the DPUC order was invalid because of preemptionby the federal regulatory scheme of the FederalCommunications Commission (FCC). Upon the grantingof certification by this court, the defendants DPUCand DCC each took a further appeal here.2 We finderror and remand for further proceedings.3

There is no dispute about the facts that pertain tothis appeal. Since early in 1979, Times Mirror hasowned all of the stock of Communications Properties,Inc. (CPI). CPI, in turn, owns 90 percent of the votingstock of Hartford CATV, Inc. (HCTV) and, through awholly owned subsidiary, 95 percent of the voting stockof Telesystems of Connecticut, Inc. (TOC). In accordancewith General Statutes 16-331,4 the DPUC had

[192 Conn. 509]

     previously granted HCTV and TOC separate franchisesto provide cable television, the former for the townsof Hartford, West Hartford, East Hartford, Windsor,Bloomfield and Simsbury, and the latter for the townsof Meriden, Southington and Cheshire. When theDPUC approved acquisition of CPI by Times Mirrorin 1978,5 the DPUC expressly noted that Times Mirrordid not, at that time, own or control any newspaper,radio or television stations in the franchise areasof HCTV or TOC. The DPUC specifically ordered TimesMirror thereafter to inform the commission "of any andall contemplated acquisitions of Connecticut media."

[192 Conn. 510]

     On July 12, 1979, Times Mirror notified the DPUC ofits anticipated purchase of the Hartford Courant, anewspaper with extensive circulation throughout thestate of Connecticut, including significant circulationin the same market areas served by the two cable franchises.Subsequent to notification of the DPUC, TimesMirror completed its acquisition of the Courant.

Connecticut has regulated cable television systems,formally known as community antenna television systems,since the enactment in 1963 of General Statutes16-330 et seq. The legislature has empowered theDPUC and predecessor commissions6 to grant CATVfranchises upon a finding of public convenience andnecessity, and has declared a CATV system to be a publicservice company. Connecticut Television, Inc. v. PublicUtilities Commission, 159 Conn. 317, 330,269 A.2d 276 (1970). For present purposes, we may assume thatthe DPUC has plenary authority to consider the suitabilityof cross-ownership by Times Mirror of HCTV andTOC on the one hand, and the Courant on the other,unless this state's regulation of cross-ownership is preemptedby federal action taken by the FCC.

The question of preemption is one of federal law,arising under the supremacy clause of the United Statesconstitution. U.S. Const., art. VI.7 As the United StatesSupreme Court has recently reiterated, "state law canbe preempted in either of two general ways. If

[192 Conn. 511]

     Congress evidences an intent to occupy a given field, anystate law falling within that field is preempted. [PacificGas & Electric Co. v. State Energy Resources Conservation& Development Commission, 461 U.S. 190, 203,103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)]; Fidelity FederalSavings & Loan Ass'n v. de 1a Cuesta, 458 U.S. 141,153 [102 S.Ct. 3014, 73 L.Ed.2d 664] (1982); Ricev. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67S.Ct. 1146, 91 L.Ed. 1447] (1947). If Congress has notentirely displaced state regulation over the matter inquestion, state law is still preempted to the extent itactually conflicts with federal law, that is, when it isimpossible to comply with both state and federal law,Florida Lime & Avocado Growers, Inc. v. Paul,373 U.S. 132, 142-43 [83 S.Ct. 1210, 10 L.Ed.2d 248,reh. denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d1082] (1963), or where the state law stands as anobstacle to the accomplishment of the full purposes andobjectives of Congress. Hines v. Davidowitz, 312 U.S. 52,67 [61 S.Ct. 399, 85 L.Ed. 581] (1941)." Silkwoodv. Kerr-McGee Corporation, 464 U.S. 238, 248, 104S.Ct. 615, 78 L.Ed.2d 443 (1984). Regulations promulgatedby federal administrative agencies, if within theagency's authorized scope of discretion, have the samepreemptive effect as acts of Congress. Fidelity FederalSavings & Loan Assn. v. de 1a Cuesta, 458 U.S. 141,153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

In the determination of whether state law has beenpreempted, the Supreme Court of the United Stateshas in recent years retreated from its earlier view thatthere was no room for any state regulation of mattersalready regulated by the federal government. SeeTribe, American Constitutional Law, pp. 377-79. Statelaw is today preempted "`only to the extent necessaryto protect the achievement of the aims of' the federallaw." De Canas v. Bica, 424 U.S. 351, 357-58 n. 5, 96S.Ct. 933, 47 L.Ed.2d 43 (1976); Merrill Lynch,

[192 Conn. 512]

     Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127,94 S.Ct. 383, 38 L.Ed.2d 348 (1973). The governingfederal principle now is that "federal regulation of afield of commerce should not be deemed preemptiveof state regulatory power in the absence of persuasivereasons - either that the nature of the regulated subjectmatter permits no other conclusion, or that theCongress has unmistakably so ordained." Florida Lime& Avocado Growers, Inc. v. Paul, supra, 142. "[C]ourtsshould not readily infer that Congress has deprivedstates of the power to act on interests `deeply rootedin local feeling and responsibility' which only peripherallyconcern an area controlled by nonconflicting federallegislation. San Diego Building Trades Council v.Garmon, 359 U.S. 236, 243-44, 79 S.Ct. 773, 3 L.Ed.2d775 (1959)." Shea v. First Federal Savings & LoanAssn. of New Haven, 184 Conn. 285, 294, 439 A.2d 997(1981); see also Connecticut Television, Inc. v. PublicUtilities Commission, 159 Conn. 317, 338-39,269 A.2d 276 (1970).

In order to determine whether Connecticut regulationof cable television cross-ownership has been preemptedby the action of the FCC, we must decide, inaccordance with these principles, whether Congress hasevidenced an intent to occupy the field, or whether stateregulation conflicts with federal regulation. It is usefulto examine these two prongs of preemption law separately.

The question of the extent to which cable televisionis exclusively in the federal regulatory domain has notoften been addressed. The Supreme Court of the UnitedStates has held that the Communications Act of 1934,47 U.S.C. § 151 et seq., confers upon the FCC "a circumscribedrange of power to regulate cable television";FCC v. Midwest Video Corporation, 440 U.S. 689,696, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). TheFCC itself, in its principal over-all review of cable television,

[192 Conn. 513]

     has acknowledged that its jurisdiction is concurrentwith that of state and local governments andhas sought to implement what it has characterized as"a deliberately structured dualism." Cable TelevisionReport and Order, 36 F.C.C.2d 143, 207 (1972).Because regulation of cable television is not an areaof the law inherently requiring national uniformity, inthe absence of express congressional preemption, weheld in 1970, relying on TV PIX, Inc. v. Taylor,304 F. Sup. 459, 464-65 (D. Nev. 1968), aff'd without opinion,396 U.S. 556, 90 S.Ct. 749, 24 L.Ed.2d 746 (1970),that the FCC had not acted to assert exclusive jurisdictionover cable television. Connecticut Television,Inc. v. Public Utilities Commission, supra, 340.

The plaintiffs urge us nonetheless to find a federalintent to occupy the field, because they argue that therelevant field is not cable television as a whole butrather media cross-ownership. Identification of theappropriate field is a question of some difficulty.8 InPacific Gas & Electric Co. v. State Energy ResourcesConservation & Development Commission, 461 U.S. 190,212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), thecourt noted that Congress had preserved dual federal stateregulation of nuclear-powered electricity, but hadcompletely occupied the field of nuclear safety concerns.The court held that "[w]hen the federal governmentcompletely occupies a given field or an identifiableportion of it . . . the test of preemption is whether`the matter on which the state asserts the right to actis in any way regulated by the federal government.'"Id., quoting Rice v. Santa Fe Elevator Corporation,supra, 236.

[192 Conn. 514]

We must therefore determine whether media cross-ownershipinvolving cable television is a field "or anidentifiable portion of it', which expressly or inferentiallyhas been reserved for federal regulation. This isan issue which the trial court did not directly address,having found preemption under the second prong ofpreemption law.

It is undisputed that the FCC has regulated mediacross-ownership in a number of specific circumstances.The FCC has, in areas other than cable television,imposed limitations on cross-ownership of broadcaststations, of broadcast stations and television stations,and of broadcast stations, television stations andnewspapers, but left unregulated cross-ownership oftelevision stations and weekly newspapers.47 C.F.R. § 73.35, 73.240(a), 73.636(a)(2) (1982). For cable, theFCC has prohibited cross-ownership of cable systemsand television stations, cable systems and television networks,and cable systems and telephone companies.47 C.F.R. § 63.54, 63.57, 76.501 (1982).

The FCC has furthermore considered whether toregulate cable-newspaper cross-ownership but determined,in 1975, "to issue no rules at this time prohibitingor restricting such cross-interests." First Report(Docket No. 18891), 52 F.C.C.2d 170, 171 (1975). In thatreport, the FCC stated that it proposed to postpone afinal determination "until such time as we find abusivetrends developing or have more conclusive informationas to the potential harms that may be involved . . . ."Id. The report concluded by retaining jurisdiction "forsuch future consideration as developments in the industryor our own analysis suggest is necessary." Id., 172.

The FCC's decision to leave cable-newspaper cross-ownershipunregulated for the time being does notnecessarily signal an intent to open the field of cross-mediaownership to state regulation. In 1971, when the

[192 Conn. 515]

     FCC first attempted to draw a line demarcating federalfrom state control over cable television, it statedthat "federal regulation is clearly indicated in suchareas as signals carried, technical standards, programorigination, cross-ownership of cable and other media,and equal employment opportunities." CommissionProposals for Regulation of Cable Television, 31F.C.C.2d 115, 136 (1971). By 1975, however, the FCChad retreated from the categorical assumption of jurisdictionover media cross-ownership. In a reportintended to delineate those aspects of cable regulationthat came within the province of the commission andthose that were the responsibility of nonfederal officials,the FCC sought to distinguish "between reasonableregulations regarding use of the streets andrights-of-way and the regulation of the operationalaspects of cable communications. The former is clearlywithin the jurisdiction of the states and their politicalsubdivisions. The latter, to the degree excised, is withinthe jurisdiction of this Commission." (Emphasis added.)Report and Order (Docket No. 20272), 54 F.C.C.2d 855,861 (1975). This report, which postdated the decisionto leave cable-newspaper cross-ownership unregulated,expressly disavowed "the broad-brush approach consideredprior to our 1972 rules of total preemption andfederal licensing." Id., 863. Instead, it opted for subjectmatter preemption. The list of preempted subjectareas included "signal carriage, pay cable, leased channelregulations, technical standards, access, and severalaspects of franchise responsibility"; id., .863; but notmedia cross-ownership. The conclusion that this reportcounsels against inferential preemption of cross-mediaownership is confirmed by the express statement in asubsequent FCC case that "[i]t is not our intention topreempt the rights of the states to adopt cross-ownershipprohibitions as they see fit." Report andOrder (CC Docket No. 80-767), 88 F.C.C.2d 564, 577(1981), reconsid. denied, 91 F.C.C.2d 622 (1982).

[192 Conn. 516]

This history, combined with unresolved doubts aboutthe FCC's jurisdiction over cable-newspaper cross-ownership,9is far from persuasive that federal regulation,either of cable television in general or of mediacross-ownership in particular, has pervasively filled thefield. We agree, therefore, with the defendants thatthe action of the DPUC in this case has not been preemptedby federal occupation of the field.

Even if Congress has not given persuasive evidenceof its intent to occupy the field of cable television mediacross-ownership, Connecticut may still be barred, underthe second prong of preemption law, from taking actionthat actually conflicts with federal regulation. The questionthen becomes, as a first subset, whether it is impossibleto comply with both state and federal law, or, as asecond subset, whether state law stands as an obstacleto the accomplishment of the full purposes and objectivesof Congress. Silkwood v. Kerr-McGee Corporation,464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443(1984); Pacific Gas & Electric Co. v. State EnergyResources Conservation & Development Commission,461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752(1983). As the holdings of no preemption in these casesillustrate, we should not reach to find actual conflictif accommodation of both federal and state interestsis possible.

The plaintiffs do not contend that compliance withthe DPUC's rules on cable and newspaper cross-ownershipwould require them to violate outstandingFCC regulations. It is clearly possible for them to complywith both federal and state law.

[192 Conn. 517]

The plaintiffs do contend that the action taken by theDPUC stands as an obstacle to the accomplishment ofthe full purposes and objectives of the FCC. They claim,and the trial court held, that the decision by the FCCin 1975 to postpone a final determination about regulationof cable-newspaper cross-ownership, while retainingjurisdiction "for . . . future consideration"; FirstReport (Docket No. 18891), 52 F.C.C.2d 170, 172 (1975);is a determination that there shall be no such regulationby anyone. There is no doubt that when federallaw manifests a federal judgment that the absence ofregulation will best serve federal objectives, state regulationis preempted. Mobil Oil Corporation v. Dubno,492 F. Sup. 1004, 1010-11 (D. Conn. 1980), appeal dismissedin part and aff'd in part, 639 F.2d 919 (2d Cir.1981). While we agree with the principle upon whichthe trial court relied, we disagree with its applicabilityto the record of FCC regulation in this case.

As we noted in our discussion of preemption by occupationof the field, the FCC has retreated from itsearlier intention to keep within the federal regulatorydomain all issues relating to media cross-ownership.Id., 1010-11. If we examine the FCC decision to postponea final determination about regulation of cable newspapercross-ownership in this light, we must concludethat a federal policy of watchful waiting is notinconsistent with state experimentation with limitedcross-media regulation. As we held in Connecticut Television,Inc. v. Public Utilities Commission, 159 Conn. 317, 339-40,269 A.2d 276 (1970), FCC identification of a need forcontinued federal inquiry into media cross-ownership is notsufficient to establish federal preemption.

The plaintiffs argue that Connecticut Television, Inc.v. Public Utilities Commission is distinguishable fromthis case. They acknowledge that selection of a cablefranchisee is indeed a matter primarily within the control

[192 Conn. 518]

     of local officials.10 They concede that, in thefranchisee selection process, media cross-ownership mayappropriately be considered as one of several comparativefactors in choosing among competing franchiseapplicants. This was the factual background of ConnecticutTelevision. Connecticut Television, Inc. v. PublicUtilities Commission, supra, 333. The plaintiffs assert,however, that there is a significant distinction betweenfactors used to make a comparative choice, which fallwithin local control, and rules which establish an applicant'seligibility, over which the FCC, in their view,exercises exclusive jurisdiction. We find this argumentunpersuasive. We fail to see how there can be a logicaldistinction, for preemption purposes, between partialand total local prohibition of media cross-ownership.Furthermore, the record does not establish that theDPUC has adopted an outright ban on cable-newspapercross-ownership, since it permitted the plaintiff TimesMirror to acquire control over the plaintiff CATV systemsdespite Times Mirror's ownership of two newspaperslocated in Stamford and Greenwich.

We note finally that the FCC has not relied on impliedpreemption when it has intended to foreclose state andlocal regulatory activity. When the FCC determinedthat it would regulate the rates and the program contentof special pay cable programming, it statedexpressly that it had concluded that, "at this time, thereshould be no regulation of rates for such services atall by any governmental level." Clarification of theCable Television Rules and Notice of Proposed Rulemaking

[192 Conn. 519]

     and Inquiry (Docket Nos. 20018 et al.), 46 F.C.C.2d175, 199 (1974). A year later, the FCC reiterated thatit regarded its prior statements concerning the regulationof subscription operations "as preempting localregulation of rates as well as program content." FirstReport and Order (Docket No. 19554), 52 F.C.C.2d 1,67 (1974). Similarly, when dealing with cable televisionsubscriber rates, the FCC declared that it had "takenthe position that rates for subscription television programs,leased channels, advertising, and other auxiliaryservices should not be regulated at either the local,state, or federal levels at this time. . . . [T]he Commissionhas not only declined to regulate the rates forthese services but has preempted their regulation bystate and local authorities." Notice of Inquiry (DocketNo. 20767), 58 F.C.C.2d 915, 915-16 (1976). In the aptlanguage of the United States Court of Appeals for theSecond Circuit, "[t]he policy to preempt has beenshouted from the rooftops . . . ." Brookhaven CableTV, Inc. v. Kelly, 573 F.2d 765, 768 (2d Cir. 1978), cert.denied, 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372(1979).

We therefore conclude that there is no persuasive evidencethat the FCC intended, by its own deferment ofregulation of cable-newspaper cross-ownership, to precludelocal consideration of such cross-ownership in theaward or in the revocation of a cable franchise. In theabsence of such an intent to preempt, the action by theDPUC in this case is not an obstacle to the accomplishmentof the full purposes and objectives of Congress.

Our determination that the DPUC's order was notbarred by the federal law of preemption does not disposeof the plaintiffs' appeal from that order. Sincethere were other grounds of appeal that the trial courtdid not reach, those issues must now be litigated.

[192 Conn. 520]

There is error, the judgment is set aside, and the caseis remanded for further proceedings in accordance withthis opinion.

In this opinion the other judges concurred.

1. The plaintiffs are the Times Mirror Company, CommunicationsProperties, Inc., Telesystems of Connecticut, Inc., and Hartford CATV, Inc.Although the name of Communications Properties, Inc., has been changedto Times Mirror Cable Television, Inc., the parties have continued to referto this company as CPI, and we shall follow that convention. The two CATVsystems are generally referred to as TOC and HCTV.

2. Although there are technically two appeals, we shall treat themas one, since the same issue is presented in each.

3. In the appeal to the trial court, the plaintiffs raised numerousissues other than preemption which the trial court did not reach.

4. "[General Statutes] Sec. 16-331. CERTIFICATE OF PUBLICCONVENIENCE AND NECESSITY. MEETINGS WITH ADVISORY COUNCIL. (a) No person,association or corporation shall construct or operate a community antennatelevision system without having first obtained a certificate from thedepartment of public utility control certifying that public convenience andnecessity require the operation of such a service within the territoryspecified in such certificate. Notwithstanding the provisions of section33-286, the certificate shall authorize the holder thereof to occupy publichighways to the extent required to provide community antenna televisionsystem service. The certificate shall be issued only after writtenapplication for the same has been made to the department, accompanied by afee of fifty dollars, and public hearing has been held thereon. Nocertificate shall be sold or transferred without the approval of thedepartment. For due cause shown, the department may amend, suspend or revokeany such certificate. If a certificate is not exercised within two yearsfrom the date of issue, the department may revoke the certificate. Thedepartment may specify in the certificate at the time of issue and from timeto time thereafter such terms and conditions as the public interest mayrequire. The department may amend a certificate to include in the franchisemunicipalities which are not included in any other franchise, if thedepartment finds, after a hearing, that such an amendment is in the publicinterest and not unduly detrimental to the holder of the certificate. "(b) In determining whether a new certificate shall be granted or existingcertificate transferred, the department of public utility control shalltake into consideration the public need for the proposed service, thesuitability of the applicant or, if the applicant is a corporation, of itsmanagement, the financial responsibility of the applicant and the ability ofthe applicant to perform efficiently the service for which authority isrequested. In the case of an application filed on or after October 1, 1981,(1) if the applicant or an affiliate thereof is the holder of one or moreother certificates in the state, the department shall also consider thepossible adverse effects of increasing the concentration of ownership ofcommunity antenna television systems and related services, which wouldresult from granting the application and (2) suitability of the applicantshall include consideration of participating owners resident in the proposedservice area as well as involvement in local civic and community activities.In considering concentration of ownership the department shall take intoaccount the following factors: (A) Federal and state anti-trust and unfairtrade practices laws, regulations and policies; (B) concentration of mediaand editorial functions; and (C) the reduced ability of the department tomake comparisons with other certificate holders. "(c) An officer of a community antenna television company granted acertificate of public convenience and necessity in accordance with thissection shall, twice a year, arrange for and hold a meeting with theadvisory council established by regulation for the franchise area served bysuch company. The department shall designate an advisory council as anintervenor in any contested case before the department involving thecommunity antenna television company which the council is advising. Suchcompany shall provide to the chairperson of its advisory council a copy ofany report, notice or other document it files with the department."

5. DPUC approval of Times Mirror's acquisition of CPI was requiredbecause the DPUC views the transfer of 30 percent of the stock of a CATVsystem as a transfer of control of the system. See General Statutes 16-43.

6. The agency charged with supervision of cable television wasknown, until 1975, as the Public Utilities Commission. From 1975 to 1979,regulation was in the hands of the Public Utilities Control Authority.Public Acts 1975, No. 75-486, 1. Since 1979, the regulatory agency has beenthe Division of Public Utility Control within the Department of BusinessRegulation. Public Acts 1977, No. 77-614, 162.

7. Article VI of the constitution of the United States provides inpart: "This Constitution, and the Laws of the United States which shall bemade in Pursuance thereof; and all Treaties made, or which shall be made,under the Authority of the United States, shall be the supreme Law of theLand; and the Judges in every State shall be bound thereby, any Thing inthe Constitution or Laws of any State to the Contrary notwithstanding."

8. Definition of the field for preemption purposes raises some ofthe same difficulties that inhere in definition of the market for antitrustpurposes. "[M]arket definition issues have dominated the treatment ofmonopoly power in the leading [Sherman Act] 2 monopoly cases." II Areeda &Turner, Antitrust Law (1978) 533, p. 406 and also 528, pp. 385-88.

9. The DPUC has raised an issue, both in the trial court and in this

10. With regard to franchise standards, the FCC has expresslyregulated permissible franchise fees; see 47 C.F.R. § 76.31; buthas otherwiseleft to the local franchising process the promulgation of provisions aboutsuch matters as qualifications of a franchisee, the duration of a franchise,the speedy availability of franchise service and the accountability offranchisees for proper service. Recommendations by the FCC for regulation ofthese questions have been expressly designated as not mandatory. See notefollowing 47 C.F.R. § 76.31 (1982).

The sole issue in this appeal is whether theFederal Communications Commission has preemptedstate regulation of cross-ownership of cable televisionstations and newspapers. The present proceeding wasinitiated by a motion filed by the Division of ConsumerCounsel (DCC) asking the Department of Public UtilityControl (DPUC) to investigate the suitability of controlby the Times Mirror Company (Times Mirror) oftwo Connecticut community antenna television (CATV)systems. The motion was based upon Times Mirror'santicipated purchase of a local newspaper, the HartfordCourant (Courant). The DPUC, after full hearings,determined on March 7, 1980, that the cross-ownershipof cable television stations and a newspaper in the samegeographic area was not in the public interest andordered revocation of the two CATV franchises unlessTimes Mirror divested itself of its ownership of theCourant by April 1, 1981. This order was stayed pendingjudicial review. The plaintiffs, Times Mirror andits subsidiaries,1 successfully appealed to the trial court

[192 Conn. 508]

     from the decision of the DPUC. That court concludedthat the DPUC order was invalid because of preemptionby the federal regulatory scheme of the FederalCommunications Commission (FCC). Upon the grantingof certification by this court, the defendants DPUCand DCC each took a further appeal here.2 We finderror and remand for further proceedings.3

There is no dispute about the facts that pertain tothis appeal. Since early in 1979, Times Mirror hasowned all of the stock of Communications Properties,Inc. (CPI). CPI, in turn, owns 90 percent of the votingstock of Hartford CATV, Inc. (HCTV) and, through awholly owned subsidiary, 95 percent of the voting stockof Telesystems of Connecticut, Inc. (TOC). In accordancewith General Statutes 16-331,4 the DPUC had

[192 Conn. 509]

     previously granted HCTV and TOC separate franchisesto provide cable television, the former for the townsof Hartford, West Hartford, East Hartford, Windsor,Bloomfield and Simsbury, and the latter for the townsof Meriden, Southington and Cheshire. When theDPUC approved acquisition of CPI by Times Mirrorin 1978,5 the DPUC expressly noted that Times Mirrordid not, at that time, own or control any newspaper,radio or television stations in the franchise areasof HCTV or TOC. The DPUC specifically ordered TimesMirror thereafter to inform the commission "of any andall contemplated acquisitions of Connecticut media."

[192 Conn. 510]

     On July 12, 1979, Times Mirror notified the DPUC ofits anticipated purchase of the Hartford Courant, anewspaper with extensive circulation throughout thestate of Connecticut, including significant circulationin the same market areas served by the two cable franchises.Subsequent to notification of the DPUC, TimesMirror completed its acquisition of the Courant.

Connecticut has regulated cable television systems,formally known as community antenna television systems,since the enactment in 1963 of General Statutes16-330 et seq. The legislature has empowered theDPUC and predecessor commissions6 to grant CATVfranchises upon a finding of public convenience andnecessity, and has declared a CATV system to be a publicservice company. Connecticut Television, Inc. v. PublicUtilities Commission, 159 Conn. 317, 330,269 A.2d 276 (1970). For present purposes, we may assume thatthe DPUC has plenary authority to consider the suitabilityof cross-ownership by Times Mirror of HCTV andTOC on the one hand, and the Courant on the other,unless this state's regulation of cross-ownership is preemptedby federal action taken by the FCC.

The question of preemption is one of federal law,arising under the supremacy clause of the United Statesconstitution. U.S. Const., art. VI.7 As the United StatesSupreme Court has recently reiterated, "state law canbe preempted in either of two general ways. If

[192 Conn. 511]

     Congress evidences an intent to occupy a given field, anystate law falling within that field is preempted. [PacificGas & Electric Co. v. State Energy Resources Conservation& Development Commission, 461 U.S. 190, 203,103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)]; Fidelity FederalSavings & Loan Ass'n v. de 1a Cuesta, 458 U.S. 141,153 [102 S.Ct. 3014, 73 L.Ed.2d 664] (1982); Ricev. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67S.Ct. 1146, 91 L.Ed. 1447] (1947). If Congress has notentirely displaced state regulation over the matter inquestion, state law is still preempted to the extent itactually conflicts with federal law, that is, when it isimpossible to comply with both state and federal law,Florida Lime & Avocado Growers, Inc. v. Paul,373 U.S. 132, 142-43 [83 S.Ct. 1210, 10 L.Ed.2d 248,reh. denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d1082] (1963), or where the state law stands as anobstacle to the accomplishment of the full purposes andobjectives of Congress. Hines v. Davidowitz, 312 U.S. 52,67 [61 S.Ct. 399, 85 L.Ed. 581] (1941)." Silkwoodv. Kerr-McGee Corporation, 464 U.S. 238, 248, 104S.Ct. 615, 78 L.Ed.2d 443 (1984). Regulations promulgatedby federal administrative agencies, if within theagency's authorized scope of discretion, have the samepreemptive effect as acts of Congress. Fidelity FederalSavings & Loan Assn. v. de 1a Cuesta, 458 U.S. 141,153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

In the determination of whether state law has beenpreempted, the Supreme Court of the United Stateshas in recent years retreated from its earlier view thatthere was no room for any state regulation of mattersalready regulated by the federal government. SeeTribe, American Constitutional Law, pp. 377-79. Statelaw is today preempted "`only to the extent necessaryto protect the achievement of the aims of' the federallaw." De Canas v. Bica, 424 U.S. 351, 357-58 n. 5, 96S.Ct. 933, 47 L.Ed.2d 43 (1976); Merrill Lynch,

[192 Conn. 512]

     Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127,94 S.Ct. 383, 38 L.Ed.2d 348 (1973). The governingfederal principle now is that "federal regulation of afield of commerce should not be deemed preemptiveof state regulatory power in the absence of persuasivereasons - either that the nature of the regulated subjectmatter permits no other conclusion, or that theCongress has unmistakably so ordained." Florida Lime& Avocado Growers, Inc. v. Paul, supra, 142. "[C]ourtsshould not readily infer that Congress has deprivedstates of the power to act on interests `deeply rootedin local feeling and responsibility' which only peripherallyconcern an area controlled by nonconflicting federallegislation. San Diego Building Trades Council v.Garmon, 359 U.S. 236, 243-44, 79 S.Ct. 773, 3 L.Ed.2d775 (1959)." Shea v. First Federal Savings & LoanAssn. of New Haven, 184 Conn. 285, 294, 439 A.2d 997(1981); see also Connecticut Television, Inc. v. PublicUtilities Commission, 159 Conn. 317, 338-39,269 A.2d 276 (1970).

In order to determine whether Connecticut regulationof cable television cross-ownership has been preemptedby the action of the FCC, we must decide, inaccordance with these principles, whether Congress hasevidenced an intent to occupy the field, or whether stateregulation conflicts with federal regulation. It is usefulto examine these two prongs of preemption law separately.

The question of the extent to which cable televisionis exclusively in the federal regulatory domain has notoften been addressed. The Supreme Court of the UnitedStates has held that the Communications Act of 1934,47 U.S.C. § 151 et seq., confers upon the FCC "a circumscribedrange of power to regulate cable television";FCC v. Midwest Video Corporation, 440 U.S. 689,696, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). TheFCC itself, in its principal over-all review of cable television,

[192 Conn. 513]

     has acknowledged that its jurisdiction is concurrentwith that of state and local governments andhas sought to implement what it has characterized as"a deliberately structured dualism." Cable TelevisionReport and Order, 36 F.C.C.2d 143, 207 (1972).Because regulation of cable television is not an areaof the law inherently requiring national uniformity, inthe absence of express congressional preemption, weheld in 1970, relying on TV PIX, Inc. v. Taylor,304 F. Sup. 459, 464-65 (D. Nev. 1968), aff'd without opinion,396 U.S. 556, 90 S.Ct. 749, 24 L.Ed.2d 746 (1970),that the FCC had not acted to assert exclusive jurisdictionover cable television. Connecticut Television,Inc. v. Public Utilities Commission, supra, 340.

The plaintiffs urge us nonetheless to find a federalintent to occupy the field, because they argue that therelevant field is not cable television as a whole butrather media cross-ownership. Identification of theappropriate field is a question of some difficulty.8 InPacific Gas & Electric Co. v. State Energy ResourcesConservation & Development Commission, 461 U.S. 190,212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), thecourt noted that Congress had preserved dual federal stateregulation of nuclear-powered electricity, but hadcompletely occupied the field of nuclear safety concerns.The court held that "[w]hen the federal governmentcompletely occupies a given field or an identifiableportion of it . . . the test of preemption is whether`the matter on which the state asserts the right to actis in any way regulated by the federal government.'"Id., quoting Rice v. Santa Fe Elevator Corporation,supra, 236.

[192 Conn. 514]

We must therefore determine whether media cross-ownershipinvolving cable television is a field "or anidentifiable portion of it', which expressly or inferentiallyhas been reserved for federal regulation. This isan issue which the trial court did not directly address,having found preemption under the second prong ofpreemption law.

It is undisputed that the FCC has regulated mediacross-ownership in a number of specific circumstances.The FCC has, in areas other than cable television,imposed limitations on cross-ownership of broadcaststations, of broadcast stations and television stations,and of broadcast stations, television stations andnewspapers, but left unregulated cross-ownership oftelevision stations and weekly newspapers.47 C.F.R. § 73.35, 73.240(a), 73.636(a)(2) (1982). For cable, theFCC has prohibited cross-ownership of cable systemsand television stations, cable systems and television networks,and cable systems and telephone companies.47 C.F.R. § 63.54, 63.57, 76.501 (1982).

The FCC has furthermore considered whether toregulate cable-newspaper cross-ownership but determined,in 1975, "to issue no rules at this time prohibitingor restricting such cross-interests." First Report(Docket No. 18891), 52 F.C.C.2d 170, 171 (1975). In thatreport, the FCC stated that it proposed to postpone afinal determination "until such time as we find abusivetrends developing or have more conclusive informationas to the potential harms that may be involved . . . ."Id. The report concluded by retaining jurisdiction "forsuch future consideration as developments in the industryor our own analysis suggest is necessary." Id., 172.

The FCC's decision to leave cable-newspaper cross-ownershipunregulated for the time being does notnecessarily signal an intent to open the field of cross-mediaownership to state regulation. In 1971, when the

[192 Conn. 515]

     FCC first attempted to draw a line demarcating federalfrom state control over cable television, it statedthat "federal regulation is clearly indicated in suchareas as signals carried, technical standards, programorigination, cross-ownership of cable and other media,and equal employment opportunities." CommissionProposals for Regulation of Cable Television, 31F.C.C.2d 115, 136 (1971). By 1975, however, the FCChad retreated from the categorical assumption of jurisdictionover media cross-ownership. In a reportintended to delineate those aspects of cable regulationthat came within the province of the commission andthose that were the responsibility of nonfederal officials,the FCC sought to distinguish "between reasonableregulations regarding use of the streets andrights-of-way and the regulation of the operationalaspects of cable communications. The former is clearlywithin the jurisdiction of the states and their politicalsubdivisions. The latter, to the degree excised, is withinthe jurisdiction of this Commission." (Emphasis added.)Report and Order (Docket No. 20272), 54 F.C.C.2d 855,861 (1975). This report, which postdated the decisionto leave cable-newspaper cross-ownership unregulated,expressly disavowed "the broad-brush approach consideredprior to our 1972 rules of total preemption andfederal licensing." Id., 863. Instead, it opted for subjectmatter preemption. The list of preempted subjectareas included "signal carriage, pay cable, leased channelregulations, technical standards, access, and severalaspects of franchise responsibility"; id., .863; but notmedia cross-ownership. The conclusion that this reportcounsels against inferential preemption of cross-mediaownership is confirmed by the express statement in asubsequent FCC case that "[i]t is not our intention topreempt the rights of the states to adopt cross-ownershipprohibitions as they see fit." Report andOrder (CC Docket No. 80-767), 88 F.C.C.2d 564, 577(1981), reconsid. denied, 91 F.C.C.2d 622 (1982).

[192 Conn. 516]

This history, combined with unresolved doubts aboutthe FCC's jurisdiction over cable-newspaper cross-ownership,9is far from persuasive that federal regulation,either of cable television in general or of mediacross-ownership in particular, has pervasively filled thefield. We agree, therefore, with the defendants thatthe action of the DPUC in this case has not been preemptedby federal occupation of the field.

Even if Congress has not given persuasive evidenceof its intent to occupy the field of cable television mediacross-ownership, Connecticut may still be barred, underthe second prong of preemption law, from taking actionthat actually conflicts with federal regulation. The questionthen becomes, as a first subset, whether it is impossibleto comply with both state and federal law, or, as asecond subset, whether state law stands as an obstacleto the accomplishment of the full purposes and objectivesof Congress. Silkwood v. Kerr-McGee Corporation,464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443(1984); Pacific Gas & Electric Co. v. State EnergyResources Conservation & Development Commission,461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752(1983). As the holdings of no preemption in these casesillustrate, we should not reach to find actual conflictif accommodation of both federal and state interestsis possible.

The plaintiffs do not contend that compliance withthe DPUC's rules on cable and newspaper cross-ownershipwould require them to violate outstandingFCC regulations. It is clearly possible for them to complywith both federal and state law.

[192 Conn. 517]

The plaintiffs do contend that the action taken by theDPUC stands as an obstacle to the accomplishment ofthe full purposes and objectives of the FCC. They claim,and the trial court held, that the decision by the FCCin 1975 to postpone a final determination about regulationof cable-newspaper cross-ownership, while retainingjurisdiction "for . . . future consideration"; FirstReport (Docket No. 18891), 52 F.C.C.2d 170, 172 (1975);is a determination that there shall be no such regulationby anyone. There is no doubt that when federallaw manifests a federal judgment that the absence ofregulation will best serve federal objectives, state regulationis preempted. Mobil Oil Corporation v. Dubno,492 F. Sup. 1004, 1010-11 (D. Conn. 1980), appeal dismissedin part and aff'd in part, 639 F.2d 919 (2d Cir.1981). While we agree with the principle upon whichthe trial court relied, we disagree with its applicabilityto the record of FCC regulation in this case.

As we noted in our discussion of preemption by occupationof the field, the FCC has retreated from itsearlier intention to keep within the federal regulatorydomain all issues relating to media cross-ownership.Id., 1010-11. If we examine the FCC decision to postponea final determination about regulation of cable newspapercross-ownership in this light, we must concludethat a federal policy of watchful waiting is notinconsistent with state experimentation with limitedcross-media regulation. As we held in Connecticut Television,Inc. v. Public Utilities Commission, 159 Conn. 317, 339-40,269 A.2d 276 (1970), FCC identification of a need forcontinued federal inquiry into media cross-ownership is notsufficient to establish federal preemption.

The plaintiffs argue that Connecticut Television, Inc.v. Public Utilities Commission is distinguishable fromthis case. They acknowledge that selection of a cablefranchisee is indeed a matter primarily within the control

[192 Conn. 518]

     of local officials.10 They concede that, in thefranchisee selection process, media cross-ownership mayappropriately be considered as one of several comparativefactors in choosing among competing franchiseapplicants. This was the factual background of ConnecticutTelevision. Connecticut Television, Inc. v. PublicUtilities Commission, supra, 333. The plaintiffs assert,however, that there is a significant distinction betweenfactors used to make a comparative choice, which fallwithin local control, and rules which establish an applicant'seligibility, over which the FCC, in their view,exercises exclusive jurisdiction. We find this argumentunpersuasive. We fail to see how there can be a logicaldistinction, for preemption purposes, between partialand total local prohibition of media cross-ownership.Furthermore, the record does not establish that theDPUC has adopted an outright ban on cable-newspapercross-ownership, since it permitted the plaintiff TimesMirror to acquire control over the plaintiff CATV systemsdespite Times Mirror's ownership of two newspaperslocated in Stamford and Greenwich.

We note finally that the FCC has not relied on impliedpreemption when it has intended to foreclose state andlocal regulatory activity. When the FCC determinedthat it would regulate the rates and the program contentof special pay cable programming, it statedexpressly that it had concluded that, "at this time, thereshould be no regulation of rates for such services atall by any governmental level." Clarification of theCable Television Rules and Notice of Proposed Rulemaking

[192 Conn. 519]

     and Inquiry (Docket Nos. 20018 et al.), 46 F.C.C.2d175, 199 (1974). A year later, the FCC reiterated thatit regarded its prior statements concerning the regulationof subscription operations "as preempting localregulation of rates as well as program content." FirstReport and Order (Docket No. 19554), 52 F.C.C.2d 1,67 (1974). Similarly, when dealing with cable televisionsubscriber rates, the FCC declared that it had "takenthe position that rates for subscription television programs,leased channels, advertising, and other auxiliaryservices should not be regulated at either the local,state, or federal levels at this time. . . . [T]he Commissionhas not only declined to regulate the rates forthese services but has preempted their regulation bystate and local authorities." Notice of Inquiry (DocketNo. 20767), 58 F.C.C.2d 915, 915-16 (1976). In the aptlanguage of the United States Court of Appeals for theSecond Circuit, "[t]he policy to preempt has beenshouted from the rooftops . . . ." Brookhaven CableTV, Inc. v. Kelly, 573 F.2d 765, 768 (2d Cir. 1978), cert.denied, 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372(1979).

We therefore conclude that there is no persuasive evidencethat the FCC intended, by its own deferment ofregulation of cable-newspaper cross-ownership, to precludelocal consideration of such cross-ownership in theaward or in the revocation of a cable franchise. In theabsence of such an intent to preempt, the action by theDPUC in this case is not an obstacle to the accomplishmentof the full purposes and objectives of Congress.

Our determination that the DPUC's order was notbarred by the federal law of preemption does not disposeof the plaintiffs' appeal from that order. Sincethere were other grounds of appeal that the trial courtdid not reach, those issues must now be litigated.

[192 Conn. 520]

There is error, the judgment is set aside, and the caseis remanded for further proceedings in accordance withthis opinion.

In this opinion the other judges concurred.

1. The plaintiffs are the Times Mirror Company, CommunicationsProperties, Inc., Telesystems of Connecticut, Inc., and Hartford CATV, Inc.Although the name of Communications Properties, Inc., has been changedto Times Mirror Cable Television, Inc., the parties have continued to referto this company as CPI, and we shall follow that convention. The two CATVsystems are generally referred to as TOC and HCTV.

2. Although there are technically two appeals, we shall treat themas one, since the same issue is presented in each.

3. In the appeal to the trial court, the plaintiffs raised numerousissues other than preemption which the trial court did not reach.

4. "[General Statutes] Sec. 16-331. CERTIFICATE OF PUBLICCONVENIENCE AND NECESSITY. MEETINGS WITH ADVISORY COUNCIL. (a) No person,association or corporation shall construct or operate a community antennatelevision system without having first obtained a certificate from thedepartment of public utility control certifying that public convenience andnecessity require the operation of such a service within the territoryspecified in such certificate. Notwithstanding the provisions of section33-286, the certificate shall authorize the holder thereof to occupy publichighways to the extent required to provide community antenna televisionsystem service. The certificate shall be issued only after writtenapplication for the same has been made to the department, accompanied by afee of fifty dollars, and public hearing has been held thereon. Nocertificate shall be sold or transferred without the approval of thedepartment. For due cause shown, the department may amend, suspend or revokeany such certificate. If a certificate is not exercised within two yearsfrom the date of issue, the department may revoke the certificate. Thedepartment may specify in the certificate at the time of issue and from timeto time thereafter such terms and conditions as the public interest mayrequire. The department may amend a certificate to include in the franchisemunicipalities which are not included in any other franchise, if thedepartment finds, after a hearing, that such an amendment is in the publicinterest and not unduly detrimental to the holder of the certificate. "(b) In determining whether a new certificate shall be granted or existingcertificate transferred, the department of public utility control shalltake into consideration the public need for the proposed service, thesuitability of the applicant or, if the applicant is a corporation, of itsmanagement, the financial responsibility of the applicant and the ability ofthe applicant to perform efficiently the service for which authority isrequested. In the case of an application filed on or after October 1, 1981,(1) if the applicant or an affiliate thereof is the holder of one or moreother certificates in the state, the department shall also consider thepossible adverse effects of increasing the concentration of ownership ofcommunity antenna television systems and related services, which wouldresult from granting the application and (2) suitability of the applicantshall include consideration of participating owners resident in the proposedservice area as well as involvement in local civic and community activities.In considering concentration of ownership the department shall take intoaccount the following factors: (A) Federal and state anti-trust and unfairtrade practices laws, regulations and policies; (B) concentration of mediaand editorial functions; and (C) the reduced ability of the department tomake comparisons with other certificate holders. "(c) An officer of a community antenna television company granted acertificate of public convenience and necessity in accordance with thissection shall, twice a year, arrange for and hold a meeting with theadvisory council established by regulation for the franchise area served bysuch company. The department shall designate an advisory council as anintervenor in any contested case before the department involving thecommunity antenna television company which the council is advising. Suchcompany shall provide to the chairperson of its advisory council a copy ofany report, notice or other document it files with the department."

5. DPUC approval of Times Mirror's acquisition of CPI was requiredbecause the DPUC views the transfer of 30 percent of the stock of a CATVsystem as a transfer of control of the system. See General Statutes 16-43.

6. The agency charged with supervision of cable television wasknown, until 1975, as the Public Utilities Commission. From 1975 to 1979,regulation was in the hands of the Public Utilities Control Authority.Public Acts 1975, No. 75-486, 1. Since 1979, the regulatory agency has beenthe Division of Public Utility Control within the Department of BusinessRegulation. Public Acts 1977, No. 77-614, 162.

7. Article VI of the constitution of the United States provides inpart: "This Constitution, and the Laws of the United States which shall bemade in Pursuance thereof; and all Treaties made, or which shall be made,under the Authority of the United States, shall be the supreme Law of theLand; and the Judges in every State shall be bound thereby, any Thing inthe Constitution or Laws of any State to the Contrary notwithstanding."

8. Definition of the field for preemption purposes raises some ofthe same difficulties that inhere in definition of the market for antitrustpurposes. "[M]arket definition issues have dominated the treatment ofmonopoly power in the leading [Sherman Act] 2 monopoly cases." II Areeda &Turner, Antitrust Law (1978) 533, p. 406 and also 528, pp. 385-88.

9. The DPUC has raised an issue, both in the trial court and in this

10. With regard to franchise standards, the FCC has expresslyregulated permissible franchise fees; see 47 C.F.R. § 76.31; buthas otherwiseleft to the local franchising process the promulgation of provisions aboutsuch matters as qualifications of a franchisee, the duration of a franchise,the speedy availability of franchise service and the accountability offranchisees for proper service. Recommendations by the FCC for regulation ofthese questions have been expressly designated as not mandatory. See notefollowing 47 C.F.R. § 76.31 (1982).

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