N.Y. ST. COM'N ON CABLE TELEVISION v. F.C.C.

Nos. 83-2160, 83-2190 and 83-2196.

749 F.2d 804 (1984)

NEW YORK STATE COMMISSION ON CABLE TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Direct Satellite Communications, Inc., Time, Inc., National Satellite Cable Association, United Satellite Communications, Inc., WWHT Corporation, et al., Society for Private & Commercial Earth Stations, City of New York, Satellite Television Corporation, Board of Public Utilities, State of New Jersey, Suburban Cablevision, Minnesota Cable Communications Board, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided November 30, 1984.


Attorney(s) appearing for the Case

John H. Reichman, New York City, with whom Edward P. Kearse and Peter Bienstock, New York City, were on brief, for petitioner.

Robert Alan Garrett, Washington, D.C., with whom Stephanie M. Phillipps, Washington, D.C., was on joint brief, for intervenor City of New York and amicus curiae The Nat. League of Cities, urging reversal. David H. Lloyd, Patrick J. Grant, and Elaine Lubin, New York City, also entered appearances for City of New York.

Gregory M. Christopher, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle, and Carl D. Lawson, F.C.C., Washington, D.C., were on brief, for respondents. Barry B. Grossman and Robert B. Nicholson, Dept. of Justice, Washington, D.C., entered appearances for respondent U.S.

Mark J. Tauber, Washington, D.C., with whom Deborah C. Costlow, Richard L. Brown, and Frederick W. Finn, Washington, D.C., were on brief, for intervenors Nat. Satellite Cable Ass'n, et al., in No. 83-2160.

Jack N. Goodman and Robert Trager, Washington, D.C., were on brief for intervenors United Satellite Communications, Inc., in Nos. 83-2190 and 83-2196.

J. Michael Miles, Asst. Atty. Gen., and Martha J. Casserly, Sp. Asst., Minn., St. Paul, Minn., were on brief for intervenor Minn. Cable Communications Bd.

Monica E. Olszewski, Short Hills, N.J., was on brief for intervenor Suburban Cablevision. Clement H. Berne, New York City, also entered an appearance for intervenor Suburban Cablevision.

Phillip L. Spector, Brattleboro, Vt., and Jeffrey H. Olson, Washington, D.C., were on brief for intervenor Direct Satellite Communications, Inc.

Margaret M. Foti, Princeton, was on statement in lieu of brief for intervenor Bd. of Public Utilities, N.J., in Nos. 83-2190 & 83-2196. Carla Vivian Bello, Newark, N.J., also entered an appearance for intervenor Bd. of Public Utilities, N.J.

John S. Hannon, Jr., Keith H. Fagan, Alan B. Sternstein, Richard E. Wiley, Lawrence W. Secrest, III, and Philip V. Permut, Washington, D.C., were on statement in lieu of brief for intervenor Satellite Television Corp.

Robert T. Perry and Donna A. Demac, New York City, were on brief for amici curiae Joseph Ferris, et al., urging reversal.

Ronald A. Siegel and Robert Clifton Burns entered appearances for intervenors WWHT Corp., et al.

Richard L. Brown, Frederick W. Finn, Washington, D.C., and Lauritz S. Helland, New York City, entered appearances for intervenor Society for Private and Commercial Earth Stations in Nos. 83-2190 & 83-2196.

Before TAMM, WILKEY, and EDWARDS, Circuit Judges.


Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge.

This is an appeal from a decision of the Federal Communications Commission (the Commission) to preempt state and local entry regulation of satellite master antenna television (SMATV). In a memorandum opinion and order issued November 17, 1983, the Commission held that the "potential for such state regulation to chill the development of SMATV service conflicts with our Congressional mandate...

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