## Facts

- Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, imposing obligations on direct broadcast satellite (DBS) providers.
- The Act required DBS licensees to reserve a portion of channel capacity for noncommercial, educational, or informational programming, and the FCC adopted implementing regulations.
- Time Warner, as a DBS operator, challenged the channel set-aside as an unconstitutional burden on speech under the First Amendment.
- A D.C. Circuit panel upheld the statutory set-aside and FCC rules, analogizing DBS to broadcast and relying on broadcast “scarcity” doctrine and a content-neutral “diversified mass communications” rationale.
- Time Warner sought rehearing en banc, arguing the panel’s First Amendment framework was incorrect; the full court declined to rehear the case.
- Judge Williams, joined by four judges, dissented from the denial of rehearing en banc, criticizing the panel’s use of the broadcast scarcity rationale and its characterization of the set-aside as content neutral.

## Issues

1. Whether the D.C. Circuit should rehear en banc a panel decision upholding DBS channel set-aside requirements against a First Amendment challenge.
2. Whether DBS should be treated like broadcast for First Amendment purposes, including possible reliance on the broadcast scarcity rationale.
3. Whether a mandate to reserve channels for noncommercial educational/informational programming is properly analyzed as content neutral (intermediate scrutiny) or content based (more demanding scrutiny).

## Decision

- The court denied rehearing en banc by per curiam order because a majority of active judges did not vote in favor of rehearing.
- The denial left the panel judgment in place upholding the DBS channel set-aside provisions and the FCC’s implementing rules.
- Judge Williams dissented from the denial, arguing the panel’s legal theory had serious First Amendment defects and warranted en banc review.

## Legal Principles

- An order denying rehearing en banc does not alter the panel’s merits disposition; it leaves the panel decision as the court’s operative judgment.
- In assessing First Amendment challenges to communications carriage obligations, courts may classify the medium (e.g., broadcast-like versus cable-like) to determine the applicable doctrinal framework and level of scrutiny.
- Government may argue that structural carriage rules serve a substantial interest in increasing the availability and diversity of information sources; whether such rules are content neutral can affect whether intermediate scrutiny applies.
- A dissent from denial of rehearing en banc may identify doctrinal objections (e.g., limits on extending broadcast scarcity doctrine to newer media) but has no precedential effect on the outcome.

## Conclusion

The D.C. Circuit denied rehearing en banc, leaving intact the panel decision sustaining the 1992 Act’s DBS educational set-aside and the FCC’s rules against a First Amendment challenge, while a multi-judge dissent argued that the panel’s reliance on broadcast-style scarcity and its content-neutral framing were legally flawed.


Time Warner Ent. Co. v. FCC, 105 F.3d 723 (D.C. Cir. 1997)