Before: Edwards, Chief Judge, Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with Nos. 93-1266, 93-1384, 93-5350, 93-5351
On Suggestions for Rehearing In Banc
The Suggestions for Rehearing In Banc and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestions. Upon consideration of the foregoing, it is
ORDERED that the suggestions be denied.
Circuit Judges Wald and Henderson did not participate in this matter. A dissenting statement of Circuit Judge Williams, with whom Chief Judge Edwards, and Circuit Judges Silberman, Ginsburg and Sentelle concur, is attached.
Williams, Circuit Judge, with whom Chief Judge Edwards, Judge Silberman, Judge Ginsburg and Judge Sentelle concur, dissenting from the denial of rehearing in banc:
Although I dissent from the denial of the suggestion for rehearing in banc, I do so with genuine uncertainty about the correct outcome. But I believe there were fatal defects in the panel's legal theory for upholding the 1992 Cable Act's requirement that direct broadcast satellite ("DBS") providers set aside several channels for noncommercial programming of an educational or informational nature. Time Warner v. FCC, 93 F.3d 957, 973-77 (D.C. Cir. 1996). DBS is not subject to anything remotely approaching the "scarcity" that the Court found in conventional broadcast in 1969 and used to justify a peculiarly relaxed First Amendment regime for such broadcast. Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969). Accordingly Red Lion should not be extended to this medium.
If the 1992 Act's content rules for DBS can be sustained at all, in my view it would only be on the theory that the government is entitled to more leeway in setting the terms on which it supplies "property" to private parties for speech purposes (or for purposes that ...