If a man may be judged by the quality of his enemies, Oakland attorney Harold Farrow must be doing a lot of things right. Local governments hate him. Even the city of Oakland, whose current mayor has been a law partner of Farrow's for nine years, isn't nuts about him.
Originally, Farrow's law firm worked for cable television firms that were trying to win municipal franchises. Later, Farrow began litigating to end the monopolistic practice of licensing cable TV operators—a practice he calls "the fattest porkbarrel for local government in a long time."
In Oakland, the problem for cable operators was access to poles. General Telephone and Pacific Telephone were making access very difficult, even though both used easements that had been obtained for them by the government. Farrow's firm won a decision in the late '70s that essentially forced the phone companies to grant access on reasonable terms. "If they weren't public utilities," says Farrow, "forcing access could amount to a taking [of property]; but they are."
What about aggressive competitors coming into the market and "cream skimming"—a standard worry? He counters: "Every magazine, every First Amendment publisher, has a targeted audience—that is, it tries to skim the cream of readers. One of the freedoms of the First Amendment is to publish wherever you want, rather than where you're told. The only publication that isn't 'cream-skimming' is Pravda."
Farrow won another landmark cable case, in Boulder, Colorado. In the late '70s, the cable firm there was operating only in the "shadow areas" of the city, serving customers with bad broadcast reception. When more diverse programming came in from satellite transmission, the cable operator wanted to expand to serve the whole city. Some local residents wanted the franchise themselves, however, and offered to compete—so the city passed an ordinance taking away the first firm's right to build at all. After several years of the old juridical back-and-forth—injunction, counterinjunction, remanding to lower court—the Supreme Court ruled in 1982 that municipalities are not immune from suit under antitrust laws. More importantly, says Farrow, the lower court affirmed his First Amendment argument and the city signed a consent decree, giving First Amendment stature to cable "publishers."
Farrow, a 1953 graduate of the prestigious Boalt Hall Law School at the University of California at Berkeley, notes the parallel between modern-day regulation of cable and the regulation of the press during England's Tudor and Stuart monarchies. "When the printing press came to England, it was a novelty. Henry VIII recognized the value of it, so he limited the number of presses and the right to be a printer. Franchisees tried to protect their 'rights' by forming a stationers society (like today's National Cable Television Association [NCTA]). Printing was cheap; people learned to read. There was an underground of illegal presses, and a Beadle would search out and destroy them for a bounty. Freedom of the press did not refer to publishers being able to print whatever they wanted, but rather to being able to print at all—exactly the situation cable operators find themselves in today."
Congress took Henry VIII's approach in passing the 1984 Cable Act, which not only allows municipalities to license cable operators but also gives operators no presumptive right to renewal of their licenses. Municipalities and the NCTA supported the bill, while Farrow and others fought it. "The worst thing about the Cable Act," says Farrow, "is the franchising concept itself. The idea that you have to buy the right to be a speaker is an intolerable concept. The second worst thing is the concept of programming control. Cable is in a natural position to be a primary reporter on the activities of local government. But it has to be able to report without threat of blackmail, without fear of losing the entire business because it says something that puts the mayor in an unfavorable light."
A later case of Farrow's, Preferred Communications v. City of Los Angeles, limited the damage of the Cable Act. When the time came to award the cable franchise plum in the largely black south central Los Angeles area, the city preferred someone other than the black-run Preferred Communications. In 1983 Farrow filed suit on First Amendment and antitrust grounds, and the Ninth Circuit Court of Appeals agreed on the First Amendment grounds. The city appealed. The Supreme Court refused to hear the city's appeal, but in a footnote it said that interpreting the cable law to allow only one franchise was an overbroad interpretation of the city's powers. Congress, added the Court, was well aware that such a limit would be unconstitutional.
Farrow, a native Texan, notes, "I went into the army when they first put blacks and whites into the service together. In that sort of situation, you develop a feel for the need for free speech to settle the irritations of society with something other than shotguns."
The legal victories are never final ones, Farrow cautions. "The desire to control the press is a human desire. Through most of society it's been controlled, and it's likely to happen again if you don't watch out." Thanks to Farrow's work, "watching out" for such power grabs should be a great deal easier: we'll be able to watch them on cable channels. Competing ones.
John Dentinger is a freelance writer and a columnist for the LA Daily News.