Wright, Wilkey and Bork, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
TELEVISION, INC., KING BROADCASTING COMPANY,
ASSOCIATION OF INDEPENDENT TELEVISION
STATIONS, NATIONAL ASSOCIATION OF
BROADCASTERS, TOWN OF QUINCY,
Petition for Review of Orders of the Federal Communications Commission.
This case is a petition for review of orders of the Federal Communications Commission (the "FCC") requiring Quincy Cable T.V., Inc., to carry the signals of three commercial broadcast stations over Quincy Cable's cable television system. Quincy Cable contends that the FCC's orders violate the first amendment of the Constitution and are an unconstitutional taking of private property without just compensation. Quincy Cable further contests the lawfulness of a $5,000 forfeiture imposed on it by the FCC for Quincy Cable's failure to comply with an order of the Chief of the Cable Television Bureau of the FCC.
To our utter astonishment, the parties to this review presented significant factual developments to the Court on the eve of oral argument, which developments apparently were not considered by the FCC, despite their relevance to the legal contentions of the parties. Accordingly, we remand the record to the FCC for a determination of Quincy Cable's claims in light of the current facts pertaining to Quincy Cable's channel capacity, tier structure, and other factual developments not considered in the record of the FCC's prior proceedings.
Quincy Cable operates a cable television station in Quincy, Washington, a town approximately 125 miles equidistant from Spokane and Seattle. At the time of Quincy Cable's initial petition to the FCC for an exemption from the FCC's "must carry" rule, *fn1 in November of 1979, Quincy Cable delivered 12 channels of video service to its subscribers. The programming of these 12 channels included three commercial network stations in Seattle, which were not viewable off-the-air in Quincy, and three commercial network stations in Spokane which were viewable off-the-air. *fn2 Quincy Cable sought to drop the three Spokane stations from its cable coverage, because it planned to replace those three commercial broadcasts with different programming not available to viewers in Quincy by means of the viewers' television antennas. It requested an exemption from the FCC's rule that requires a cable television system to carry, upon a broadcaster's request, the signals of each local, commercial broadcast television station. *fn3 Quincy Cable claimed that the requirement that three of Quincy Cable's 12 cable channels be used to carry the Spokane stations' signals was a hardship to Quincy Cable and its subscribers. *fn4
The Chief of the Cable Television Bureau denied Quincy Cable's request to discontinue carriage of the three Spokane stations in April of 1980. *fn5 (Quincy I) In its petition for reconsideration, Quincy Cable contended that the Bureau Chief's order was a violation of the first and fifth amendments of the Constitution and it sought a stay of the order requiring it to carry the three stations' signals on three of its 12 channels. The Bureau Chief denied Quincy Cable's request for reconsideration ...