OPINION OF INDIVIDUAL JUSTICE
on application for injunction
No. A-798. Decided April 29, 1993
The application of cable operators and programmers for an injunction barring enforcement of §§ 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992—which require cable operators to reserve a portion of their channel capacity for local commercial and noncommercial educational broadcast stations—is denied. Acts of Congress are presumptively constitutional and should remain in effect pending a final decision on the merits by this Court. Moreover, this Act was upheld by a three-judge District Court, which rejected applicants' argument that compelling them to carry signals of video programmers they would otherwise choose not to carry violates the First Amendment. Equally important, applicants are seeking an injunction rather than a stay of a lower court's order. The power to issue such extraordinary relief is to be used sparingly, only when necessary or appropriate in aid of this Court's jurisdiction and the legal rights at issue are indisputably clear. Implementation of §§ 4 and 5 would not prevent this Court's exercise of its appellate jurisdiction to decide the merits of applicants' appeal. Nor is it indisputably clear that applicants have a First Amendment right to be free of the must-carry provisions. This Court has not decided whether the activities of cable operators are more akin to that of newspapers—on whom must-carry provisions cannot be imposed—or wireless broadcasters—on whom regulation has been constitutionally imposed in the past.
Chief Justice Rehnquist, Circuit Justice. Applicants have asked me, as Circuit Justice for the District of Columbia Circuit, to enjoin enforcement of §§ 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1471-1481, which
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