Horton v. City of Houston ( 2004 )


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  •                                                         United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                      UNITED STATES COURT OF APPEALS               June 18, 1999
                           FOR THE FIFTH CIRCUIT
                                No. 98-20031              Charles R. Fulbruge III
                                                                  Clerk
        ROBERT HORTON, NATIONALIST TELEVISION, a Texas Non-Profit
                     Corporation; and BARRY HACKNEY,
    
                                                  Plaintiffs-Appellants,
    
                                   versus
    
      CITY OF HOUSTON, TEXAS and ACCESS HOUSTON CABLE CORPORATION,
    
                                                 Defendants-Appellees.
               Appeal from the United States District Court
                    for the Southern District of Texas
                               June 18, 1999
    Before KING, Chief Judge, JOLLY, and JONES, Circuit Judges.
    
    EDITH H. JONES, Circuit Judge:
    
               At issue in this appeal is whether Access Houston Cable
    
    Corporation (“Access”), a “PEG” cable channel,1 can, consistent
    
    with the First Amendment, charge a fee to cable-cast programs not
    
    “locally produced” in and around Houston, Texas.     We conclude that
    
    Access Houston’s fee requirement is a content-neutral regulation
    
    which implements a significant governmental interest in promoting
    
    localism, but Access has not met its burden of proving that the fee
    
    is narrowly tailored to serve that interest.     We therefore reverse
    
    the grant of summary judgment and remand for further proceedings.
    
                                 BACKGROUND
    
               The City of Houston granted a cable franchise to Warner
    
    Cable Communications (“Warner”) that required Warner to designate
    
    
    
    
           1
            PEG channels are those reserved for public, educational or
    governmental use by the municipal franchise agreement with a cable
    operator. See 47 U.S.C. § 531 and 531(e).
    at least four PEG channels for the city’s benefit.2                        Houston then
    
    engaged Access to manage the channels, including a public access
    
    channel.3             Access is not a typical cable channel:               It does not
    
    operate for profit, it does not have an editorial board that
    
    selects          programming       for    cable-cast,    and     it     does    not   sell
    
    advertising space.             Instead, Access’s programming space is open to
    
    any           individual      or   organization       who      wishes     to     televise
    
    constitutionally              protected    speech.      Access        neither    produces
    
    programs nor broadcasts commercial programs.                            To promote the
    original programming on which it relies, Access offers (for a
    
    nominal fee) video cameras and other production equipment, training
    
    workshops, studio space and other services.
    
                      Access touts that it will broadcast any non-commercial
    
    program          as    long   as   the    program    engages    in    constitutionally
    
    protected speech and complies with various rules designed to
    
    allocate air time among the programmers.                    Access employees do not
    
    pre-screen submitted programs to determine whether they comply with
    
    the non-commercial speech rule or the First Amendment; instead,
    
    Access requires program providers to accept liability for the
    content of their programs by signing a Program Contract before the
    
    program will be aired.4
    
    
          2
            Under the franchise agreement, the City of Houston can require
    Warner to make available an additional four cable channels if certain
    conditions are met.
              3
               That Access is a state actor is undisputed on appeal.
          4
         Pursuant to Rule 2.A-5, all program providers who wish to schedule
    broadcast time with Access must first sign a Program Contract. The Rule
    states that,
    
    
                                                  2
                At   the   time   this   dispute     arose,      Access   sought   to
    
    encourage    programs     “that    reflect[]    the    activities,       culture,
    
    concerns, and interests of the citizens of Houston and []promote a
    
    free exchange of        ideas,    information    and   understanding.”5        To
    
    fulfill its contractual obligation with the City, Access’s Board of
    
    Directors adopted a rule, which has been in effect since 1988,
    
    providing for “locally produced” programs to be broadcast free of
    
    charge.     To qualify as a “locally produced program,” at least 50
    
    percent of the program must have been shot within the Houston
    Standard Metropolitan Statistical Area.                Programs that do not
    
    comply with      the   “locally   produced”     rule   are    assessed    a   fee:
    
    individuals who submit non-local programs must pay $75 for each
    
    hour of programming, while organizations are charged $100 per hour.
    
    Because Access does not pre-screen submitted programs, it cannot
    
    initially determine whether a program complies with the rule.
    
    Access relies on each program provider voluntarily to disclose
    
    whether the submitted program was locally produced.
    
                In March 1992, Appellant Nationalist Television (“N-TV”),
    
    as agent for Houston resident appellant Robert Horton, submitted a
    
    
         2.A-5 PROGRAM CONTRACT AND RESPONSIBILITY: Before access
         programs are scheduled for cable-cast, the access program
         provider must sign a Program Contract which holds the program
         provider liable for content of the program and pay all
         applicable fees.     In signing the Program Contract, the
         program provider agrees in writing that his or her program
         does not include any form of “constitutionally unprotected
         speech.”
         5
          Access Houston ByLaws Art. III (1986). After the events in this
    case, in its 1994 contract with the City of Houston, the requirement to
    support localism became more explicit: “a minimum of 51 percent of the
    total hours programmed on the Access channel shall be locally produced
    in the Houston metropolitan area.”
    
                                           3
    30-minute program for cable-cast entitled Airlink.6               After a month
    
    had passed and the program had not been cable-cast, N-TV wrote to
    
    the   Houston   City      Attorney’s        office   demanding    that   Access
    
    immediately cable-cast Airlink.             The City Attorney replied that
    
    Access operates independently of the City and that Houston cannot
    
    require Access       to   broadcast    Airlink.      In    addition,   N-TV   was
    
    informed that, according to Access, N-TV had not complied with the
    
    procedural requirements necessary to broadcast Airlink and that N-
    
    TV should directly contact Access to complete the application
    process.    Despite this notification and the receipt of a complete
    
    copy of the Access procedural rules, N-TV continued to complain to
    
    the Houston City Attorney’s Office rather than to Access.                 Months
    
    later, N-TV turned to Access and learned that it, like all other
    
    program providers, must sign a Program Contract.               Two months more
    
    passed, N-TV finally signed the requested Program Contract, and
    
    Access began cable-casting Airlink.
    
                Airlink was produced at a studio in Mississippi and did
    
    not qualify as a “locally produced program.”                     N-TV was thus
    
    required to pay the $100 cable-cast fee.7                 N-TV refused to pay,
    arguing that the fee violated the First Amendment, and filed the
    
    present    lawsuit    seeking   a     declaratory    judgment,     a   temporary
    
    restraining order, and a permanent injunction.              Ironically, Access
    
    began regularly cablecasting Airlink just after the suit was filed,
    
          6
            The content of Airlink is described as “pro-majority” in some
    portions of the record and “white supremacist” in other parts of the
    record.
         7
           Since Airlink was a half-hour program, the $100 fee was prorated,
    making N-TV liable for $50 per cable-cast.
    
                                            4
    from December 1992 through February 1993. When N-TV refused to pay
    
    fees for the three months of programming that had been aired,
    
    Airlink was canceled.
    
              Immediately after appellants filed suit, the district
    
    court held a hearing to rule on appellants’ request for a temporary
    
    restraining order (“TRO hearing”).     The district court denied the
    
    request and offered to set the case for trial.      Each party then
    
    moved for summary judgment.    The court held in favor of Access and
    
    the city, ruling that the fee requirement is a facially valid,
    content-neutral regulation incidental to free speech under the test
    
    articulated in United States v. O’Brien, 
    391 U.S. 367
    , 
    88 S. Ct. 1673
     (1968), and that the appellants failed to raise a genuine
    
    issue of material fact regarding whether the fee requirement was
    
    unconstitutional as applied.
    
                              STANDARD OF REVIEW
    
              The standard of review of a summary judgment at the
    
    appellate level is de novo.      Summary judgment is proper if “the
    
    pleadings, depositions, answers to interrogatories, and admissions
    
    on file, together with any affidavits, if any, show that there is
    no genuine issue as to any material fact and that the moving party
    
    is entitled to judgment as a matter of law.”        Fed. R. Civ. P.
    
    56(c); see also Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-24, 
    106 S. Ct. 2548
     (1986).     Under this standard, all fact questions must
    
    be viewed in the light most favorable to the non-moving party, and
    
    questions of law are reviewed de novo.     Hassan v. Lubbock Indep.
    
    Sch. Dist., 
    55 F.3d 1075
    , 1079 (5th Cir. 1995).
    
    
                                       5
                                    DISCUSSION
    
               N-TV scatter-guns its First Amendment arguments against
    
    the Access fee for non-locally-produced programs.                Attacking the
    
    fees both facially and as applied, N-TV asserts that the fee rule
    
    grants overbroad, arbitrary discretion to Access administrators,
    
    encouraging content-based discrimination against programs.                  More
    
    fundamentally,    N-TV   contends     that    the   fee    regulation     is   an
    
    impermissible     content-based      rule.      N-TV      also   levels    equal
    
    protection, overbreadth and vagueness challenges to the fees, but
    these arguments were not raised in the district court and will not
    
    be considered here.
    
               Fitting the PEG channels into the familiar holes of First
    
    Amendment jurisprudence is not easy. The premise of our discussion
    
    is that programmers have some kind of First Amendment rights to
    
    share the podium at a PEG local access channel set aside by
    
    Houston’s cable franchise contract.          The Supreme Court has implied
    
    that all of the participants in cable television-programmers, cable
    
    operators, TV broadcasters, PEG channels -- enjoy free speech
    
    rights,   but    the   limits   of   those    competing      and   potentially
    conflicting rights are far from clear. See generally, Pluralism on
    
    the Bench: Understanding Denver Area Educational Telecommunications
    
    Consortium v. FCC, 97 Colum. L. Rev. 1182 (1997).
    
               The first conundrum relates to the dubious status of PEG
    
    channels, which municipalities have the authority to set aside in
    
    their cable franchise agreements with cable operators.                    See 47
    
    U.S.C. § 531(a).       In the “must-carry” case, the Supreme Court
    
    
                                          6
    upheld a federal law requiring cable operators to make available
    
    transmission space for local TV broadcasters.    Turner Broadcasting
    
    System v. FCC, 
    512 U.S. 622
    , 
    114 S. Ct. 2445
     (1994).        The Court
    
    concluded that the “must-carry” provisions are a content-neutral
    
    regulation designed, not to force a particular type of speech upon
    
    cable operators, but to further the non-speech-related goals of
    
    protecting local broadcasters and assuring free TV access to
    
    citizens who lack cable connections. The four dissenters in Turner
    
    essentially stated, however, that forced set-aside of PEG channels
    is a content-related imposition on cable operators, Turner 512 U.S.
    
    at 675, 114 S. Ct. at 2476 (O’Conner, J., concurring in part and
    
    dissenting in part), and the majority decision offers no rationale
    
    opposed to such a conclusion.8    Justice Thomas reiterated the PEG
    
    constitutionality problem and scholarly discussions of it in the
    
    Court’s most recent cable decision, only to note that the issue had
    
    not been raised.    See Denver Area Educ. Telecomm. Consortium v.
    
    FCC, ___ U.S. ___, 
    116 S. Ct. 2374
     (1996).      The ultimate fate of
    
    PEGs, including Houston’s local access channel, remains in doubt,
    
    but is not to be decided in this case.
              The second conundrum arises from the implicit concession
    
    of Access that the local access channel represents a government-
    
    owned designated public forum. Nevertheless, the Supreme Court has
    
    cautioned that “the public forum doctrine should not be extended in
    
    
    
         8
          Indeed, the majority emphasized that neither the must-carry rule
    nor laws and rules presently applicable to broadcasting (e.g. on non-
    commercial stations) directs the content of the programs. Turner, 512
    U.S. at 649-651, 114 S. Ct. at 2462-63.
    
                                      7
    a   mechanical   way   to   the   very    different    context     of   public
    
    television-broadcasting.”         Arkansas   Educ.    Television    Comm.   v.
    
    Forbes, __ U.S. __, 
    118 S. Ct. 1633
    , at 1639 (1998).               In a later
    
    cable regulation case, seven justices of the Court either rejected
    
    or declined to consider Justice Kennedy’s assertion that a local
    
    access channel is a public forum available to citizens under the
    
    most exacting constitutional standards.          Compare Denver Area, ___
    
    U.S. at ___, 116 S. Ct. at 2404-05 (Kennedy, J., concurring in part
    
    and dissenting in part), with id. ___ U.S. at ___, 116 S. Ct. at
    2388-89 (Breyer, J.) (refusing to consider public forum doctrine),
    
    and id. ___ U.S. at ____, 116 S. Ct. at 2426-28 (Thomas, J.,
    
    concurring in the judgment in part and dissenting in part) (PEG
    
    channel is not a public forum).          If one were either to press the
    
    analogy between Access and a classic public television station or
    
    to reject the public forum doctrine for local access channels, then
    
    Access would enjoy virtually unfettered programming discretion.
    
    Access does not request such latitude, however, so the arguments
    
    that Access is not a public forum or is a limited public forum are
    
    not before us.
               The   consequence,     for    First   Amendment   purposes,      of
    
    ascribing particular forum (or non-forum) characteristics to Access
    
    lies in the strictness of legal scrutiny that will be applied to
    
    Access’s fee regulation.      Access contends that the regulation is
    
    subject to “intermediate scrutiny” because it has nothing to do
    
    with the content of programmers’ speech.         Turner, 512 U.S. at 642,
    
    114 S. Ct. at 2459.    N-TV argues and Access concedes that were the
    
    
                                         8
    regulation content-related, it would be subject to strict scrutiny.
    
    Id. And this dichotomy of regulations has been developed to govern
    
    what may be done to limit speech in either a traditional public
    
    forum or a designated public forum.9             See 4 Ronald D. Rotunda &
    
    John E. Nowak, Treatise on Constitutional Law § 20.47 at 310-11 (2d
    
    Ed. 1992).        Although it is impossible to state whether a local
    
    access channel should be analyzed by reference to the public forum
    
    doctrines, the dichotomy of standards seems to apply to broadcast
    
    regulations.
                   The nub of the parties’ disagreement turns upon whether
    
    the fee charged for non-locally produced programs is content-
    
    neutral, or, as N-TV would have it, a ruse for influencing the
    
    content of programs that will be cable-cast.
    
                   The Supreme Court has observed that “[d]eciding whether
    
    a particular regulation is content based or content neutral is not
    
    always a simple task.”          Turner, 512 U.S. at 642, 114 S. Ct. at
    
    2459.       Regulations that “by their terms distinguish favored speech
    
    from disfavored speech on the basis of ideas or views expressed are
    
    content based.”       Id. 512 U.S. at 643, 114 S. Ct. at 2459.          Thus, a
    rule that       is   applied   because   of   disagreement   with   a   message
    
    presented or a rule that has a substantial risk of eliminating
    
    certain ideas or viewpoints from the public dialogue are content-
    
    based.       See id. 512 U.S. at 642, 114 S. Ct. at 2459; Clark v.
    
    
    
            9
           If Access were, instead, a limited public forum or a nonpublic
    forum it would be permitted to place reasonable restrictions on the
    speech of programmers. See Forbes, ___ U.S. at ___, 118 S. Ct. at
    1640-42. But it plainly does not fit in these categories.
    
                                             9
    Community for Creative Non-Violence, 
    468 U.S. 288
    , 295, 
    104 S. Ct. 3065
    , 3070 (1984).        If, on the other hand, the regulation is
    
    justified without reference to the content of the speech or serves
    
    purposes   unrelated     to   the     content,   it    is   a   content-neutral
    
    regulation, even if it has an incidental effect on some speakers or
    
    messages but not others.      See Ward v. Rock Against Racism, 
    491 U.S. 781
    , 791, 
    109 S. Ct. 2746
    , 2754 (1989); Boos v. Barry, 
    485 U.S. 312
    , 320, 
    108 S. Ct. 1157
    , 1163 (1988).               Finally, this court has
    
    noted that government regulations that apply evenhandedly to all
    speakers   weigh    in   favor   of    finding    content-neutrality.       See
    
    International Soc’y for Krishna Consciousness of New Orleans, Inc.
    
    v. Baton Rouge, 
    876 F.2d 494
    , 497 (5th Cir. 1989).
    
               We conclude that Access’s fee rule is content-neutral
    
    because the rule does not, by its terms, distinguish between
    
    favored speech and disfavored speech.            Access does not examine the
    
    content or message of submitted programs in determining whether to
    
    impose a fee.      Compare Frisby v. Schultz, 487 U.S. at 474, 481-82,
    
    
    108 S. Ct. 2495
    , at 2501 (1988) (finding that a municipal ordinance
    
    prohibiting all picketing near a residence was content-neutral
    because government did not have to look at the content to determine
    
    where picketers can demonstrate), with Boos, 
    485 U.S. 312
    , at 318-
    
    19, 
    108 S. Ct. 1157
    , at 1162 (1988) (finding that an ordinance
    
    prohibiting demonstrations in front of foreign embassies that are
    
    critical of the foreign government was content based because
    
    government necessarily had to review content to determine the
    
    legality of the demonstration).              Access’s fee regulation is an
    
    
                                            10
    evenhanded charge on all providers submitting non-locally-produced
    
    programming, regardless of the content or viewpoint contained in
    
    the program.       In addition, the fee rule can be justified without
    
    referring to the content of any of the submitted programs.                                See
    
    Ward, 491 U.S. at 791, 109 S. Ct. at 2754.                      As discussed infra,
    
    Access asserts that the fee rule promotes local ideas and debate
    
    and helps fund equipment and training for local producers and the
    
    cost of Access’s operations.             See id.; Boos, 485 U.S. at 320, 108
    
    S. Ct. at 1163.         Finally, we rely on a Seventh Circuit case that
    upheld as content-neutral, albeit before Turner, a Chicago rule
    
    requiring    locally-produced        programs.             Chicago        Cable   Comm.    v.
    
    Chicago Cable Comm’n, 
    879 F.2d 1540
     (7th Cir. 1989).
    
                To the extent that Access’s fee rule unabashedly prefers
    
    locally-produced         programs,       we        recognize        that     it    is     not
    
    unassailable.        The dissenters in Turner criticized legislative
    
    preferences       for   “diversity       of    viewpoints,          for    localism,      for
    
    educational       programming   .    .    .”       as    content-based       regulations.
    
    Turner, 512       U.S. at 675, 114 S. Ct. at 2476.                  They noted that no
    
    matter how praise-worthy the objectives, government may not favor
    one set of speakers over another.                  See id. 512 U.S. at 677-78, 114
    
    S. Ct. at 2476-77. Only a four-member plurality in Turner directly
    
    responded    to    arguments    concerning              localism,    but    the   majority
    
    opinions emphasized the purely economic reasons why Congress wanted
    
    to support local broadcasters by requiring “must-carry” by cable
    
    operators.        The non-speech-related basis for the rule made it
    
    content-neutral.        See id. 512 U.S. at 645, 114 S. Ct. at 2461.
    
    
                                                  11
              In this case, one may argue that while the interest in
    
    “localism” is furthered by the fee rule, not only is there no
    
    direct content regulation, but the fee compensates the citizens of
    
    Houston in a small way for the costs incurred when non-locally-
    
    produced programs air on the Access channel.            The fee subsidizes
    
    Access and substitutes for the local resources that could otherwise
    
    be utilized to produce programs.           The fee thus has an independent
    
    economic basis more closely analogous to the content-neutral must-
    
    carry rule than to a purely content-related localism preference.
    We therefore conclude that the non-locally-produced fee rule is
    
    content-neutral.
    
              The standard for evaluating the constitutionality of
    
    content-neutral regulations was articulated in O’Brien:
    
         [A] government regulation is sufficiently justified [1]
         if it is within the constitutional power of the
         Government; [2] if it furthers an important or
         substantial   governmental    interest;    [3]   if   the
         governmental interest is unrelated to the suppression of
         free expression; and [4] if the incidental restriction on
         alleged First Amendment freedoms is no greater than is
         essential to the furtherance of that interest.
    
    O’Brien, 391 U.S. at 377, 88 S. Ct. at 1679.                 As Access’s fee
    regulation is on balance a content-neutral rule, the third prong of
    
    the O’Brien test has been satisfied, and, germane to the first
    
    prong, Houston has the power to sponsor a public access cable
    
    channel and raise revenues for its operation.
    
              Still    at   issue   are   the     second   and   fourth   O’Brien
    
    standards.   “Even a content-neutral regulation of speech on a
    
    public forum must be narrowly tailored to serve a significant
    
    government interest and must leave open ample alternative channels
    
                                          12
    of communication.”         Hays County Guardian v. Supple, 
    969 F.2d 111
    ,
    
    118 (5th Cir. 1992).        The burden is on Access to show that the fee
    
    requirement     is    narrowly   tailored   to   protect    the   identified
    
    interests.     See id. at 119.        A regulation is narrowly tailored
    
    “when it     does    not   ‘burden   substantially   more   speech   than    is
    
    necessary to further the government’s legitimate interests.’”               Id.
    
    at 118 (quoting Ward, 491 U.S. at 799, 109 S. Ct. at 2758).                 In
    
    other words, Access must show that the fee requirement promotes a
    
    substantial governmental interest that would be achieved less
    effectively absent the regulation. See United States v. Albertini,
    
    
    472 U.S. 675
    , 689, 
    105 S. Ct. 2897
    , 2906 (1985); Chicago Cable, 879
    
    F.2d at 1550.
    
               Access argues that the fee requirement promotes the
    
    substantial governmental interest in “localism.”              According to
    
    Access, the fee encourages residents to produce programs featuring
    
    topics of local concern which in turn enhances community self-
    
    expression and fosters direct communication among residents. Since
    
    a portion of the revenues derived from Houston residents’ cable
    
    bills funds Access’s operations, residents should not have to
    subsidize non-locally-produced programs.10 Similarly, Access urges
    
        10
          At the TRO hearing, the executive director for Access expanded on
    this theme, testifying that,
         the residents of the City of Houston, through their cable
         bills, underwrote the costs of the facilitation that our
         organization provides of putting the programs together,
         scheduling them and putting them on the cable system. We’ve
         never had a problem with where programs come from in terms
         of content. We frankly don’t care about what the content is.
         What we were concerned about was it seemed unfair to us that
         the residents of City of Houston should subsidize programs
         that were from somewhere else and that, if someone wished to
    
                                           13
    that the revenues generated from the fee train local producers,
    
    purchase production equipment, and fund the general operations of
    
    Access.          Finally,     encouraging        residents       to     produce      local
    
    programming increases job opportunities and career development of
    
    Houston residents.          We agree--and N-TV does not dispute11--that the
    
    promotion        of   “localism”      in    this    context       is        an   important
    
    governmental interest.          See Chicago Cable, 879 F.2d at 1549-50.
    
                 That Access’s asserted interests are substantial in the
    
    abstract does not mean, however, that the fee regulation fulfills
    them and is narrowly tailored to protect those interests.                          The fee
    
    rule will be considered narrowly tailored if Access can demonstrate
    
    that   it   does      not   “burden     substantially      more       speech      than   is
    
    necessary to further the government’s legitimate interests.” Ward,
    
    491 U.S. at 799, 109 S. Ct. at 2758.               According to Access’s rules,
    
    “locally    produced        programs”      are   aired    free    of    charge,     while
    
    “programs produced elsewhere” are charged either $75 or $100 per
    
    hour. Access defines local programming as “[a]ny program submitted
    
    for cable-cast containing program material of which fifty (50)
    
    percent     or    greater     was     shot”      within   the     Houston         Standard
    Metropolitan Statistical Area.
    
                 Access has failed to demonstrate narrow tailoring of the
    
    fee rule as a matter of law.            It has not shown that, absent the fee
    
    charged     to    providers    of   non-local       programs,         its    interest    in
    
    
         use the facilities, that they should contribute to sustaining
    the organization that had to help facilitate the users of all the
    programs on the channels.
          11
             At oral argument, N-TV agreed that Houston has a substantial
    interest in promoting localism.
    
                                                14
    promoting     localism   “would   be     achieved   less    effectively.”
    
    Albertini, 472 U.S. at 689, 105 S. Ct. at 2906.            Access has not
    
    provided any evidence linking the amount charged to non-local
    
    producers and the promotion of localism.        More precisely, Access
    
    has not shown the amount of revenue generated from the fee, the
    
    number of providers who have been charged the fee, or whether the
    
    fees have actually helped purchase equipment, train producers,
    
    enhance community self-expression, or offset amounts underwritten
    
    by Houston cable subscribers.          Access acknowledged there is no
    scarcity of time available for programs, so the fee plays no role
    
    in rationing airtime favorably to locally produced programs.
    
                Access’s general fee schedule demonstrates the lack of
    
    correlation between the amount charged to non-locally produced
    
    programs and its stated justification for imposing a fee.          Access
    
    heavily subsidizes most of the services and equipment it offers to
    
    the public.    Next to each item listed on the general fee schedule,
    
    Access lists the cost of the item, the amount subsidized by Access,
    
    and the resulting net cost to the producer.12 Notably, however, the
    
    fees charged to program providers for cable-casting their programs
    are not itemized by actual cost, amount subsidized, and net cost to
    
    provider.   The general fee schedule merely states that Access airs
    
    locally produced programs free of charge, while programs produced
    
    elsewhere are charged either $75 or $100 per hour, depending on
    
    
         12
           For example, the actual cost of renting a “VideoMobile Portable
    Kit” is $250; however, Access pays $190 of the cost via a grant, leaving
    the producer liable for only $60.           See Access Houston Cable
    Corporation’s Objections to Proposed Order Granting Summary Judgment,
    Exhibit D (fee schedule effective May 19, 1988).
    
                                       15
    whether the provider is an individual or organization. Not only is
    
    there no evidence how much of the fee charged for non-locally-
    
    produced programs compensates Access for its cable-casting costs of
    
    those programs, but Access’s executive director testified that he
    
    had recommended abolition of the fee to the Board of Directors.
    
    The inescapable conclusion is that the fee serves no measurable
    
    purpose.
    
                Because Access has not met its summary judgment burden to
    
    sustain the fee, this case must be reversed and remanded.           See
    Turner, 512 U.S. at 667-68, 114 S. Ct. at 2471-72 (reversed and
    
    remanded for further factual development).         On remand, Access
    
    should prove how much revenue accrues from the fee for non-locally-
    
    produced programs, as well as the purposes for which it uses the
    
    revenue.    If the revenue is minimal -- that is, if it fails to
    
    ration scare airtime, to reimburse Access’s costs of airing non-
    
    locally-produced programs, or to make any realistic dent in the
    
    costs borne by cable subscribers for the production facilities --
    
    then the district court may conclude that the fee suppresses
    
    protected speech without providing any asserted benefits.
                Further judicial efforts would be avoided, however, if we
    
    accept N-TV’s alternative argument that the fee rule confers
    
    excessive   discretion   upon   Access’s   administrator   and   permits
    
    content-based discrimination.      According to N-TV, Access’s own
    
    interpretation of the fee rule undermines the argument that it is
    
    narrowly tailored. See Forsyth County v. The Nationalist Movement,
    
    
    505 U.S. 123
    , 131, 
    112 S. Ct. 2395
    , 2402 (1992) (courts should
    
    
                                       16
    consider the government’s interpretation of a challenged regulation
    
    when addressing facial challenges). In Forsyth County, the Supreme
    
    Court addressed whether a county could constitutionally charge a
    
    fee to speakers who wished to hold a rally in a traditional public
    
    forum.   See id. 505 U.S. at 129, 112 S. Ct. at 2400.            The Court
    
    struck down the ordinance because it vested too much discretion in
    
    the   county    administrator;   the    administrator   could,     without
    
    objective guidance, determine how much or whether to charge the
    
    demonstrators a permit fee of up to $1,000.        See id. 505 U.S. at
    132-33, 112 S. Ct. at 2402-03.    In the present case, the Executive
    
    Director of Access felt that he could independently determine
    
    whether to charge a fee for certain non-locally-produced programs.
    
    During the TRO hearing, the following exchange occurred between
    
    Appellants’ attorney and Access’s Executive Director:
    
          Question:     What about a guy that stopped
                        by the other day and just
                        happened to pick up some of
                        your     material    and    the
                        receptionist was there and I
                        said,   “You   know,   what  if
                        somebody wanted to go up and
                        get an interview in Dallas with
                        Ross Perot, shoot it up there”
                        and she said, “That will be all
                        right?”    Would that be okay
                        with you?
    
          Answer:       It would be okay with me.
    
          Question:     No charge for that?
    
          Answer:       No charge.
    
          Question:     Okay. Now, just assume for a
                        moment that here is a tape and
                        we’re showing it and there is
                        Senator Gramm. He’s seated at
                        a desk. There’s books behind
    
                                       17
                         him.   And he’s sitting there
                         talking about taxes. Everybody
                         is concerned about them these
                         days. Any problem putting that
                         on?
    
           Answer:       No.
    
           Question:     Okay. Now, let’s say that it’s
                         on the air and one of your
                         staff comes in and says “Mr.
                         Cantrell, you know, I’ve been
                         in Senator Gramm’s office in
                         Washington and I recognize
                         those books. That was filmed
                         in his office in Washington.”
                         No real problem, though?
           Answer:       No real problem.
    
    Other similar exchanges occurred during the TRO hearing, each one
    
    suggesting that Access’s administrator could, at his discretion,
    
    make   special     exceptions   to   the   fee   rule   depending   upon   the
    
    circumstances presented.13       The discretion afforded the Executive
    
    Director is highlighted by contrasting the hypothetical above with
    
          13
             For instance, in another exchange, Access’s Executive Director
    testified as follows:
       Counsel:      Let’s say that Mr. Horton comes into your
                     studio and he produces a show right there
                     in your studio every week, free. He goes
                     to Mississippi. He’s over there visiting
                     the headquarters [of N-TV] and everything
                     and the poor fellow is in a car wreck and
                     he broke his leg and he calls you up and
                     says, “I can’t get back to Houston. I’m
                     going to have to shot this from the
                     hospital bed in Jackson” and he sends you
                     the tape. Is he going to have to pay for
                     that?
       Answer:       Under the Current rules, that would be the
    case.
       Counsel:      Would you waive that in this case?
       Answer:       Would I waive it?
       Counsel:      Yes
       Answer:       In the grievance procedure, I would
                     recommend that we waive it.       I would
                     probably take it upon myself to waive it.
    
                                          18
    one presented to him later during the TRO hearing:
    
          Question:      [Suppose] [h]e’s got a 30-
                         minute show.     He comes so
                         close. for 14 minutes he shows
                         the Houston skyline. Would you
                         let him slide on that without
                         having to pay?
    
          Answer:        Like I say, we would -- that
                         would be a good issue to
                         discuss    in the   grievance
                         procedure.
    
          Question:      You might let it slide?
    
          Answer:        Well, I don’t think I would let
                         it slide. But if it came up, I
                         think it would be something
                         worth   discussing   with   the
                         board.
    
                Access’s response to this troubling amount of apparently
    
    unguided discretion is that N-TV presented no actual evidence that
    
    the fee had been discriminatorily imposed.          We agree that, in light
    
    of the express objectivity of the rule, a facial challenge based on
    
    standardless discretion lacks merit. The rule, unlike the sliding-
    
    scale fee in Forsyth, unequivocally identifies the programs to
    
    which it applies and simply does not justify the latitude which the
    
    Executive Director hypothesized.            Further, lacking any proof that
    the   fee   was   ever   administered        discriminatorily   to   suppress
    
    disfavored speech, N-TV’s as-applied challenge must fail.
    
                                     CONCLUSION
    
                Much is uncertain about the scope of First Amendment
    
    benefits and      burdens   in   the   cable    industry.   The   directions
    
    presently available to us from the Supreme Court appear to require
    
    a standard less than that of strict scrutiny for Access’s non-
    
    
                                           19
    locally-produced fee rule, but they also require attention to the
    
    details of intermediate scrutiny.    Regulations like this one which
    
    burden protected speech are not to be rubber-stamped.   Based on the
    
    foregoing discussion, the case must be reversed and remanded for
    
    further factual development.
    
              REVERSED and REMANDED.
    
    
    
    
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