CITY OF LOS ANGELES, ET AL., PETITIONERS V. PREFERRED COMMUNICATIONS, INC. No. 85-390 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief For The United States and The Federal Communications Commission as Amici Curiae Supporting Affirmance TABLE OF CONTENTS Opinions Below Jurisdiction Question Presented Interest of the United States Statement Introduction and summary of argument Argument: The complaint alleges a violation of respondent's First Amendment rights Conclusion OPINIONS BELOW The opinion of the court of appeals (J.A. 24a-63a) is reported at 754 F.2d 1396. The orders amending the opinion (J.A. 64a-67a) are unreported. The opinion of the district court (J.S. App. C59-C72) is unreported. JURISDICTION The judgment of the court of appeals (J.A. 63b) was entered on March 1, 1985. An order amending the court of appeals' opinion and denying a petition for rehearing was entered on June 13, 1985 (J.A. 64a-66a). A notice of appeal (J.S. App. J109-J111) was filed on August 22, 1985, and the appeal was docketed on September 6, 1985. This Court dismissed the appeal for want of jurisdiction and, treating the papers whereon the appeal was taken as a petition for a writ of certiorari, granted the petition on November 12, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the complaint states a claim that petitioners violated respondent's First Amendment rights by refusing to permit respondent to use utility poles, conduits, and other public property to install a cable television system. INTEREST OF THE UNITED STATES The Communications Act of 1934, 47 U.S.C. (& Supp. I) 151 et seq., grants authority to the Federal Communications Commission to regulate interstate and foreign communications by wire and radio for the purpose of making available "to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service" (47 U.S.C. 151). This Court has recognized that the "power delegated to the FCC plainly comprises authority to regulate the signals carried by cable television systems." Capital Cities Cable, Inc. v. Crisp, No. 82-1795 (June 18, 1984), slip op. 6. Moreover, Congress enacted the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 et seq., in order to establish a "national policy" concerning cable television, including franchising procedures and standards (Section 601(1) and (2), 98 Stat. 2780). A stated purpose of that Act is the encouragement of "the widest possible diversity of information sources and services to the public" (Section 601(4), 98 Stat. 2780). The United States thus has a substantial interest in the proper application of First Amendment standards to the cable television franchising process. STATEMENT 1. This case concerns the City of Los Angeles's decision not to issue a franchise authorizing respondent to provide cable television service. Cable television service is the transmission of video programming from a central location to subscribers' television sets through the use of dedicated cables and other transmission equipment (see Pub. L. No. 98-549, Section 602(5), 98 Stat. 2780). The cables and other equipment needed to provide this service typically are attached to the poles that carry telephone and power company cables or housed in underground conduits that contain other utility cables. J.A. 4a-5a; 47 U.S.C. 224. These poles and conduits sometimes are owned by the local government or a government-owned utility, but the poles and conduits more generally are owned by a private utility company. Even in the latter case, however, these facilities typically make use of the public rights-of-way owned by local government. /1/ Municipalities and other units of local government authorize a cable company to use utility poles and conduits by issuing a franchise. Congress recently enacted a statute endorsing such local regulation of access to utility rights of way. The statute states in pertinent part that "a cable operator may not provide cable service without a franchise" and that "(a)ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way" (Section 621(b)(1) and (a)(2), 98 Stat. 2786). California law provides that "(a)ny city or county * * * may, pursuant to such provisions as may be prescribed by its governing body, authorize by franchise or license the construction of a community antenna television system. In connection therewith, the governing body may prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system" (Cal. Gov't Code Section 53066 (West Supp. 1986)). The City of Los Angeles has exercised the authority granted by the State of California relating to the regulation of cable television service. It adopted a statute stating that "(n)o person, firm, corporation, or organization of any kind shall construct, maintain or operate any community antenna television system any place in the City of Los Angeles unless such person, firm, corporation, or organization shall have obtained a franchise therefor" (Cal. Admin. Code art. 13, Section 13.62(a); J.A. 87a). The City's procedures for issuing a franchise are set forth in a city ordinance (Los Angeles, Cal., Ordinance 58,200; J.A. 68a-82a). In October 1982, the City published a Notice of Sale of a Cable Franchise And Request for Proposals and Instructions To Applicants soliciting applications for the cable franchise for the South Central Area of Los Angeles (J.A. 7a; see also id. at 90a-212a). The notice specified that only one franchise would be awarded (id. at 91a); respondent did not submit an application in response to the notice. The franchise subsequently was awarded to another cable operator (id. at 213a-246a). 2. Respondent is a corporation organized for the purpose of "operat(ing) * * * a cable television business in the (South Central) area of the City of Los Angeles" (J.A. 2a). Respondent alleged in its complaint that it asked petitioner Department of Water and Power and the Pacific Telephone and Telegraph Co. for permission to lease space for television cable on the utilities' poles and conduits. The utilities stated that they would not lease space to respondent until respondent obtained a franchise from the City of Los Angeles. J.A. 6a, 29a. Respondent sought a franchise from the City of Los Angeles; the City refused to issue the franchise. The City stated that a franchise would not be issued because respondent had not submitted an application pursuant to the Notice of Sale. J.A. 6a-7a, 31a. Respondent subsequently commenced this action in the United States District Court for the Central District of California alleging that the City's refusal to grant the request for a franchise violated both the First Amendment and the federal antitrust laws (see J.A. 1a-20a). /2/ The district court dismissed the complaint (J.S. App. C59-C72). With respect to the claim that the City's action violated respondent's First Amendment rights, the court stated that "(t)he City's regulatory scheme, which herein has had the effect of regulating access to the erection, construction, and operation of a cable television system, does not, as a matter of law, violate the First Amendment rights of an alleged prospective cable television operator such as plaintiff" (id. at C70). The court further found (id. at C67-C69) that petitioners were immune from antitrust liability because their conduct constituted state action under Parker v. Brown, 317 U.S. 341 (1963), and its progeny. 3. The court of appeals affirmed in part and reversed in part (J.A. 24a-63a, 64a-67a). /3/ It held that respondent's complaint did allege a violation of the First Amendment. Respondent had contended, inter alia, "that its right to construct a cable television system and disseminate programming via the cable medium should not be conditioned upon having to participate in an auction procedure or be otherwise subject to the City's discretion" (id. at 31a-32a). The court of appeals declined to address the bulk of respondent's allegations; it concluded that it could review the district court's decision to dismiss the complaint by addressing only a single issue (id. at 32a): Can the City, consistent with the First Amendment, limit access by means of an auction process to a given region of the City to a single cable television company, when the public utility facilities and other public property in that region necessary to the installation and operation of a cable television system are physically capable of accommodating more than one system? The court of appeals held that, taking the allegations in the complaint as true, the City's refusal to issue a second cable television franchise violated the First Amendment. The court first rejected petitioners' claims that their decision could be justified by the physical limit upon available space on the utility poles and in the conduits. The court noted that this factual justification was contradicted by the allegations of the complaint and therefore could not be invoked to justify petitioners' decision at this stage of the proceedings. The court rejected for the same reason petitioners' claim that the refusal to issue the second franchise was justified because cable television service constitutes a natural monopoly. J.A. 38a-40a. /4/ The court found that petitioners' interest in protecting public property did justify some regulation of cable television operators. It stated that "(c)able television * * * requires the use of public facilities, and this provides a justification for some government regulation. The City has legitimate interests in public safety and in maintaining public thoroughfares" (J.A. 42a). The court concluded that this justification was not sufficient to uphold petitioners' refusal to issue the franchise, however, because "(a) different and more sharply focused response by the City could protect the legitimate interest of the City and its citizens" (id. at 43a). The court of appeals stated that its conclusion was supported by this Court's decisions applying the public forum doctrine to determine the First Amendment limitations upon the government's authority to limit access to public property. The court of appeals found that the complaint alleged that the utility poles to which respondent seeks access are "a type of public forum" and that the City therefore could not allow only a single speaker to utilize this public property. J.A. 44a-48a. The court of appeals remanded the First Amendment claim for further proceedings consistent with its opinion. INTRODUCTION AND SUMMARY OF ARGUMENT This case comes before the Court in a preliminary and abstract posture and, accordingly, presents only a single, stark question: Do persons seeking to provide cable television service and programming enjoy First Amendment rights to use government property beyond protection against overt content-based discrimination by local government? The district court granted petitioners' motion to dismiss respondent's bare and general claim seeking such protection. We recognize the hazards of constitutional pronouncements in these abstract circumstances; a decision concerning such a general proposition by its nature implicates this Court's oft-stated injunction "'"never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."'" Brockett v. Spokane Arcades, Inc., No. 84-28 (June 19, 1985), slip op. 10 (citations omitted); see also W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312 (1967). Nonetheless, the judgment of the district court -- coming as it does on a motion to dismiss unilluminated by any concrete inquiry into the relevant factual circumstances -- does of necessity implicate just such an abstract proposition. The hazard of deciding the constitutional question presented here on a bare record is heightened by the fact that the case arises against a background of great and rapid change in communications technology. The number of "slots" in the electromagnetic spectrum available for both radio and television broadcasters has increased. Cable technology offers a large number of channels for signals originating in a variety of ways; with the introduction of fiber optic technology the number of channels compressable in a cable of far smaller diameter might in the future be increased by an order of magnitude. Microwave transmission and satellite transmission to individual or satellite master antennas (as on apartment buildings) have expanded the range of signals available to a home television set by yet another order of magnitude. The facilities of traditional common carriers such as telephone companies -- both those facilities already in place and fiber optic cables currently being installed -- are presently capable of originating and transmitting data-carrying signals (with shopping information, news, stockmarket quotes, and other "teletexts") to home computers, television sets, and other receiving equipment. That they do not do so is a function not of technological but of regulatory and other legal constraints. Finally, videotape production and distribution compete with some of the material transmitted by electronic signals. See generally H.R. Rep. 98-934, 98th Cong., 2d Sess. 21-22 (1984). The rapidly changing technological climate in which cable television operates points up the need to consider fully the factual context incident to the review of petitioners' refusal to grant respondent's request for a cable television franchise. The district court erred by reflexively relying upon Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), to dispose of respondent's First Amendment claim (see J.S. App. C70). Red Lion focused specifically on the characteristics -- as they then appeared -- of wireless broadcasting on the electromagnetic spectrum and did not in any way relate to a First Amendment right of access to government property or to other issues pertinent to cable broadcasting. Moreover, as this Court itself has observed, the factual assumptions underlying the constitutional standard adopted in Red Lion are now subject to question. FCC v. League of Women Voters, No. 82-912 (July 2, 1984), slip op. 11 n.11. We submit that the constitutional issue presented here is so closely tied to this complex factual context that it simply is not susceptible to a quick and easy answer. As a threshold matter, respondent, like any cable operator, cannot seriously be denied the status of a speaker exercising First Amendment rights. What respondent seeks to do is to communicate messages -- some of its own choosing, some of its own devising -- on a wide variety of topics and in a wide variety of formats. Surely this enterprise is every bit as much the enterprise of speech, of the communication of ideas, as are the traditional enterprises of newspaper and book publishers, of public speakers, and of pamphleteers. At least as a starting point for analysis, therefore, cable operators enjoy First Amendment protection just as this protection is accorded these other enterprises. Nor is it the least bit relevant that here is a new method of communication, as if somehow the First Amendment carried a grandfather clause granting greater protection to more familiar modes of communication. Indeed, that suggestion is perilous, because if standardization and official imposition were tolerated in new communication technologies, freedom of expression itself would erode with the replacement of old methods of communication. The factor that complicates First Amendment analysis in this context is respondent's need to make use of government facilities to accomplish communication. This Court consistently has recognized that the prohibition on governmental interference with freedom of speech cannot be taken to hold government facilities hostage to individual speakers' demands. Government's duty not to interfere with free expression cannot be transformed into an affirmative duty of government to make its resources and facilities available to those who would engage in free expression. Government could not carry out its functions if its use of its facilities for some limited expressive purposes of its own -- or the granting of limited permission to others to use those facilities -- forfeited its title to control access to those facilities by all persons seeking to exercise their expressive rights. The high schools' internal mail system in Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983), obviously served purposes of communication, yet this Court held that this circumstance alone did not throw the school's mail boxes open to all who wished to communicate. A painter who believes his is a vital and different message has no right to demand that his painting be hung in the National Gallery, though it could hardly be denied that the mission of the Gallery as a whole is as a forum of expression. At the same time, this Court's decisions reflect the conclusion that government is not just like a private property owner, and does not have unlimited discretion to exclude persons seeking to exercise First Amendment rights. The mode of analysis employed by this Court in evaluating the government's interests in cases presenting such First Amendment claims usually seeks to identify the facility to which the speaker demands access as a traditional public forum, a public forum by designation, or as a nonpublic forum. Without casting doubt on these categories we suggest that they represent, after all, no more than an attempt to give specificity to an older, more general standard that balances the government's interest in excluding a speaker against the speaker's First Amendment interests. We draw attention to this, because, although respondent alleged that the pole space necessary for its system constituted a public forum -- by virtue of the fact that petitioners had dedicated the rights of way for cable television use and additional space was available -- in all candor we must admit a certain awkwardness about speaking of telephone poles and underground utility conduits as fora at all, open or closed, public or not. In Members of the City Council v. Taxpayers for Vincent, No. 82-975 (May 15, 1984), telephone poles also made an appearance, but as just another surface to which a pamphleteer of a quite traditional sort sought to affix a traditional written message, as he might affix it to the side of a building, a wall or the side of a truck. In this case, the oddness of determining what kind of a "forum" the poles and conduits might be arises from the circumstance that respondent is not seeking access to the pole as a platform from which to speak (as were the pamphleteers in Taxpayers for Vincent); here respondent seeks to hang its cables from the poles so that it might eventually speak from television receivers in individual homes. The original purpose of these poles and conduits was to accommodate telephone and electric lines and not as a channel for government or anyone else seeking to originate such communicative services. Nor can respondent as a cable operator enjoy that opportunity to speak without being granted some such license. It is for these reasons that we believe there is in order a more searching and particularized inquiry into petitioners' interest in denying access to the poles and conduits than the public forum doctrine might automatically provide. To put the matter otherwise: the status of the poles and conduits as public fora vel non provides not the beginning of analysis, but its conclusion, and that analysis requires far more attention to the circumstances of the case and the basis of the City's claim than is available on a motion to dismiss. Of special concern is the interplay between the City's interests, its stated determination to grant only one cable franchise, and the factual context in which the City's interests and those of various communicators play out. Unfortunately, the absence of any factual record in this case precludes such a searching examination of the relevant interests. We conclude that because it is clear that the First Amendment does provide protection to persons seeking cable television franchises, this Court should affirm the judgment of the court of appeals and remand the case for development of a record concerning the facts relevant to petitioners' decision not to grant respondent a cable franchise. ARGUMENT THE COMPLAINT ALLEGES A VIOLATION OF RESPONDENT'S FIRST AMENDMENT RIGHTS This case presents a narrow but important question concerning local regulation of the cable television industry -- the extent to which the First Amendment restricts a municipality's discretion to limit the number of franchises it issues for the provision of cable television services. /5/ This constitutional question comes before the Court in an extremely abstract posture. The complaint alleges that petitioners acted without any justification in refusing to issue a cable franchise to respondent. No evidentiary record of any kind was developed in the district court, and the district court's reasoning in support of the dismissal was, to say the least, skeletal. Accordingly, the question here is whether, taking the allegations in the complaint as true, the complaint states a First Amendment claim. As we discuss below, the operation of a cable system plainly is an activity implicating speech that is protected under the First Amendment. In view of the allegations of the complaint, and the absence from the record of essential facts regarding petitioners' refusal to issue the franchise, it cannot be said that respondent has failed to state a claim under the First Amendment. This Court therefore should affirm the judgment of the court of appeals reversing the dismissal of respondent's First Amendment claim. 1. The threshold inquiry in assessing respondent's claim is whether the challenged government action interferes with an interest protected by the First Amendment. The operator of a cable system plainly engages in activities that are entitled to First Amendment protection. A cable system operator cannot be distinguished from a movie theater owner, a newspaper publisher, or a book seller -- persons who indisputably engage in activity protected by the First Amendment. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). The cable operator exercises judgment in selecting the programs that are offered to cable subscribers and, in some cases, originates his own programs. Thus, the operation of a cable system involves speech that is protected by the First Amendment. Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1336-1337 (D.C. Cir. 1985); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir. 1982); Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001 (1982); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1054 & n.70 (8th Cir. 1978), aff'd on other grounds, 440 U.S. 689 (1979). Of course, "(t)he conclusion that (the operation of a cable system implicates) protected speech merely begins (the) inquiry. Even protected speech is not equally permissible in all places and at all times." Cornelius in NAACP Legal Defense & Educational Fund, Inc., No. 84-312 (July 2, 1985), slip op. 10. It is well-settled that "at times First Amendment values must yield to other societal interests." Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 (1981) (plurality opinion); see also United States v. Albertini, No. 83-1624 (June 24, 1985), slip op. 11-14; Members of the City Council v. Taxpayers for Vincent, No. 82-975 (May 15, 1984), slip op. 13-14. The next step in the inquiry, therefore, is to ascertain the principles that inform the balance to be struck between respondent's First Amendment interests and the governmental interests invoked to justify petitioners' refusal to issue a second cable television franchise to respondent. 2. In determining the First Amendment standard applicable to respondent's claim, it is important to examine closely the nature of the First Amendment interest asserted by respondent. The issue presented here relates to a unique characteristic of the cable television industry: the fact that a cable television system can hardly be constructed without the dedication of public property for the use of the cable system operator. /6/ Cable connecting subscribers' homes to the point of origination of the programming must be hung from utility poles, housed in underground utility conduits, or otherwise placed in or across the public rights of way that carry telephone wires, electric utility cables, gas pipes, and the rest of the infrastructure needed to serve our modern technological society. Respondent's complaint thus alleges that cables "are attached to public utility poles (or placed in conduit) located on property owned in fee by the public utility, and on, in or under easements owned by the public utility running over either public or private rights-of-way." J.A. 4a-5a; see also Section 621(a)(2), 98 Stat. 2786. This use of public property is essential to the medium itself; at the same time, the contemplated use requires a permanent commitment of public resources. /7/ Although this Court has not addressed the First Amendment standard applicable to government decisions refusing to permit cable system operators to use government property, the Court has considered in a variety of other contexts claims that the First Amendment requires the government to permit a speaker to use public property. In the broadest sense, the validity of a decision denying such access depends upon whether "the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius, slip op. 11; see also Niemotko v. Maryland, 340 U.S. 268, 282-283 (1951) (Frankfurter, J., concurring in the result). In recent years the Court has utilized the public forum doctrine to aid in this inquiry, looking to the character of the particular public property in order to determine the extent of the government's authority to limit access to the property. Cornelius, slip op. 10-15; United States v. Grace, 461 U.S. 171 (1983); United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). When the property to which the speaker seeks access is a traditional public forum -- such as a public park -- or "when the Government has intentionally designated a place * * * as a public forum," a speaker can be excluded only when his exclusion is necessary to serve a compelling government interest (Cornelius, slip op. 11). Regulation of such property generally is restricted to limitations upon the "time, place, and manner" in which the property is used. United States v. Grace, 461 U.S. at 177. If the government property is a nonpublic forum, however, "(a)ccess * * * can be restricted as long as the restrictions are 'reasonable and (are) not an effort to suppress expression merely because public officials oppose the speaker's view'" (Cornelius, slip op. 11, quoting Perry Education Ass'n, 460 U.S. at 46). This latter doctrine recognizes the government's interest in maintaining discretion and control over its property even though it permits some expressive uses of that property. For example, a decision to permit a single newsstand to operate in the lobby of a public building does not in itself convert the lobby into a public forum. In a sense, then, the nonpublic forum standard is just a specification of the general First Amendment balance in the context of such governmental concerns. Public forum analysis, however, seems inapposite to an assessment of petitioners' refusal to issue a cable franchise. Cf. Taxpayers for Vincent, slip op. 25 n. 32 ("it is * * * of limited utility in the context of this case to focus on whether the tangible property itself should be deemed a public forum"). The utility poles and conduits that respondent seeks to use in constructing its cable system seem far afield from traditional public fora because they have not "by long tradition or by government fiat * * * been devoted to assembly and debate" (Perry Education Ass'n, 460 U.S. at 45). Similarly, these properties cannot readily be classified as public fora by designation. Although the court of appeals concluded (J.A. 48a) that a state statute dedicating surplus space on utility poles for use by cable operators was sufficient to transform the poles into public fora, this conclusion is problematic. On one hand the statute does not provide that the poles are generally open to all for such activities, and therefore does not appear to meet the strict test necessary to establish a public forum by designation. See Cornelius, slip op. 13-15. On the other hand, the requirements as to the number of channels and their utilization in both the city franchise (J.A. 226a) and Sections 611 and 612 of the Cable Communications Policy Act of 1984 (98 Stat. 2782-2785) may in these novel circumstances commit petitioners to much more permissive standards for access to the poles and conduits. Thus, this case seems to escape the categories of conventional public forum analysis. Indeed, the attempt to apply the public forum doctrine is further complicated by the fact that the extent of the government's ownership and control of this property is likely to vary from case to case. Some utility poles, for example, may be government owned; others may be the property of utilities, but property impressed with various obligations permitting the government to regulate the use of the poles or confer easements for their use. See pages 2-3 note 1, supra. As we have discussed, the category of "non-public" fora is designed to permit the government to retain its discretion over the use of public property. If, as may be the case with some utility poles, the government's authority already is restricted because the poles in fact are owned by others, the rationale underlying the public forum doctrine might not be applicable in this context. The situation presented here differs in other ways from the factual contexts in which this Court has applied the public forum doctrine. Respondent does not seek to use government property as the physical site for its expressive activity. It seeks to use utility poles and underground conduits to carry the cable wires that transmit respondent's speech; the actual communication occurs in the homes of cable subscribers. In the typical public forum case, by contrast, the government property is the site of the speech itself. In Taxpayers for Vincent, for example, the plaintiffs argued that they were entitled to hang posters on the city's utility poles, and the expressive activity thus took place on the government property -- the utility poles. In some circumstances, a "means of communication" (Cornelius, slip op. 12) can be amenable to public forum analysis. In Perry Education Ass'n, for instance, the government constructed a communication channel for its own expressive use, a circumstance for which the public forum doctrine is a natural analytic vehicle. And in United States Postal Service v. Council of Greenburgh Civil Ass'ns, supra, the relevant "fora" -- official postal boxes -- were merely a part, though an integral one, of the Postal Service, a unique communications system itself unquestionably a public forum. /8/ In each of these cases, the categories of the public forum doctrine succeeded in encapsulating the interests on each side of the First Amendment equation. The use of public facilities for cable transmission, on the other hand, fits the public forum analysis far less readily. From the perspective of the cablecaster, utility poles and underground conduits appear as electronic "streets" or "sidewalks." Just as newspaper deliveries make use of public roads, the delivery of cablecasts must make use of these modern transportation conduits, albeit with considerably more consequent disruption to the public domain. /9/ It would be anomalous to analyze local attempts to franchise or regulate newspaper deliveries in terms of the public forum doctrine. /10/ Analysis also is not furthered by seeking to characterize utility poles in this context as public or nonpublic fora. Finally, as we have pointed out, respondent cannot operate a cable system without using government property. There are, to be sure, other means by which respondent can exercise its First Amendment rights; /11/ nonetheless it will be unable to operate a cable system if petitioners refuse to issue a franchise. This Court has noted that each medium of expression must be analyzed on its own terms. See Metromedia, Inc. v. City of San Diego, 453 U.S. at 501 (plurality opinion); FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). In this rapidly developing industry even the lines between media are unclear. This is another reason for more detailed consideration of the relevant factors in assessing petitioners' decision to permit no more than one cable operator to utilize government property in this manner. /12/ Thus, at least in this case -- where the Court first is presented with this constitutional question in the cable television context -- the case is not automatically answered by resort to the public forum doctrine but, in our view, requires consideration of all the interests that are relevant under the First Amendment. /13/ A broad inquiry is necessary to resolve the question whether petitioners' action violated the First Amendment. As Justice Frankfurter observed in another context, "(a)djustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing" (Niemotko v. Maryland, 340 U.S. at 275). In general terms, the inquiry requires an assessment of petitioners' interest in limiting cable franchises to a single operator and respondent's interest in obtaining a franchise so that it may exercise its First Amendment rights. As Justice Frankfurter stated, "(w)hile the Court has emphasized the importance of 'free speech,' it has recognized that 'free speech' is not in itself a touchstone. The Constitution is not unmindful of other important interests, such as public order, if interference with free expression of ideas is not found to be the overbalancing consideration." Id. at 282; see also Cornelius, slip op. 11. A variety of factors are relevant in this inquiry, including the reasons for the government action; the type of speech that is regulated; the public property involved and that property's customary uses; and the availability of alternative facilities for the exercise of First Amendment rights. Niemotko, 340 U.S. at 282-283. Only by assessing all of the relevant considerations can this Court be assured that the result will properly effectuate the free speech guarantee in this context. 3. We submit that the state of the record in this case precludes the plenary consideration of these various factors that is approprate in order to evlauate the propriety of petitioners' decision under the First Amendment. First, the government interests underlying petitioners' decision are not clearly set forth in the record. The complaint states that petitioners refused to issue the second franchise because respondent did not participate in the process set in motion by the issuance of the Notice of Sale (see J.A. 6a-7a; page 4, supra). Petitioners' brief, on the other hand, invokes a variety of other justifications for petitioners' action, including aesthetics, safety, an interest in preserving facilities for future use, and petitioners' view that cable service constitutes a natural monopoly (Pet. Br. 45-49). But nothing in the record sets forth the actual reasons for petitioners' decision. Petitioners implicitly concede that the record is defective in this regard by arguing (Pet. Br. 44-45) that the refusal to issue the second franchise was a legislative decision. However, petitioners have not pointed to any legislative determination that only a single franchise should be issued. Although the Los Angeles City Council adopted the Notice of Sale indicating that a cable franchise would be issued, the franchise itself provides that it is nonexclusive (J.A. 218a). Thus, the Council apparently did not decide that the issuance of a second franchise would be inappropriate. /14/ Moreover, the record does not indicate that the legislature was the government decisionmaker that denied respondent's request for a franchise (J.A. 6a-7a). Under these circumstances, it is not possible to evaluate the claim that First Amendment rights have been infringed. The reasons for the government action are neither self-evident nor substantiated in any way in the record. Of course, a government decision need not always rest on an elaborate factual showing. In some cases, the reasons may be recited in an administrative record; in others an affidavit setting forth the reasons accompanied by a motion for summary judgment undoubtedly would suffice. In the circumstances presented here -- where the government decisionmaker is not the legislature, the reasons for the government action are not self-evident, and the government action infringes First Amendment interests -- some evidence regarding the reasons for the government action is a necessary prerequisite to evaluating the interests underlying the government decision. For this reason alone, the case should be remanded for further factual development. There is, in addition, a second defect in the record that precludes the balancing of interests required to ascertain the validity of petitioners' claim under the First Amendment. In order to determine the weight to accord a proffered government justification, some analysis of the applicability of the justification is required. In some cases, these considerations will be obvious. For example, the elimination of the campaign posters at issue in Taxpayers for Vincent plainly implicated the government interest in advancing aesthetic values. In other cases, involving considerations outside general experience, the reasons for the justification may be less clear. Thus, in Cornelius, where the reasons for the challenged government decision related to the interest in maximizing the success of the fundraising campaign while minimizing controversy and the need for administrative resources, the Court gave somewhat more consideration to evidence of record concerning the government justifications. Slip op. 17-22; see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 73 (1981) (rejecting justification advanced in support of statute that infringed First Amendment rights on the ground that no evidence had been presented supporting the justification and "it is not immediately apparent as a matter of experience" that the justification was applicable in the circumstances of the case). Here, nothing in the record permits any type of assessment of the justifications proffered by petitioners. For example, petitioners assert that their refusal to grant a second cable franchise is justified by their interest in avoiding "visual blight" (Pet. Br. 46). Such aesthetic concerns certainly can be a valid justification for government restriction of First Amendment rights. See Taxpayers for Vincent, slip op. 15-17; Metromedia, Inc. v. City of San Diego, 453 U.S. at 510-511 (plurality opinion). However, it is impossible to assess the validity of the justification in this case without knowing something about the effect of an additional wire upon the appearance of the utility poles. Petitioners already have decided to permit one cable television operator to place its wires on the utility poles and in the conduits; it is not immediately clear why visual blight would set in if only one or two or even several more cables beyond the monopoly franchise they propose were allowed. If visual blight or other inconvenience would only set in after two or more cables were allowed, petitioners do not explain why they should limit access to only one. In addition, the standards respondent has used in allocating these resources for non-speech purposes are relevant because telephone and electric power cables presumably would implicate the same aesthetic concerns. Surely petitioners cannot limit only cable television wires on this ground without some compleling reason to do so. Petitioners set forth in their brief (at 25-30, 47-48) a variety of other reasons supporting their decision. They assert that cable television service is a natural monopoly and that the issuance of an exclusive franchise simply avoids a waste of economic resources; that exclusive franchising is needed to ensure that cable service will be available to all city residents; and that the issuance of a single franchise will preserve public resources for possible future uses. But they have not substantiated their claim that these reasons were the bases for the decision to grant only an exclusive franchise, even though the complaint alleges that "competition in the same marketplace by other members of the same medium is both technologically and economically feasible" (J.A. 4a). Nor have the factual circumstances been sufficiently developed to test the adequacy of any such reasons in a First Amendment context. We do not here suggest a standard that subjects proffered justifications to intense judicial scrutiny (see Metromedia, Inc. v. City of San Diego, 453 U.S. at 570 (Rehnquist, J., dissenting)), or that the courts should "fine tune" government decisions to accord with their view of the relevant interests (see White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 1529 (D.C. Cir. 1984)). We do suggest that a record completely devoid of evidence is insufficient to permit an assessment of petitioners' interest in limiting the number of cable franchises. For these reasons, the court of appeals correctly concluded that respondent's First Amendment claim should not have been dismissed at this stage of the proceedings. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General DOUGLAS H. GINSBURG Assistant Attorney General JACK D. SMITH General Counsel Federal Communications Commission FEBRUARY 1986 /1/ Here, for example, respondent sought access to utility poles owned by petitioner Department of Water and Power, a municipal utility, as well as poles owned by Pacific Telephone and Telegraph Company, a private utility. J.A. 2a, 6a. California has adopted a statute requiring private utilities to make excess capacity on poles and in conduits available to cable television operators (see Col. Pub. Util. Code Section 767.5 (West Supp. 1986)). /2/ Respondent also asserted that the City's action violated the California Constitution and certain provisions of state law. J.A. 16a-18a. /3/ The court of appeals upheld the district court's conclusion that petitioners were immune from liability under the federal antitrust laws (J.A. 53a-63a, 65a-67a). /4/ A portion of the court of appeals' opinion is omitted at the end of page 38a of the joint appendix. This part of the opinion appears at pages A25-A26 of the appendix to the jurisdictional statement. /5/ In the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 et seq., Congress expressly affirmed the authority of local governments to issue franchises for cable television service. See Section 621, 98 Stat. 2786. That Congress authorized municipalities to grant "(one) or more" franchises does not, of course, conclude the issue in this case. There may be circumstances in which the grant of only one franchise is fully justified, and in such circumstances the Act authorizes the granting of a single franchise. The passage in the legislative history to the effect that the statute "grants to the franchising authority the discretion to determine the number of cable operators to be authorized to provide service in a particular geographic area" (H.R. Rep. 98-934, 98th Cong., 2d Sess. 59 (1984)) is wholly consistent with this view of the bearing of the Act on this case. Respondent's complaint challenged a variety of other requirements imposed by petitioners in connection with the issuance of a cable television franchise (see J.A. 8a-10a), some of which also are addressed in the federal statute. The court of appeals did not address the constitutionality of these requirements (id. at 32a-33a), and no question regarding the permissibility of these requirements is now before this Court. /6/ As we noted above, this case presents no question regarding the validity under the First Amendment of restrictions upon a cable operator's choice of programming, or the permissibility of other sorts of obligations imposed upon cable television franchisees. Cf. FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). /7/ The nature of the government interest in this property will vary from locality to locality. In some cities or towns, the local government may own the utility poles and conduits; in others, the property may be owned by a utility company, but the local government may have a right -- in the nature of an easement -- that permits the government to authorize the use of the utility pole or conduit. This right generally results from the fact that the poles and conduits occupy a publicly-owned right of way. /8/ Similarly, a park considered as a whole may be a public forum, but a park ranger station within it need not be. /9/ Of course, if the cable operator had the option of constructing its own set of poles or conduits to carry its cables, the case would be very different. But, as with the use of public roads by newspapers, cable operators generally are not permitted to erect such a competing transportation conduit. /10/ Streets and sidewalks generally may be considered to be public fora, (see United States v. Grace, 461 U.S. at 180; Hague v. CIO, 307 U.S. 496, 515-516 (1939) (opinion of Roberts, J.)), but this is due to their traditional use as meeting places and fora for direct expression, not because of their purely transportative functions. Yet the latter is the only capacity in which they are used by newspaper deliveries. /11/ For example, respondent could use the commercial access channels on the cable system operated by the company selected by petitioners, it could purchase a broadcast television station, or it could operate a direct broadcast satellite station or some other means of communication. /12/ In addition, respondent does not seek to use government property for some transient period of time as did most of the speakers in the public forum cases. Instead, it seeks a permanent right to occupy this public property in a manner that could be argued to constitute a taking as applied to private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). This circumstance also weighs in favor of a more searching analysis of the relevant factors in assessing respondent's First Amendment claim. /13/ We note that petitioners do not rely upon the constitutional analysis applied by the Court in Red Lion Broadcasting Co. v. FCC, supra. Nor could they. Whatever one's views of Red Lion, see page 8, supra, it plainly has no application to this case. First, Red Lion dealt with a situation in which scarcity of the elctromagnetic spectrum was found to justify regulation. By contrast, under the allegations of the complaint in this case, we do not know the degree or kind of scarcity that may obtain apart from the scarcity artificially created by the very government franchising regulations whose validity is in issue. Second, Red Lion assumed that uncontrolled use of the electromagnetic spectrum would lead to signal interference and thus interfere with everyone's attempt to communicate; no such possibility has been alleged here. At most there may be a limit -- nowhere explored -- to the number of cables the poles and conduits may conveniently accommodate. Finally, Red Lion involved government regulations concerning broadcast content rather than a claim more analogous to respondent's claim here, e.g., that the government was required to license all available broadcast frequencies. /14/ The statutes cited by petitioners (Pet. Br. 44-45) similarly do not set forth any legislative determination that only a single franchise should be issued.