Regulation of cable television by local governments, already a major political battleground in the Washington area, could become even more chaotic as a result of a Supreme Court decision yesterday limiting the authority of some jurisdictions to control the industry..
Montgomery and Prince George's county officials expressed fear that exclusive franchising of cable operations are now in jeopardy as a result of the court's action. They said the ruling could allow rival cable companies to penetrate an existing franchise area and that it may be difficult for the county governments to revoke existing franchises.
District of Columbia officials, just beginning to grapple with the cable television issue, said that it will raise more concerns for them when drafting legislation in the coming years.
But many legal experts said yesterday the decision goes beyond the regulation of cable television into other areas such as regulating airports, taxicabs and zoning.
In its ruling, the court said that home rule municipalities -- local governments that have been granted broad regulatory powers by their respective state legislatures -- are subject to lawsuits charging them with antitrust violations when regulating the cable television business. Such municipalities previously thought that they had implied authority from their home rule charters to regulate cable television and other businesses and that they, like states, were immune from lawsuits charging them with creating monopolies, price fixing or being anticompetitive in regulating industries.
But the court ruled yesterday that authority for regulating cable television must be specifically granted by the state. The court said that without that authority, home rule jurisdictions have no more immunity from antitrust laws than nonhome-rule localities.
Jurisdictions without home rule, such as the state of Virginia, already were subject to antitrust lawsuits and would not be affected by the court's ruling, according to the Virginia attorney general's office. Local jurisdictions such as Arlington County and the City of Alexandria, which already have cable operations, received explicit authority to regulate cable television from the state legislature.
While the ruling does not specifically void home rule, some legal experts said it may hinder the ability of home rule jurisdictions such as Montgomery and Prince George's counties to regulate businesses without fear of being sued under antitrust laws.
"When deciding they want to control taxi cabs, it's anticompetitive, it can be argued," said Ross Davis, an attorney representing the National League of Cities, giving another example of the kind of legal problems these local governments might face. He also said the decision is a threat to the ability of home rule jurisdictions to apply zoning laws without specific authority from the state legislatures.
"If they say only one hotel in the area, that's anticompetitive," Davis said businesses could argue. "This case suggests more problems for local government, and I think that's wrong."
Although some Prince George's officials felt that their authority to award cable franchises was diminished, Dolores Early, executive director of the Prince George's Cable Commission, said she doesn't "think the issue is that broad."
"If it were to go that far," far enough to weaken franchising authority altogether, she said, "we'd have chaos."
Early said she felt that the language of the Maryland statutes allowing the county specific authority to grant franchises might be sufficient to extend the state's antitrust immunity. "I don't think it changes anything for us, although of course I haven't seen the decision," she said. "There are other counties in the state that aren't home rule counties that have other forms of government. It might affect them."
Assistant Montgomery County Attorney Katherine Hart said that although the franchising authority granted to the county doesn't specifically apply to cable television, "it certainly applies to the cable television situation."
"The worst case is that cities will have no regulating authority and will not be able to conclude that a monopoly service in a given area is not in the best public interest," said David Owen Korte, a vice president of Cable Television Information Center. "We are still trying to sort it out for ourselves, but it is not positive for city governments and their ability to regulate cable television."
The District is still grappling with the issue of home rule and will have to study recent rulings on the issue in addition to the Supreme Court case, said D.C. Corporation Counsel Judith Rogers.
The city council is considering legislation to create a design commission to study what other communities have done in the cable television area, and legislation to allow cable television in the District will take another two years, according to General Council Lawrence H. Mirel of the District Council. When the city does consider its legislation, the city will have to study carefully the justices' ruling, Mirel said.
Concerns raised by the Supreme Court decision would be how many cable companies should be allowed, how the areas of service should be divided, and whether communities should own the franchises, Mirel said.