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O'CONNOR & HANNAN <br /> ATTORNEYS AT LAW <br /> • Steve Sarkozy <br /> April 12, 1990 <br /> Page 5 <br /> clear . At least three Federal Courts in California have held <br /> that the imposition of community programming requirements on a <br /> cable company violates that cable company' s First Amendment <br /> rights. In those court cases the company was held not to have to <br /> provide any community programming. Other Federal Courts have <br /> held to the contrary, however, the Supreme Court has not <br /> addressed the issue. Therefore, the outcome of a Minnesota <br /> Federal Court challenge was unclear . <br /> The Section 625 request for modification was based on the <br /> federal Cable Act ' s allowance that if a franchise requirement was <br /> commercially impracticable, a cable company need not provide the <br /> service. The company was prepared to argue that the Franchise- <br /> required level of performance for community programming was not <br /> commercially practicable, excusing its performance. No Federal <br /> Court has dealt with the commercial impracticability standard, <br /> however, one Federal Court has forbidden a city to impose fines <br /> during a dispute over commercial impracticability. This fight <br /> • could have delayed the further development of community <br /> programming for a year or more as the issue wound its way through <br /> Federal Court. <br /> THE COMPANY'S ARGUMENT <br /> The Commission was presented the following arguments that the <br /> company was prepared to make in Federal Court: <br /> 1. COMMERCIAL IMPRACTICABILITY, see above. <br /> 2. THE AMOUNTS IN THE ORIGINAL OFFER OF THE COMPANY FOR <br /> COMMUNITY PROGRAMMING WERE ONLY ESTIMATES. The company <br /> argued that the monies proposed over eight years ago <br /> were merely an estimate as to the amounts that would be <br /> required for an adequate community programming effort. <br /> The company argued that the amounts pledged to the North <br /> Suburban area were in excess of virtually any amounts <br /> pledged throughout the country and were not required for <br /> a successful community programming effort. They had <br /> argued previously that the subscribers would not <br /> tolerate the knowledge that over $2.00 of their monthly <br /> cable bill was going for community programming. <br /> • <br />