Cable Franchising and the First Amendment: Preferred Problems, Undesirable Solutions

The right to construct a cable system has usually been granted to a sole franchisee based on competitive bidding. A series of lawsuits in the 1980's has argued that exclusive grants violate the first amendment rights of excluded, would-be operators. This Article examines the issue as framed by the U.S. Supreme Court's decision in City qf Los Angeles v. Preferred Communications, Inc., concluding that its instruction for a factual examination of a city's justification for exclusive licensing will be mostly unproductive. It concludes that exclusive franchising provided for by Congress in the 1984 Cable Act does not generally violate the first amendment and that the Court's approach in Preferred is misguided.