Full opinion text
ORDER GRANTING SUMMARY JUDGMENT TO CITY OF RIVIERA BEACH AND GWC 104, INC. MARCUS, District Judge. THIS CAUSE comes before the Court upon Plaintiff Telesat Cablevision Inc.’s (“Telesat”) Renewed Motion for Partial Summary Judgment filed on March 19, 1990, Defendant City of Riviera Beach’s (“City”) Motion for Partial Summary Judgment also filed on March 19, 1990, and Defendant Intervenor GWC 104, Inc.’s (hereinafter “Comcast”) Motion for Partial Summary Judgment. At issue today is a broad-based attack on the City’s codified efforts to regulate cable franchises within its boundaries. Upon reviewing the pleadings and hearing extensive argument, this Court has determined that the Ordinance at issue falls within the lawful power of the municipality to regulate cable television, and that its provisions are consonant with the Constitution and statutory enactments of Congress and the State of Florida. Accordingly, Plaintiff’s Motion must be DENIED, Defendant’s Motion must be GRANTED, and Defendant Intervenor’s Motion must be GRANTED. We reach this decision for the following reasons. I. Factual Background This consolidated action arises from a long-standing dispute between the parties regarding Telesat’s efforts to enter the cable television business in the City of Riviera Beach. In early 1985 several condominium associations located on Singer Island within the City of Riviera Beach contacted Telesat regarding the possibility of Telesat providing cable service' to its residents. Soon thereafter, Telesat entered into contracts with four condominiums located along State Road Alt. A1A to provide cable service. Initially, Telesat employed temporary satellite dishes placed on the premises of three of the four serviced buildings in order to provide service to the contracting condominiums. Service to the fourth building was provided through the use of a cable running from a satellite dish located on the property of an abutting building. At the time, Telesat did not pos-, sess a permit to run cable along public rights-of-way. In May 1986, Telesat decided to apply to the City for a franchise to operate a cable system using public rights-of-way within the city. Although the City had not instituted formal procedures to evaluate applications for cable television franchises, two companies were operating cable franchises within Riviera Beach. The City had previously granted franchises to Teleprompter Corporation, subsequently acquired by Comcast, and Perry Cable T.Y. Throughout the summer of 1986, representatives from Telesat met with city officials to try to reach agreement on terms for a franchise agreement between Telesat and the City. After four months of negotiations, the City and Telesat reached agreement on a proposed franchise contract. On September 10, 1986, the City Council reviewed the proposal, suggested changes and scheduled a vote for September 17, 1986, to approve the application. Prior to the scheduled final vote, representatives of Comcast contacted the City and requested the opportunity to make a presentation in opposition to Telesat’s application for a franchise. Pursuant to this request, the City Council rescheduled consideration of Telesat’s application. On October 1, 1986, the City Council deferred action on Telesat’s application pending a study of the Palm Beach County cable franchising ordinance. At that time, City staff conducting the study were instructed to report back to the City Council in ninety days. By early December 1986 Telesat was under considerable pressure from condominium owners to construct a cable system in order to eliminate the need for the use of temporary satellite dishes on condominium property. Telesat had previously obtained a permit from the Florida Department of Transportation (“DOT”) to build its cable system along the Alt. A1A right of way. Despite the inaction of the City Council on its application for a franchise, Telesat obtained a building permit from the City on December 16, 1986. With its building permits from DOT and the City in hand, Telesat commenced construction of a cable system along Alt. A1A on the day it obtained its City building permit, notwithstanding that a cable franchise had not been awarded by the City. On December 18, 1986, Comcast became aware that Telesat had started installing a cable system on Singer Island and complained to the City about it. City Manager William Wilkens proceeded to inform Telesat that it must cease construction of the cable system because it lacked a City cable franchise. In accordance with Wilken’s order, Telesat immediately halted work on the system. On December 24, 1986, Telesat notified the City of its intention to seek an injunction restraining the City from interfering with Telesat’s construction of a cable system along the Alt. A1A right of way. Upon receipt of this notification, the City requested that Telesat refrain from bringing an action until the City Council had an opportunity to reconsider Telesat’s application. On January 7, 1987, in accordance with the recommendation of the City Attorney, the City Council approved a resolution authorizing the City Attorney to sign an agreement with Telesat whereby Telesat would agree to abstain from bringing an action against the City in return for the City’s agreement to grant Telesat a citywide cable franchise. Pursuant to the City Council’s action, the City Attorney and a representative of Telesat entered into a franchise agreement on January 15, 1987. As a result of this agreement, Telesat was given the right to maintain a cable system throughout the City of Riviera Beach. On February 4, 1987, Telesat completed construction of the system on Singer Island and commenced providing cable service to residents of the Island. Rather than ending the dispute over cable franchising in Riviera Beach, the grant of the franchise to Telesat set off a new wave of controversy. On January 30,1987, Comcast sued the City in Palm Beach County Circuit Court, contending that the City had employed improper procedures in approving the franchise agreement with Telesat. Comcast’s suit sought the following relief: (1) a declaration that the City Council failed to follow City Code requirements regarding execution of contracts; (2) an injunction enjoining the City from allowing Telesat to construct a cable system within the City; and (3) damages in excess of $5,000. At the same time, Comcast also filed a motion for a temporary injunction enjoining the effectiveness of the City’s franchise agreement with Telesat. On February 11, 1987, the state court entered a temporary injunction ordering that the City “is enjoined from proceeding under said contract unless and until it presents the Court a contract which complies with its code and is further enjoined from allowing any third party with which it has attempted to contract, from preceding under the terms of the alleged contract.” Temporary Injunction Case No. CA 87-843 AI, reprinted in Plaintiff’s Appendix to First Motion for Partial Summary Judgment at 428-30. On February 27, 1987, counsel for Comcast wrote to the City complaining that Telesat was continuing to provide cable service on Singer Island despite the fact that the state court had entered an order declaring Telesat’s franchise invalid. Following notification from Comcast, the City sent counsel for Telesat a letter advising Telesat of the state court injunction and ordering Telesat to cease violating the injunction. Despite the letter from the City, Telesat continued operation of its cable system. On March 5, 1987, Comcast orally threatened to seek contempt proceedings due to the City’s failure to take further action to compel Telesat to discontinue operation of its cable system. On March 12, 1987, the City filed a Third Party Complaint against Telesat in Palm Beach County Circuit Court, alleging that Telesat did not have a valid cable franchise and therefore was barred from providing cable service under both the state court injunction and the Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2779 (1984) (“Cable Act”). The action sought (1) a declaration that Telesat illegally operated a cable television system within the City, and (2) a temporary and permanent injunction prohibiting Telesat from continuing to operate within the City until it obtained a valid and legal franchise. Third Party Complaint filed in Case No. CA 87-843 AI, reprinted in Plaintiff’s Appendix at 431-33. Telesat removed this state court action to federal court on March 23, 1987. On the same day that Telesat removed the state court action, Telesat filed suit in federal court seeking preliminary and permanent injunctive relief prohibiting the City from interfering with Telesat’s provision of cable service within Riviera Beach. During the early pendency of this action, the Florida Legislature took up the matter of the regulation of cable franchises. On June 4, 1987, the Governor of Florida signed Florida Statute Section 166.046 into law. That statute establishes standards to be employed by municipalities within the state when granting cable television franchises. On July 1, 1989, shortly after Fla.Stat. § 166.046 became law, the City enacted Ordinance No. 2335 which established Article C of Chapter 11 of the City Code. The City Cable Ordinance requires that parties who wish to provide cable service within the city must obtain a cable franchise from the City. In addition, the Ordinance sets forth detailed procedures and criteria for determining if an individual application for a franchise should be granted. The Ordinance sets forth various requirements that parties wishing to receive a cable franchise must meet and fees that they must pay in order to receive favorable consideration from the City. The broad application requirements of the statute are as follows: (1) demonstration of sufficient financial capability to construct the cable system; (2) demonstration of a sufficient level of financial feasibility for successful operation; (3) demonstration of the technical excellence of the proposed system; (4) information concerning the potential for disruption of existing utilities and rights-of-way caused by installation of the proposed system; (5) information demonstrating the rate and feasibility of the construction schedule for the proposed installation as well as the applicant’s commitment to upgrading the system; (6) information concerning the applicants familiarity with the area to be served; (7) information demonstrating the extent to which the existing cable systems within the community are meeting community needs and interests; (8) such other information as the 'City Council may require in order to adequately evaluate the application. See City Ordinance No. 2335 § 11C-1.12, reprinted in Plaintiff’s Appendix to first Motion for Partial Summary Judgment, at 546-61. The Ordinance further provides for the following considerations to be employed by the City Council in determining the “impact and viability of multiple cable system grantees serving the City”: A. The capacity of public rights-of-way to accommodate the cable system; B. The present and future use of the public rights-of-way to be used by the cable system; C. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; D. The financial ability of the franchise applicant to perform; E. The potential additional long-term benefits to subscribers; F. The potential adverse effect on financial and operating capability of current franchisees and their capability to provide quality service and system expansion; and G. Other societal interests as are generally considered in cable television franchising. City Ordinance No. 2335 § 11C-1.3. In addition to providing standards and procedures for the application and granting of cable franchises, the Ordinance also establishes requirements for the operation of franchises which are granted under the Ordinance. The Ordinance provides that grantees must meet the following requirements, among others: (1) all areas currently served by another cable system must be served by the grantee as well within thirty-six months of the date the franchise is granted; (2) all portions of the franchise area not currently served by another cable system must be served within twelve months of the date the franchise is granted; (3) the grantee’s cable service must be uniform and non-discriminatory as to rates, programming and signal quality throughout the franchise area; (4) franchises are to be granted for a period of no more than fifteen years with renewals available for no more than ten years; (5) access to cable service may not be denied to any group of potential subscribers because of the income of the residents of the area in which such group resides; (6) grantees must pay the city five percent of the gross revenue received from service within the city; (7) each franchisee is required to post a corporate surety bond with the city; (8) grantees must maintain adequate insurance to cover potential liability resulting from operation of the system; (9) grantees must indemnify and hold the City harmless from all liability arising out of, or pertaining to, the installation of grantee’s facilities and the operation of the cable system within the city; (10) all transfers and sales of franchises must be approved by the city; (11) all grantees must meet various service requirements established by the Ordinance; (12) free basic service must be provided to schools and other public buildings; (13) in case of an emergency, all franchisees must make their facilities available to the City; (14) grantees must meet safety criteria established by the Ordinance; (15) franchisees must invoke non-discriminatory employment practices; (16) the city must be provided with the right to inspect various aspects of the franchisees operation; (17) the grantee must provide one channel on its cable system for the sole use of the City and its designees; (18) Thirty days notice of changes in services rates must be provided to the public. See City Ordinance No. 2335 §§ 11C-1.4— 11C-1.16. On July 27, 1987, the interim city manager sent Telesat a letter suggesting that it apply for a franchise under the recently enacted Ordinance. After protracted negotiations, during which time the lawsuit was held in abeyance, the City and Telesat were not able to agree on terms by which Telesat would be granted a franchise. On May 27, 1988, Telesat moved for leave to file an Amended Complaint alleging facts which had occurred subsequent to the filing of the original complaint, including the enactment of the City’s Cable Ordinance. Telesat’s original claim for relief was supplemented by a request for a broad declaration that Ordinance No. 2335 and any attempts by the City to enforce the Ordinance be declared unconstitutional, and by a request for an injunction against the City’s enforcement of the Ordinance. See Plaintiff’s Motion to Amend Complaint and Amended Complaint. By Order of August 18, 1988, this Court granted Plaintiff leave to amend the complaint. By Order of January 12, 1990, we denied Plaintiff’s Motion for Partial Summary Judgment. We now consider the cross-motions for partial summary judgment filed by all parties. II. Summary Judgment Standard The standard to be applied in reviewing a summary judgment motion is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure: The judgment sought shall be rendered forthwith if the pleading, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It may be entered only where there is no genuine issue of material fact. Moreover, the moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In applying this standard, the Eleventh Circuit recently explained: In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; [Environmental Defense Fund v.] Marsh, 651 F.2d [983] at 991. [(5th Cir.1981)]. All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co., 420 F.2d at 1213. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronics [Electronic Techniques, Inc. v. Wackenhut Protective Systems Inc.] 669 F.2d [1026] at 1031 [ (5th Cir.1982) ]; Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970). Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleading or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). See Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir.1977). Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th Cir.1982); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986). The United States Supreme Court has recently provided significant additional guidance as to the evidentiary standard which trial courts should apply in ruling on a motion for summary judgment: [The summary judgment] standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court in Anderson further stated that “[t]he mere existence of a scintilla of evidence in support of the position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. at 2512. In determining whether this evidentiary threshold has been met, the trial court “must view the evidence presented through the prism of the substantive evidentiary burden” applicable to the particular cause of action before it. Id. at 254, 106 S.Ct. at 2513. If the non-movant in a summary judgment action fails to adduce evidence which would be sufficient, when viewed in a light most favorable to the nonmovant, to support a jury finding for the non-movant, summary judgment may be granted. Id. at 254-55, 106 S.Ct. at 2513. In another case, the Supreme Court has declared that a non-moving party’s failure to prove an essential element of a claim renders all factual disputes as to that claim immaterial and requires the granting of summary judgment In our view, the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (emphasis added). In the sections to follow, the Plaintiff's and Defendant’s claims for Summary Judgment will be evaluated separately against this standard. III. Analytic Framework This case squarely raises the question whether the Defendant City’s detailed Ordinance violates the free speech and press provisions of the First Amendment to the Constitution. For the reasons detailed at length below we hold that the City’s regulation of cable television neither violates the command of the First Amendment nor the statutory framework created by Congress or the State of Florida for the regulation of cable television. Initially, the parties have disagreed about the appropriate legal standards for measuring the constitutionality of the City’s Ordinance. The Defendant City of Riviera Beach argues that since the aerial and underground rights-of-way impacted by cable operators’ activities are non-public forums, the regulations at issue only must be rationally related to some reasonable government interest. See City’s Memorandum of Law in Support of Its Motion for Partial Summary Judgment, at 21-22. On the other hand, the Plaintiff Telesat argues that a public forum analysis is not appropriate here, but even if it were used, the property at issue should be classified either as a traditional or a limited public forum and thus the regulations must meet more than a rational basis test. See Telesat’s Memorandum in Opposition to the City’s & GWC 104’s Motion for Partial Summary Judgment, at 21. Telesat suggests, however, that a forum classification analysis fails to provide sufficient guidance. While Telesat allows that the First Amendment does not absolutely prohibit regulation of cable television, it asserts that with respect to content-neutral speech, the government may lawfully regulate only where necessary to serve substantial governmental interests and may not regulate more broadly than necessary to serve that interest. See Opposition Memorandum at 26. Though Plaintiff does not cite directly to United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (upholding conviction of demonstrator convicted of burning draft card), the standard of review Plaintiff describes is much like the one articulated by the Supreme Court in O’Brien. Id. at 376-77, 88 S.Ct. at 1679. Indeed, Defendant/Intervenor Comcast explicitly adopts the O’Brien analysis in its Memorandum of Points and Authorities in Support of [Its] Motion for Partial Summary Judgment, at 3-4. At the outset, we observe that under a traditional public forum analysis, the property at issue is not strictly speaking a public forum. The determination of whether the Constitution compels the government to permit access to property is often said to be controlled by the nature of the property itself. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) (First Amendment not violated when access to interschool mail system is granted to one teachers’ union and denied to its rival). If the property is a traditional public forum or limited public forum, governmental regulations which impinge on First Amendment rights must be “necessary to serve a compelling state interest and ... [be] narrowly drawn to achieve that end.” Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981). While we believe the regulations at issue satisfy even a substantial state interest test, the public property in the instant case is a non-public forum. Cable operators do not use the City’s streets or parks or other traditionally public open space to provide cable service. See generally Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Rather, the cable operators use the airspace above and/or the land beneath the public rights-of-way. All the public rights-of-way within the City of Riviera Beach are owned by a governmental body, either the City of Riviera Beach, Palm Beach County, or the State of Florida. Affidavit of L. John Samadi, City Engineer for the City of Riviera Beach, Aug. 2, 1990, at 2. Such aerial and underground government owned rights-of-way have been used traditionally for the provision of public utilities such as telephone service, electric utility service, gas service, water delivery service, and raw sewage disposal. Affidavit of Carl Pilnick, cable television expert for City of Riviera Beach, Feb. 28, 1989, at 16, 20. If the public property is a non-public forum, government regulations which impinge on First Amendment rights are said to meet constitutional standards so long as they are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46, 103 S.Ct. at 955. See also Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788, 808, 105 S.Ct. 3439, 3452, 87 L.Ed.2d 567 (1985) (“[T]he decision to restrict access to nonpublic forum [must be] reasonable; it need not be the most reasonable or the only reasonable limitation.”); International Soc. for Krishna Consciousness, Inc. v. New Jersey Sports and Exposition Auth., 691 F.2d 155, 160 (3d Cir.1982) (“Government restrictions on a nonpublic forum are not evaluated by the [significant government interest] standard. U.S. Postal Service v. Council of Greenburgh Civic Ass’n, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981). Instead, the government may prohibit all forms of communication so long as the ban is reasonable and content-neutral. Id. at 131, n. 7, 101 S.Ct. at 2686 n. 7; Greer v. Spock, 424 U.S. 828, 840, 96 S.Ct. 1211, 1218, 47 L.Ed.2d 505 (1976).”). The character of the aerial and underground rights-of-way used by cable operators clearly suggests that the public property at issue is a non-public forum. It is government-owned property which has neither been traditionally nor specifically open for the exercise of First Amendment rights. See Perry, 460 U.S. at 45, 103 S.Ct. at 954. Indeed, the Supreme Court has rejected a suggestion that utility poles are public fora. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (Los Angeles Municipal Code section which prohibited posting of signs on public property was constitutional, public property at issue was not public forum, problem addressed by ordinance constituted a significant substantive evil within the City’s power to prohibit). Certainly, aerial and underground public property in which such poles are placed would also fit such a categorization. The Court in Vincent observed: Appellees’ reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks ... the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted____ Id. at 814, 104 S.Ct. at 2133. The Third Circuit Court of Appeals stated in International Society for Krishna Consciousness: Not all public places are public forums. The Supreme Court has emphasized repeatedly that a place owned or controlled by the government does not become a public forum simply because members of the public are freely permitted to visit it____ “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” 691 F.2d at 159, citing Adderly v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966). See also United States Postal Service v. Council of Green-burgh Civic Ass’n, 453 U.S. at 129-30, 101 S.Ct. at 2685. In our Order of January 12, 1990, we observed that governmental regulation of cable franchising was lawful and permissible. In Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 2037, 90 L.Ed.2d 480 (1986), the Supreme Court compared the regulation of cable franchising with the fairness doctrine regulations applied to radio broadcasting, which were upheld in Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The Court observed: Respondent’s proposed activities would seem to implicate First Amendment interests as do the activities of wireless broadcasters, which were found to fall within the ambit of the First Amendment in Red Lion Broadcasting Co. v. F. C. C., 395 U.S. at 386 [89 S.Ct. at 1804], even though the free speech aspects of the wireless broadcasters’ claim were found to be outweighed by the Government interests in regulation by reason of the scarcity of available frequencies. Of course, the conclusion that respondent’s factual allegations implicate protected speech does not end the inquiry. “Even protected speech is not equally permissible in all places at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Moreover, where speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests. See, e.g., Members of City Council v. Taxpayers for Vincent, at [104 S.Ct. 2118]; United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Id. 476 U.S. at 494-495, 106 S.Ct. at 2038. In our previous Order, we also stated that regulation of cable television franchises may be justified on both physical scarcity and public disruption grounds. As we noted at that time: The regulation of cable television presents somewhat parallel, although not identical, considerations to those which have been found to justify the regulation of radio broadcasting. We begin by observing that cable television is not encumbered by the scarcity of available frequencies which plays such a vital role in the consideration of radio broadcasting regulation. However, cable television is affected by unique problems involving both physical scarcity and public disruption. Similar to the way in which the finite number of frequencies along the radio spectrum justify certain types of broadcasting regulation, these problem[s] of physical scarcity and public disruption may justify regulation of cable franchising in certain situations. Order of January 12, 1990, at 17. As the Supreme Court concluded in remanding the case to district court in Preferred Communications, 476 U.S. at 495, 106 S.Ct. at 2038: We think that we may know more than we know now about how the constitutional issues should be resolved when we know more about the present uses of the public utility poles and rights-of-way and how respondent proposes to install and maintain facilities on them. It is clear that important aspects of this lawsuit relate to public disruption and physical scarcity issues attendant to the installation and maintenance of this new cable system, rather than to the specific kind of forum space which the cables at issue will occupy. There is no question that the property to be disrupted and about which scarcity questions have been raised is public property, regardless of whether it is a public forum. In the instant action, we now know enough on the full record before us to conclude that the government has articulated an altogether reasonable basis for' regulating cable operators due both to physical scarcity and public disruptions concerns. If measured against this standard, we would have little difficulty finding the Ordinance constitutional. We also conduct our analysis, however, under the more exacting O’Brien umbrella. See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673. In doing so, we follow the standard applied by the Supreme Court and other circuits in several similar cases. We do so also because there is little question that Telesat’s proposed activities implicate First Amendment interests. The O’Brien standard has been employed where content-neutral regulation with incidental impact on speech is applied to govern conduct on public property. See, e.g., Vincent, 466 U.S. at 804, 104 S.Ct. at 2128 (In O’Brien, “the Court set forth the appropriate framework for reviewing a viewpoint-neutral regulation of this kind____”). See also Leathers v. Medlock, — U.S. -, 111 S.Ct. 1438, 1442, 113 L.Ed.2d 494 (1991) (“Cable television provides to its subscribers news, information, and entertainment. It is engaged in ‘speech’ under the First Amendment, and is, in much of its operation, part of the ‘press.’ ”); Chicago Cable Communications v. Chicago Cable Comm’n, 879 F.2d 1540, 1548 (7th Cir.1989) (“As other courts have held, O’Brien is an appropriate standard-bearer for dealing with questions of local regulation of cable television.”); Omega Satellite Products Co. v. Indianapolis, 694 F.2d 119, 128 (7th Cir.1982); Community Communications Co. v. Boulder, 660 F.2d 1370 (10th Cir. 1981) (First Amendment concerns raise substantial interest questions for both plaintiff cable operators and defendant city); Erie Telecommunications v. City of Erie, 659 F.Supp. 580, 599-601 (W.D.Pa. 1987); Carlson v. Village of Union City, Mich., 601 F.Supp. 801, 810 (W.D.Mich. 1985). Accordingly, we also analyze the regulations under the O’Brien rubric, as to four factors: (1) are the regulations within the constitutional power of the Government; (2) do they further an important or substantial government interest; (3) is the government interest unrelated to freedom of expression; and (4) is any incidental restriction on such expression no greater than essential. When measured against the O’Brien standard, we conclude that the regulations enacted by the City are constitutional. IV. Substantial Government Interest Factors The City’s regulations were not enacted with the “suppression of speech [a]s a predominant purpose.” Pacific West Cable Co. v. Sacramento, 672 F.Supp. 1322, 1331 (E.D.Cal.1987), citing City of Renton v. Playtime Theatres, 475 U.S. 41, 45-49, 106 S.Ct. 925, 927-30, 89 L.Ed.2d 29 (1986). The City’s cable ordinance does not require any applicant to disclose its intended speech. Rather, the City requires only that in using its rights-of-way, regardless of the intended speech, Telesat do so in a non-discriminatory manner. We find that each of the sections of the Ordinance falls within the constitutional power of government to regulate and is intended to serve a substantial government interest. Moreover, the regulations are not directed toward controlling the speech of any cable operator. Indeed, the Congress recognized such legitimate government interests in enacting the Cable Act, stating that a “significant purpose of [the Cable Act] is to address the problems which have arisen in the franchise process, and to provide and delineate within Federal legislation the authority of Federal, state and local governments to regulate cable systems.” H.R.Rep. No. 934, 98th Cong.2d Sess. 22, reprinted in U.S.Code Cong. & Admin.News 1984, 4655, 4659. In our January 12,1990 Order, this Court recognized two broad reasons justifying regulation of cable television: physical scarcity and public disruption. Each of the regulations which Telesat has challenged is designed specifically to address problems identified by Congress in the Cable Act, cable law requirements of the Florida legislature, particularly Section 166.046 of the Florida Statutes (1987), and regulations of Palm Beach County. See Affidavit of Carl Pilnick, President of Telecommunications Management Corp., an independent cable television and telecommunications consultant, and expert witness for City of Riviera Beach, filed February 28, 1989, at 10. A. Physical scarcity In National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), Justice Frankfurter, writing for the Court, observed that because radio facilities were “limited and therefore precious, they cannot be left to wasteful use without detriment to the public interest.” Id. at 217, 63 S.Ct. at 1010. The Court noted that “[u]nlike other forms of expression, radio inherently is not available to all ... that is why, unlike other modes of expression, it is subject to governmental regulation.” Id. at 226-227, 63 S.Ct. at 1014. The regulation of cable television bears similarity to that of radio in a number of ways. Such similarity is reflected in concern about physical scarcity — both specific to the locale at issue and as a broader national policy issue. Indeed, the history of regulation of broadcast and cable television indicates that scarcity need not be found in each geographical area in which a potential speaker wishes to speak in order to justify some regulatory scheme. See generally Red Lion Broadcasting v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; Pacific West Cable Co. v. Sacramento, 798 F.2d 353 (9th Cir.1986); Omega Satellite Products v. Indianapolis, 694 F.2d 119; Community Communications v. Boulder, 660 F.2d 1370. However, in the instant case there is substantial evidence in the record to demonstrate that there is real potential for physical scarcity in the public rights-of-way. Divander Kant, the City’s Director of Community Development and Environmental Control, has testified that the underground easements on Singer Island are crowded. D. Kant Deposition, filed Feb. 28, 1989, at 81 (“there’s so much in that right of way underground”). There are currently nine cable operators franchised to provide service in Palm Beach County; each is a potential applicant to the City. Affidavit of Dennis Widlansky, Director of Finance and Interim City Manager, City of Riviera Beach, filed March 19, 1990, at 3. At least six more operators are potential cable service providers to the City. Id. Physical scarcity problems exist in relation to the City’s rights-of-way. By requiring cable operators to estimate the impact of the additional operator on existing users of the rights-of-way, the City can then determine whether telephone poles need to be extended, replaced, and re-guyed. For example, a ten-foot horizontal clearance is required between pipes carrying fresh water and sewage; an eighteen inch clearance is required for vertical clearance. Affidavit of L. John Samadi, City Engineer for City of Riviera Beach, filed Mar. 20, 1990, at 4. Most states also require that coaxial cable for television service be at “least 3.5 to 4 feet below the grounded or neutral wire on the high-voltage electrical power cables, and at least one foot above any telephone wires.” Affidavit of Pilnick, Feb. 28, 1989, at 33. The problem of physical scarcity cannot be solved simply by requiring additional rights-of-way; this may be prohibitively expensive and not easily accomplished. Affidavit of Pilnick, Feb. 28, 1989, at 37. It is not an option in Riviera Beach because the City does not have the financial resources to acquire additional rights-of-way. Widlansky Affidavit at 2, 3. On the face of this record of physical scarcity, Telesat supplies affidavits to support its argument that in fact the City’s easements and rights-of-way have substantial unused capacities for expansion for various users. Telesat disputes the City’s claim that underground easements on Singer Island are already crowded. See Telesat’s Statement Controverting Facts, at 5-6. Telesat’s argument, we think, misses the mark. Even if the public rights-of-way have some unused capacity — and the Defendant City has offered much evidence indicating that physical scarcity is in fact a matter of real concern — the City plainly has an interest in regulating a resource that has important limits to its capacity. Moreover, regardless of the precise amount of space available for cable television lines on Singer Island, the City has considerable scarcity concerns throughout the municipality’s boundaries to consider. We reiterate that the history of broadcast and cable television regulation demonstrates the danger of suggesting that there must be a precisely quantifiable scarcity in each geographical area in which a potential speaker wishes to speak in order to justify regulation. We reject as well several of Telesat’s contentions regarding facts in dispute on the scarcity issue. For example, Telesat challenges the validity of the opinions rendered by Carl Pilnick, primarily by claiming that his affidavits are based on “some unspecified hypothetical city or cites.” Telesat’s Response at 4. First, experts may testify as to general practices and conditions based on their expertise. Fed.Rule Evid. 703. Moreover, Mr. Pilnick stated in his affidavit that his opinions are based on specific facts given to him by the City’s engineering department. See Affidavit of Pilnick, May 16, 1990, at para. 14. We too have seen referenced facts supplied by Mr. Samadi of the City’s engineering department. In our view, it is reasonable for a municipality or governmental body to require, as the Defendant City has done here, the applicant to assess the space in rights-of-way in order to preserve its scarce rights-of-way for the greatest good. Such requirements are supported by important and substantial interests of the municipality. B. Public disruption Construction and operation of a cable television system is not passive; it can be an intrusive force on a franchising authority’s rights-of-way. As the Tenth Circuit described its impact: a cable operator must lay the means of his medium underground or string it across poles in order to deliver his message. Obviously, this manner of using the public domain entails significant disruption, especially to streets, alleys, and other public ways. Some form of permission from the government must, by necessity, precede such disruptive use of the public domain. We do not see how it could be otherwise. A city needs control over the number of times its citizens must bear the inconvenience of having its streets dug up and the best times for it to occur. Thus, government and cable operators are tied in a way that government and newspapers are not. Community Communications v. Boulder, 660 F.2d at 1377-78. See also Group W. Cable, Inc. v. Santa Cruz, 669 F.Supp. 954, 971 (N.D.Cal.1987) (With respect to the city’s request for financial information on operator, the district court found the city had “a substantial governmental interest in minimizing the physical disruption that could occur if a cable operator lacks the financial resources to install and maintain a cable system safely and expeditiously.”). This interest, we think, is manifestly substantial. Telesat argues, however, that its construction in fact causes minimal disruption in the City. Even minimal disruption, however, would provide sufficient basis for the municipality to regulate, given the substantial and important government concerns raised by any public disruption. But to examine only current construction to ascertain the precise extent of public disruption would be to take too narrow a view of the issue in the case. The constitutionality of the City’s regulations is not grounded solely on whether Telesat’s construction has been disruptive, but rather on whether construction of a cable television system in the City’s rights-of-way in general can reasonably tend to disrupt. Again, the record adequately demonstrates the potential for disruption each time a cable operator would seek to wire the City. See Affidavit of Pilnick, February 28, 1989, at 36 (“cable equipment usually represents a permanent and substantial intrusion on or in the rights-of-way”); id. at 12 (“A lack of sufficient funds may delay or stop the system construction, resulting in a variety of inoperable equipment in the public rights-of-way and a lack of service to expectant residents.”); Affidavit of Pilnick, March 19, 1990, at 7 (“All of these [aspects of cable television installation] intrude upon the public rights-of-way, to a greater and lesser extent. The pedestals, in particular, are a major source of subscriber unhappiness in many newly developed communities, where restrictive covenants against rooftop antennas are not uncommon, and cable service becomes a virtual necessity.”); Affidavit of Pilnick, May 21, 1990, at 14 (“The relatively few municipalities in the United States that have franchised, in recent years, two or three cable television operators, have been forced to deal with these right-of-way access problems ... which involve rights-of-way capacity and disruption____”); Deposition of Divander Kant; Affidavit of L. John Samadi at 4. The City may also rely upon experiences in other jurisdictions in adopting legislation on similar subjects. International Eateries of America, Inc. v. Broward County, 726 F.Supp. 1568 (S.D.Fla.1989); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). And the City may consider factors not specifically included in the Ordinance’s delineated criteria, including aesthetics, day-to-day side effects of construction including trenching and lawn and garden restoration, homes left with multiple aerial drops, multiple pedestals, and anchors and guy-wires in yards, as well as potential customer confusion from multiple operators. Cf. Plain Dealer Pub. Co. v. Lakewood, 794 F.2d 1139 (6th Cir.1986). Again, we believe that the City has articulated important public interests stemming from concern about potential public disruption caused by cable operators’ activities. Public disruption, like physical scarcity, are substantial government interests which the Ordinance is designed to address. These interests support a regulatory framework. And this Ordinance does so in a manner which is constitutionally permissible. V. The Specific Requirements of the Regulations A. Universal Service Requirement The most hotly litigated aspect of the regulatory scheme codified by the Defendant City is the specific requirement that a cable operator provide universal service throughout the municipality’s boundaries as a condition for being franchised. The City considers the universal non-discriminatory service requirement to be one of the most important aspects of the Ordinance. Basically, it requires that the grantee serve the entire territorial limits of the City and specifically mandates that [ajccess to cable service shall not be denied by any grantee to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. Ordinance, Section 11.55(a)(4). The City observes that Congress included such universal service language in the Cable Act, precisely because it wanted to eliminate cable operators’ refusal to provide cable service because of the income status of recipients in certain areas. See H.Rep. No. 934, 98th Cong.2d Sess. 59, reprinted in U.S.Code Cong. & Admin.News 1984 at 4696. The City sought to apply this reasoning to the geographic and income demographics in Riviera Beach and suggests that the need for universal service is substantial. Specifically, the Defendant has argued that the universal service requirement promotes competition, tends to prevent or limit discrimination based on wealth or race, and provides the widest access for those who are willing and able to purchase the cable service. On the other hand, Telesat counters that the City’s argument on universal service was rejected by the District of Columbia Court of Appeals in American Civil Liberties Union v. FCC, 823 F.2d 1554, 1580 (D.C.Cir.1987), cert. denied sub nom. Connecticut v. FCC, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). Telesat further argues that this requirement compels it to speak when it may choose to remain silent, in violation of the speech and press guarantees embodied in the First Amendment. To begin with, what the District of Columbia Circuit said was that the Cable Act did not mandate universal service. There is no indication that universal service is precluded by FCC regulations. While the Court of Appeals observed that the FCC initially interpreted the Act to mean that franchising authorities were required to wire all areas, it held that such requirements were not absolute, citing to a subsequent FCC order which provided: the intent of [section 621(a)(3)] was to prevent the exclusion of cable service based on income and that this section does not mandate that the franchising authority require the complete wiring of the franchise area in those circumstances where such an exclusion is not based on the income status of the residents of the unwired area. 823 F.2d at 1579-80, citing Notice of Proposed Rulemaking, 49 Fed.Reg. at 48,769 and Report and Order, 50 Fed.Reg. at 18,647. The Court of Appeals noted that it read the House Report language to mean “ ‘wiring of all areas of the franchise’ to prevent redlining.” ACLU, 823 F.2d at 1580 (emphasis in original). This language does not suggest that a city is precluded from requiring universal service, particularly in circumstances which indicate exclusion of cable service based on income. The first interest posited by the Defendant City in support of the universal service requirement is that it is said to promote competition. Thomas Hazlett, Telesat’s expert witness, has testified in some detail about the benefits said to flow to city residents of competition among cable operators. For example, Dr. Hazlett stated, “Competition in cable can be expected to benefit consumers even where no actual overbuild materializes.” Telesat’s June 1, 1989 Responses to the City’s Second Set of Interrogatories, at 13. Dr. Hazlett also stated: Should Telesat, as a result of a typical business investment decision, decide to partially or fully overbuild the existing operator in additional portions of Riviera Beach, consumers can only be benefitted from the rivalry, as competition tends to lower prices and improve services offered, and — in any event — promotes consumer choice. Deposition of Dr. Hazlett, filed May 21, 1990, at 66. In other writings, Dr. Hazlett specifically introduced discussion of low-income families as cable consumers. He wrote that “ ‘low-income families spen[d] more dollars on basic cable than d[o] middle-income families,’ and ... that ‘low income [urban] families may find that basic cable provides an inexpensive substitute for the other kinds of entertainment that the city offers.’ ” T. Hazlett, Private Monopoly and the Public Interest: An Economic Analysis of the Cable Television Franchise, 134 U.Pa.L.Rev. 1335, 1382 (1986) (citation omitted). The City’s universal non-discriminatory service requirement is said to ensure that all citizens of the City are the benefactors of competition and have access to the benefits of the diversity of communications offered by multiple cable operators, and that such service is available throughout the boundaries of the City. Deposition of William E. Wilkins, employed by the City of Riviera Beach from 1974 to 1987 in various positions, including City Manager, filed Feb. 28, 1989, at 90-91. The City argues that it ought to be permitted to use public property in a manner reasonably designed to promote these interests. In addition, Section 166.046(2) of the Florida Statutes gives the City authority to franchise cable television systems and requires it to consider a number of enumerated criteria during the franchising process, including “societal interests as are generally considered in cable television franchising [and] ... other additional matters, both procedural and substantive, as the municipality or county may, in its sole discretion, determine to be relevant.” See Fla.Stat.Ann. § 166.-046(2)(g), (h). In the second place, the City has offered evidence to support the claim that income- and race-based discrimination concerns are reasonable ones in Riviera Beach. The Cable Act explicitly states that “access to cable service is not [to be] denied to any group of potential residential cable subscribers because of income ...” 47 U.S.C. § 541(a)(3). The House Report language which accompanied the legislation specifically identified in this context the practice of denying service to lower income areas, or “redlining.” And the Supreme Court has recognized unequivocally that government has a compelling interest in eradicating discrimination against its citizens. See, e.g., Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). Singer Island, the sole area which Telesat serves, is a middle to high income, predominately white area of the City. The majority of these residents live in condominiums. Deposition of Wilkins at 135. The City has about 35,000 residents: sixty percent are black, forty percent are white. The City is 97 percent white in the area east of U.S. 1, which includes Singer Island. Deposition of Wilkins at 91-92. The area west of Old Dixie is 95 percent black. The area between U.S. 1 and Old Dixie is 70 percent black. Id. at 92. On Singer Island, the mean income by workers is $59,-157 per annum; the city-wide average is $26,468 per annum. Affidavit of Karen J. Golanka, City Planner for City of Riviera Beach, filed Mar. 19, 1990, at 2, citing to the 1980 United States Census. There are, in short, divergences in income patterns between Singer Island and the rest of the City. Moreover, cable operators tend to bring cable service to low income areas at a much slower rate than to other areas. Affidavit of Pilnick, February 28, 1989, at 17. While these tendencies may represent logical business decisions, they result in some portions of a municipality having cable service. This usually results in a considerable level of chronic complaints, directed at the municipality as well as the cable operator. Residents who do not have the cable service are aware that____[t]he municipality has granted a franchise for cable service, and therefore presumably has some responsibility to assure that some residents are not discriminated against in favor of others. Id. at 17-18. The City asserts that absent a universal service requirement, some Riviera Beach residents may face a reduction in the quality of the cable television service they receive or possibly lose the service completely. Affidavit of Pilnick, March 19, 1990, at 4. This might occur, they suggest, because (1) a new operator, not required to serve the entire community, will not go into certain poorer areas which will then be denied the benefits of cable competition or (2) the operator currently serving those less profitable areas will concentrate its improvement of services and any additional investment in those areas which are more profitable and more affluent. Id. at 4. At all events, the City has posited that the Ordinance may reasonably tend to promote competition throughout its boundaries. The City has further suggested that it may rely on congressional findings concerning the potential economic and social implications of permitting cable operators to “red-line” a community. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986). The constitutionality of universal service has been raised in only a handful of cases and the case authority is split. Most recently, the district court in Preferred Communications held such universal service requirements to be constitutional. See Preferred Communications v. City of Los Angeles, No. CV 83-5846-CBM, Memorandum Order, slip op., at 2 (C.D.Cal. March 26, 1991). When another district court found the universal service requirement unconstitutional, notably it did so by analogizing cable television to newspapers, an analytic route which we have not taken. See Century Federal, Inc. v. Palo Alto, 710 F.Supp. 1552 (N.D.Cal.1987). In contrast, in our Order of January 12, 1990 in the instant case, we stated: It is also true that newspapers present few if any of the problems of physical scarcity or public disruption which may be found in the cable television medium. Indeed, several courts have posited a greater justification for regulation of cable television suggesting real distinctions between the widely available newspapers medium and the more limited medium of cable television. Id. at 20. While Telesat has vigorously argued that for purposes of this case cable operators should be treated exactly as newspapers, we are not convinced as to this basic point. In tracing the differences in regulating the different mediums, most courts refer to the substantial interest of government in controlling the timing and extent of any disruption of its streets and rights-of-way. In the instant case, we have already noted that the construction and maintenance of a cable system in a community burdens the public streets and rights-of-way in significant ways, and markedly different from the print media. Such issues have been addressed extensively elsewhere. The Tenth Circuit Court of Appeals, for example, distinguished precisely and in some detail between cable television and print media. In Community Communications v. Boulder, 660 F.2d 1370 (10th Cir.1981), the Court of Appeals stated: The attributes of cable broadcasting technology indicate that nearly absolute strictures against direct governmental regulation of newspapers’ dissemination of information cannot be applied in wholesale fashion to cable operators. To disseminate information, a newspaper need not use public property in the same way that a cable operator does. A newspaper may reach its audience simply through the public streets or mails, with no more disruption to the public domain than would be caused by the typical pedestrian, motorist, or user of the mails. But a cable operator must lay the means of his medium underground or string it along poles in order to deliver his message. Obviously, this manner of using the public domain entails significant disruption, especially to streets, alleys, and other public ways. Some form of permission from the government must, by necessity, precede such disruptive use of the public domain____ Thus, government and cable operators are tied in a way that government and newspapers are not. Id. at 1377-1378. A district court in Rhode Island also contrasted the varying regulation of broadcast television, newspapers, and cable television. That court concluded: Newspapers and cable television cannot be equated. More to the point, the two media are constitutionally distinguishable. Although a cable operator’s selection of its programming is similar to the editorial function of a newspaper publisher or a television broadcaster, this similarity does not mean that each medium is entitled to the same measure of First Amendment protection. “Each method of communicating ideas is a ‘law unto itself’ and that law must reflect the ‘differing natures, values, abuses and dangers of each method.’ ” Citing Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513 (1949))____ [Cable television] and newspapers first differ in that only the latter have h