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48 F3d 1106 Pacific Telesis Group v. United States

48 F.3d 1106

1995-1 Trade Cases P 71,054

PACIFIC TELESIS GROUP; Pacific Bell; Nevada Bell,
Plaintiffs-Appellants,
v.
UNITED STATES of America, et al.; Federal Communications
Commission; Janet Reno, Attorney General,
Defendants-Appellees,
and
California Cable Television Association, Intervenor-Appellee.

No. 94-16064.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 15, 1994.
Decided Dec. 30, 1994.

Michael K. Kellogg, Kellogg, Huber, Hansen & Todd, Washington, DC, for plaintiffs-appellants.

Douglas Letter, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Bruce D. Sokler, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Washington, DC, for intervenor-appellee.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding.

Before: ALARCON and HALL, Circuit Judges, and KING,* District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

1

This case involves a First Amendment challenge to 47 U.S.C. Sec. 533(b), the telephone company--cable television cross-ownership prohibition. The district court stayed the proceedings pending resolution by this court of GTE California, Inc. v. Federal Communications Commission, 39 F.3d 940 (9th Cir.1994). After the stay was entered, the plaintiffs moved in the district court for a preliminary injunction against enforcement of Sec. 533(b) pending resolution of this case. The district court summarily denied the application for a preliminary injunction, and this interlocutory appeal followed.

2

US West, Inc. v. United States, 48 F.3d 1092 (9th Cir.1994), raised the same First Amendment issue as the present case, and we consolidated the two cases for purposes of oral argument. In a separate published opinion in US West, filed along with this disposition, we hold that Sec. 533(b) violates the First Amendment.

3

The district court's order denying preliminary injunctive relief is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion and with the opinion in US West.

*

The Honorable Samuel P. King, Senior District Judge for the District of Hawaii, sitting by designation