Despite these fundamental differences between cable television and newspapers (CATV's use of the public right-of-way and its ease of monopolization), on the basis of the Supreme Court's
Tornillo decision both the D.C. Circuit in
Home Box Office and the Eighth Circuit in
Midwest Video II, as explained above, rejected “scarcity which is the result solely of economic conditions” as a rationale for content regulation of CATV systems. However, the Tenth Circuit's more recent opinion in
Community Communications, supra, reflects an unwillingness to incorporate
Tornillo wholesale into the cable television context. As that opinion stated, the “cable broadcasting medium presents very different circumstances” from those before the Supreme Court in
Tornillo. Community Communications, 660 F.2d at 1379. In
Community Communications the appellant City of Boulder had argued that because a cable operator has a natural monopoly for his franchise area, “the cable broadcasting medium [is] ‘scarce’ in much the same way that the finiteness of the electromagnetic spectrum makes wireless broadcasting a medium of essentially limited access.”
Id. at 1378. Although not explicitly adopting the City's reasoning, the court did agree that “natural monopoly
is a constitutionally permissible justification for some degree of regulation of cable operators,” although the court warned that this conclusion did “not mean that the full panoply of principles governing the regulation of wireless broadcasters necessarily applies to cable operators.”
Id. at 1379 (emphasis added).