Independent Exhibitors Film Bulletin (1963)

V, tewpotnts R 23. 1963 m VOLUME 31. NO. 2S DECEMBER 23, 1963 Why the Pay-TV Maneuver Will Fail The promoters of pay television in California, it seems, had hoped to slip in through the back door. They have no taste for testing the issue of free vs. pay TV at the ballot box. This is the conclusion one must draw from the legal stratagem pulled off last week by Subscription Television, Inc., whose big west coast feevee promotion is threatened by the threat of a referendum at the state elections next November. Having won rather rapid, hushhush passage of a law by the California Legislature last summer to permit the licensing of pay TV, and having floated a stock issue that gives it some $28 million to work with, Subscription Television faced but one major obstacle — the possibility that the free people of the sovereign state of California might have the opportunity to override the quickie law by a referendum vote. Their grandiose scheme menaced by the Crusade for Free TV, the brains behind Subscription Television, Inc. filed a monstrous $117 million antitrust suit against the various theatere interests sponsoring the referendum move. Subscription Television's anguished cry is that the theatremen are not playing fair in bringing the public — which will have to pay — into the matter. The intent is obvious: to frighten off the theatremen — who only stand to lose their business if they don't defend themselves. This spurious legal maneuver will fail. A decision of the United States Supreme Court dooms it to failure. Eastern Railroad Presidents Conference et al. v. Noerr Motor Freight, Inc., et al., (decided Feb. 20, 1961) was a case in which a group of trucking companies and their trade association sued a group of railroads, a railroad association and a public relations firm, under the antitrust laws, charging that the railroads had engaged the public relations firm to conduct a publicity campaign against the truckers designed to foster the adoption and retention of laws, and destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers. The ultimate Supreme Court decision, reversing a lower court opinion, upheld the rights of the railroads in terms that are clearly applicable to the position of the exhibitor organization involved in the struggle with Subscription Television, Inc. Following are pertinent excerpts from that decision: "The right of petition is one of the freedoms protected by the Bill of Rights." * * * "No violation of the (Sherman) Act can be predicated upon mere attempts to influence the passage or enforcement of laws." * * * "The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors. ***Indeed, it is quite probably people BULLETIN Film BULLETIN: Motion Picture Trade Paper published every other Monday by Wax Publications, Inc. Mo Wax, Editor and Publisher. PUBLICATION-EDITORIAL OFFICES: 1239 Vine Street, Philadelphia 7, Pa., LOcust 8-0950, 0951. Philip R. Ward, Associate Editor; Leonard Coulter, New York Associate Editor; Helen Perrone, Publication Manager; Norman Kllnger, Business Manager; Robert Heath, Circulation Manager. BUSINESS OFFICE 550 Fifth Avenue, New York, 36, N. Y., Circle 5-0124; John Ano, N. Y. Editorial Representative. Subscription Rates: ONE YEAR, $3.00 in the U. S.: $5.00 $4.00; Europe, $5.00. TWO YEARS. $5.00 in the U. S.; Canada, Europe, $9.00 with just such a hope of personal advantage who provide much of the information upon which governments must act. A construction of the Sherman Act that would disqualify people from taking a public position on mtters in which they are financially interested would thus deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them. We reject such a construction of the Act and hold that, at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected h>v any anticompetitive purposes it may have had." "It is inevitable, whenever an attempt is made to influesce legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injur)'. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns. We have already discussed the reasons which have led us to the conclusion that this has not been done by anything in the Sherman Act." "In rejecting each of the grounds relied upon by the courts below to justify application of the Sherman to the campaign of the railroads, we have rejected the very grounds upon which those courts relied to distinguish the campaign conducted h\ the truckers. In doing so, we have restored what appears to be the true nature of the case — a 'no-holds-barred fight' between (Continued on Pat>c 12) Film BULLETIN December 23, 1963 Page 5