The U.S. Dept. of Justice and the FCC this week filed a joint legal brief asking an appellate court to overturn a judge’s ruling allowing telephone company giant Bell Atlantic to provide cable TV service in its local region.

The brief was submitted to the U.S. 4th Circuit Court of Appeals in Richmond, Va., which is expected to hear oral arguments on the telco-into-cable case in early 1994.

At issue is an August decision from U.S. District Judge T.S. Ellis, which struck down a 1984 congressional law barring telco delivery of video programming. Ellis wrote that the congressional ban violated the First Amendment free speech rights of the telcos.

In the government brief, lawyers for the Justice Dept. and the FCC claimed Judge Ellis overstepped his bounds by declaring the law unconstitutional.

“The statute at issue here serves a substantial government interest in preventing the telephone companies from misusing their monopoly power,” the brief states.

“Allowing telephone companies to transport their own video programming could give them an incentive to structure carriage on terms more favorable for their own programming and, over time, engage in the conventional, discriminatory tactics that would discourage access by their competitors. The district court misunderstood this fundamental feature (in its decision).”

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