source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    COLUMBIA BROADCASTING SYSTEM, INC., et al., PlaintiffsAppellants, v. TELEPROMPTER CORPORATION and Conley Electronics Corporation, Defendants-Appellees.
    No. 353, Docket 72-1800.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 11, 1973.
    Decided March 8, 1973.

      Asa D. Sokolow and Seymour Graubard, New York City (Rosenman, Colin, Kaye, Petschek, Freund & Emil, New York City, for appellant Columbia Broadcasting System, Inc.; Marshall, Bratter, Greene, Allison & Tucker, New York City, for appellant Calvada Productions; Alexander & Green, New York City, for appellant Jack Chertok Television, Inc.; Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City, for appellant Dena Pictures, Incorporated, on the brief), for appellants.
    Robert C. Barnard, Washington, D. C., and Julius Levy, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, R. Michael Duncan, Washington, D. C., of counsel, and Katz, Rosensweig & Sindle, David Z. Rosensweig, New York City, of counsel, on the brief), for appellees.
    Paul, Weiss, Rifkind, Wharton & Garrison, Herman, Finkelstein, Simon H. Rifkind, Jay H. Topkis and Paul L. Laskin, New York City, on the brief, amicus curiae for American Society of Composers, .Authors and Publishers.
    Stuart F. Feldstein, Charles S. Walsh and Stephen A. Gold, Washington, D. C., on the brief, amicus curiae for National Cable Television Association, Inc.
    Phillips, Nizer, Benjamin, Krim & Ballon, Louis Nizer, Gerald Meyer and Gerald F. Phillips, New York City, of counsel, on the brief, amicus curiae for Motion Picture Association of America, and others.
    Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.
   LUMBARD, Circuit Judge:

Plaintiffs-appellants, Columbia Broadcasting System, Inc. (CBS), Calvada Productions, Jack Chertok Television, Inc., and Dena Pictures, Incorporated appeal from a final judgment entered after trial in the Southern District. Appellants commenced this copyright infringement action against defendantsappellees, Teleprompter Corporation (Teleprompter) and its subsidiary Conley Electronics Corporation, who own and operate numerous Community Antenna Television (CATV) systems throughout the country. Appellants are creators and producers of television programs that were protected by statutory copyrights and that were licensed to television stations affiliated with the CBS Television Network, a division of CBS, and to several independent television stations. The complaint alleged that the Teleprompter cable systems intercepted the signals of television stations broadcasting appellants’ copyrighted works and then channeled these programs to their paying subscribers without authorization or license, thereby infringing appellants’ copyrights. After trial, the district court, holding that the reception of telecasts of appellants’ copyrighted programs by Teleprompter’s CATV systems and the distribution of these programs to CATV subscribers did not infringe appellants’ copyrights, entered judgment dismissing the complaint. From that judgment, appellants have taken this appeal.

The pertinent facts were the subject of two lengthy stipulations and are basically undisputed. The legal issue concerns the proper interpretation to be given to § 1(c) and (d) of the Copyright Act of 1909, 17 U.S.C. § 1(c) and (d). This provision gives the copyright holder the exclusive right, inter alia, to perforin the copyrighted work. The issue here, therefore, is whether Teleprompter’s CATV systems “performed” the copyrighted works within the meaning of this provision. In resolving this question, we are not writing on a clean slate, for the Supreme Court, on somewhat different facts, considered the meaning of “perform” in this provision in Fortnightly Corp. v. United Artists, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). Relying on Fortnightly, the district court held that the CATV systems here did not “perform” the copyrighted works.

The allegations of infringement were limited to an illustrative group of copyrighted programs. Similarly, the complaints charged five specific and illustrative CATV systems with having infringed appellants’ copyrights, although presumably other CATV systems owned by Teleprompter conducted similar activities. As a result, the copyright claims at issue involve, and are limited to, the operations of Teleprompter’s CATV systems in five cities at stated periods: Elmira, New York in November 1964; Farmington, New Mexico in November 1964, June 1969, and March 1971; Rawlins, Wyoming in June 1969; Great Falls, Montana in June 1969; and New York City in June 1969 and March 1971. A knowledge of the operations of each of these systems is essential to an understanding of our resolution of the issues.

Elmira: In November 1964, the date of the only infringement alleged with regard to the Elmira CATV system, the system had the capacity to carry twelve television channels. It received and provided its viewers with the programs of ten television broadcast stations located in Elmira and in communities varying from 46 to 173 miles away. Broadcasts from CBS affiliates, as well as from some stations with other network affiliations, in Buffalo (119 miles), Scranton (76 miles), Syracuse (64 miles), and Binghamton (46 miles) were received off-the-air at the system’s antenna site on a hill adjacent to Elmira and were made available to the system’s subscribers. Because of distance and topographical conditions, satisfactory reception of the stations in Buffalo and Scranton is not available by means of rooftop antennas in most locations in and around Elmira. Satisfactory reception of the Syracuse stations is available only in some locations in the northern portion of Elmira. One of the Binghamton stations can be satisfactorily received from rooftop antennas, but the other station cannot. In addition, the Elmira system had two channels that were provided by means of microwave links. One of these was licensed to the school system, which originated educational programming that was transmitted by microwave from the schools to the CATV system for distribution. The second microwave link served to connect the system with an antenna nearer New York City, where a New York independent station was received off-the-air. None of the copyrighted programs was broadcast by this independent station.

Farmington: On two of the dates of alleged infringement, November 1964 and June 1969, Teleprompter operated a five-channel system in Farmington. The system received and distributed to its subscribers the signals of four broadcast stations, all of which were received off-the-air on antennas located on a mesa thirty miles from Farmington. Originally, all the stations were from Albuquerque, New Mexico (144 miles from Farmington); later, a station from Durango, Colorado (43 miles) was added during periods when one of the Albuquerque stations was not broadcasting. Because of distance and mountainous terrain, reception of the Albuquerque stations directly off-the-air by means of rooftop antennas was not feasible. However, the Albuquerque stations, including a CBS affiliate that broadcast several of the copyrighted programs, were received in Farmington on rooftop antennas because they were rebroadcast by “translators” under a license issued by the Federal Communications Commission and pursuant to authorization given by CBS and the station. The mountainous terrain also made it impossible to receive by means of rooftop antennas the Durango station, which is also a CBS affiliate. This Durango station, however, entered into a letter agreement with the Farmington CATV system in which it authorized the latter to distribute the station’s programming to its subscribers.

By March 1971, the third date of alleged infringement, the system had been rebuilt with twelve-channel equipment. At this time, it received and distributed the broadcasts of nine stations: four from Albuquerque, one from Durango, and four independent stations from Los Angeles (600 miles from Farmington). Obviously, the Los Angeles stations were not receivable from rooftop antennas in Farmington. These stations were received on an antenna located approximately fifty miles from Los Angeles and linked with the Farmington system by a microwave system, 1300 miles in length.

On the one additional channel available to the system in 1964 and 1969, it originated some limited programming, which consisted of general interest programs such as local news, sports, and movies, an automated time and weather scan, and occasionally some educational programs. When the channel capacity had increased in 1971, the automatic time and weather scan was originated on a non-broadcast channel on a full-time basis. On a second non-broadcast channel, educational programming was offered. And on the third available channel, the CATV system originated twenty hours per week of general interest programs.

Rawlins: At the time of the alleged infringement, in June 1969, the Rawlins CATV system had a twelve-channel capacity. The system received and made available to its subscribers programming from six broadcast stations, five from Denver, Colorado (184 miles from Rawlins), on which the copyrighted programming was carried, and one from Casper, Wyoming (87 miles from Rawlins). The system received the Denver stations, which could not be received in Rawlins from rooftop antennas, off-the-air on antennas located ninety miles from Denver, and transmitted them by microwave link to Rawlins. The Casper station was received off-the-air on an antenna located at the edge of town. Because of mountainous terrain, reception of the Casper station directly off-the-air by rooftop antennas was not generally possible; however, the Rawlins audience did receive its broadcasts as a result of rebroadcasts by a translator. At the time of the alleged infringement, the only program origination on non-broadcast channels that the CATV system produced was an automated time and weather scan.

Great Falls: The Great Falls CATV system was a twelve-channel system at the time appellants allege it to have infringed their copyrights. It received and distributed to its subscribers programming of nine broadcast stations. Three of the stations (including the one that broadcast the program whose copyright is alleged to have been infringed) were in Spokane, Washington (286 miles from Great Falls), one was in Lethbridge, Canada (163 miles away), two were- in Salt Lake City (466 miles away), and one was in Helena (71 miles away). The system received the signal of each of these stations off-the-air by means of antennas located at varying distances from the originating stations (17 to 95 miles) and transmitted it by microwave to a point in Great Falls, from which it was distributed by cable to the system’s subscribers. Because of distance, mountainous terrain, and the limitations of the individual stations, the Great Falls audience could receive none of these broadcast stations by means of rooftop antennas. In addition, the system received the signals of two Great Falls stations off-the-air by means of antennas located in the community, and distributed these signals to its subscribers. On a non-broadcast channel, the system offered an automated time and weather scan. On another non-broadcast channel, the system originated ten hours per week of movies and local interest programs.

New York: At the time of the first alleged infringement, in June 1969, Teleprompter’s New York CATV system had a twelve-channel capacity. By March 1971, the time of the second alleged infringement, its capacity had increased to thirteen channels. Under the terms of the system’s franchise, it must receive and distribute all eleven New York City stations and is barred from importing any stations from outside New York City. From time to time, microwave has been used to connect the system’s main antenna with two subsidiary antennas. The signals of the New York stations were received off-the-air by these antennas and distributed by cable to the subscribers. The New York system, on its non-broadcast channels, offered several forms of automated originations, in addition to originating from forty to seventy hours of local and general interest programming per week. In connection with one of the latter types of originations, a sports event, the Teleprompter system sold some commercial time and interconnected with other CATV systems in the New York area.

I. Fortnightly Corp. v. United Artists, Inc.

The starting point in our analysis of appellants’ copyright-infringement claims must, of course, be the Supreme Court’s decision in Fortnightly Corp. v. United Artists Television, Inc., supra. In deciding whether the Fortnightly CATV system “performed,” within the meaning of the Copyright Act, the programming that it provided to subscribers, the Court applied a functional test and held that the CATV system there involved was functionally related more to the television viewer, who does not “perform,” than to the television broadcaster, who does “perform.” In this regard, Mr. Justice Stewart, speaking for the Court, said:

The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. .
When CATV is considered in this framework, we conclude that it falls on the viewer’s side of the line. Essentially, a CATV system no more than enhances the viewer’s capacity to receive the broadcaster’s signals; it provides a well-located antenna with an efficient connection to the viewer’s television set. (Emphasis added.) 392 U.S. 390, pp. 398-399, 88 S.Ct. 2084, pp. 2088-2089.

The teaching of Fortnightly is that a CATV reception service that receives broadcast signals off-the-air from an antenna or other receiving equipment erected within or adjacent to the community it serves, and distributes the programming received to subscribers, does not “perform” the programs and, thus, is not subject to copyright liability, even though the subscribers could not otherwise receive the programs without the aid of CATV. Appellants correctly note that the operations of each of the CATV systems involved here were different and broader than those of the system before the Supreme Court in Fortnightly. Fortnightly’s system provided a simple reception service and consisted of “antennas located on hills above each city, with connecting coaxial cables, strung on utility poles to carry the signals received by the antennas to the home television sets of individual subscribers.” Fortnightly, p. 392, 88 S. Ct. p. 2085. Although Fortnightly was decided in 1968, the litigation in that case had been instituted in 1960, and, as a result, the Court considered CATV in a state of technology that was then eight years out-of-date. Hence, the Court did not have before it a system that originated programming on non-broadcast channels, that sold commercials on its origination programming, that had the capacity to interconnect with other CATV systems, that utilized microwave links in bringing broadcast signals to its subscribers, and that imported signals from stations located hundreds of miles away from the community that the system was intended to serve. Appellants’ counsel inform us that the Supreme Court was made aware of the changing technology of CATV by counsel for amici and by counsel for Fortnightly (who represent Teleprompter here). Indeed, the Court’s opinion in at least two places implied that it was aware of this fact and was not necessarily laying down a broad rule to apply to all CATV systems regardless of the nature of their operations.

The question before us is whether the character of CATV is so changed by the additional services that the cable systems here have undertaken that their total operation, including the reception service, under the Fortnightly functional test, have become functionally equivalent to those of a broadcaster, and thus these systems should be deemed to “perform” the broadcast programming that they distribute. The additional operations undertaken by these CATV systems, which appellants contend distinguish this case from Fortnightly and bring about this asserted metamorphosis in the character of CATV, are the following: 1) origination of programming on non-broadcast channels, and the sale of commercial time on such non-broadcast programming; 2) interconnection with neighboring CATV systems; 3) use of microwave links in bringing broadcast programming to subscribers; and 4) the importation of distant broadcast signals from outside the area served by the CATV system. We shall consider in order the effect of each of these operations on the application of the Fortnightly doctrine to the CATV systems involved.

II. Non-broadcast Program Origination

At the outset, we reiterate that what is involved here is the origination of programming on channels not used for the distribution of broadcast signals and the sale of commercials on such non-broadcast channels. We do not have before us, and thus do not consider, the question of what the effect would be on the Fortnightly doctrine if programs originated by the CATV system were used to replace selected broadcast programming received from network or independent stations that would otherwise have been distributed without alteration to subscribers on broadcast channels. Similarly, we do not have before us a CATV system that sold commercials on broadcast programming to replace the commercials sold and transmitted by the broadcast station.

Although the Supreme Court noted in Fortnightly that it was not dealing with a CATV system that originated non-broadcast programming, we fail to see why a system’s program origination on channels other than those on which it relays broadcast programming should alter the result in Fortnightly. Obviously, the system “performs” those programs that it originates for distribution to its subscribers. However, we do not see the logic in appellants’ contention that this program origination serves to convert the CATV system into a “performer” of those programs that it distributes to its subscribers on broadcast channels. Even though the origination service and the reception service are sold as a package to the subscribers, they remain separate and different operations, and we cannot sensibly say that the system becomes a “performer” of the broadcast programming when it offers both origination and reception services, but remains a nonperformer when it offers only the latter.

In support of their contention, appellants point to Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc., 141 F.2d 852 (2d Cir.), cert. denied, 323 U.S. 766, 65 S.Ct. 120, 89 L. Ed. 613 (1944). In that case, the defendants had argued that they should not be subject to copyright liability for programs that they broadcast without advertising support but merely as a service to their listeners. This court rejected that contention, noting that the programs, even without advertising, served to increase the total number of station listeners and thus helped to maintain the station as a successful financial entity. Appellants argue that Debs supports their position that the various functions of the CATV systems should be considered as a whole to determine whether the system is functionally equivalent to a broadcaster, in which event it should be deemed a “performer” with regard to all programming it relays to its subscribers. This argument is but a general statement of appellants’ particular contention that non-broadcast program origination converts the system into a “performer” with regard to broadcast programming distributed to subscribers.

Debs, however, does not support either proposition. The issue there was not whether the programs had been “performed” — indeed, having broadcast the programs, the station could hardly contend it was not a “performer”- — but whether the programs had been performed “for profit”; and one can readily see that indirect “profit” accrued to the station in Debs as a result of its unadvertised broadcast of these programs. That decision is not authority for appellants’ broad proposition that the operations of .a CATV system must be viewed and evaluated for copyright purposes as a whole; and, thus, neither can it support the contention that a system’s non-broadcast program origination converts it into a “performer” of broadcast programs distributed to subscribers by its reception service.

Therefore, we hold that the fact that certain of the CATV systems involved here originated programming on non-broadcast channels did not make them “performers,” for copyright purposes, of broadcast programming distributed to subscribers. A contrary approach would be unnecessarily wooden and mechanical in its application of copyright law to CATV.

With regard to the sale of commercial time on non-broadcast programming, although this is another step bringing cable origination programming in competition to some extent with broadcast programming, again, we do not agree with appellants’ position that there is some sort of “spill-over” effect by which the system becomes a “performer” with regard to its reception service.

III. Interconnection

As noted earlier, Teleprompter’s New York CATV system has occasionally interconnected its facility with those of the two other CATV systems operating in the New York area. Appellants analogize this activity to the networking that is common among broadcast stations, and they point to this as another factor making the New York system functionally equivalent to a broadcaster. However, the only interconnection with which we are concerned occurred in two instances of sporting events that the system originated on non-broadcast channels. There was no interconnection here relating to the reception of any telecast of appellants’ copyrighted programs, or indeed of any broadcast programming, received by the system and distributed to subscribers. Therefore, we are not presently in a - position to evaluate what effect interconnection may have on CATV copyright liability if and when it ever reaches the point at which it is equivalent to a network of CATV systems. In light of the minimal interconnection we have before us, we must agree with the district court that “[w]hatever this brief interconnection may portend for the future, it [did] not transform [Teleprompter’s] present CATV system into a broadcasting network as [appellants] suggest.”

IV. Microwave

A relatively recent development in CATV technology that was not before the Court in Fortnightly is the use of microwave to transmit a broadcast signal from the point of its reception off-the-air to the point from which it is distributed by cable to the homes of subscribers. Typically, microwave is used to import distant signals into the CATV community, an activity the effect of which on the issue before us we shall consider below. However, the use of microwave is not necessarily limited to this activity.

Appellants contend that the use of microwave, in and of itself, is sufficient to make a CATV system functionally equivalent to a broadcaster and thus subject to copyright liability for all the programming it receives and distributes to its subscribers. We are unconvinced by this contention. Neither do we believe that the use of microwave makes the system a “performer” only of that programming with respect to which the microwave is used. Microwave utilizes point-to-point communication and is merely an alternative, more economical in some circumstances, to cable in transmitting a broadcast signal from one point in a CATV system to another. Hence, we see no reason to attach legal significance, in terms of copyright liability, to the decision to utilize microwave links.

V. Importation of Distant Signals

Appellants’ final and, in the end, most persuasive contention relates to the fact that certain of the CATV systems involved here distributed to their subscribers signals from broadcast stations located many miles from the communities served by the systems. In CATV parlance, this is known as the importation of distant signals. This activity was not before the Supreme Court in Fortnightly, and appellants contend that that decision did not signify that a CATV system does not “perform” a copyrighted television program when it brings the signal in from another community, often from another television market, and distributes that signal to subscribers.

The CATV system ' in Fortnightly brought television signals to viewers who could not otherwise have received them. However, these signals were already in the community and were not imported by the CATV system from another community, as is evidenced by the fact that the system received them from an antenna located in or directly adjacent to the CATV community. It was only because of topographical conditions in and around the community that residents could not receive the signals on their receivers. Thus, it was the office of the CATV system in Fortnightly to use its advanced antenna technology and equipment to overcome these adverse conditions and thereby to bring the signals to members of the community. The Supreme Court held that, in performing this function, the CATV system did not “perform,” within the meaning of the Copyright Act, the programming carried on those signals. However, in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968), decided just one week before Fortnightly, the Court explicitly recognized that this was only one of two major services that CATV systems render to the communities they serve. In this regard, Mr. Justice Harlan, speaking for the Court, stated at p. 163, 88 S.Ct. at P. 1998:

CATV systems perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae.

When a CATV system is performing this second function of distributing signals that are beyond the range of local antennas, we believe that, to this extent, it is functionally equivalent to a broadcaster and thus should be deemed to “perform” the programming distributed to subscribers on these imported signals. See Select Theatres Corp. v. Ronzoni Macaroni Co., 59 U.S.P.Q. 288 (S.D.N.Y., 1943), cited in Fortnightly, 392 U.S. at 398, n. 23, 88 S.Ct. 2084, for the proposition that “broadcasters perform.” The system’s function in this regard is no longer merely to enhance the subscriber’s ability to receive signals that are in the area; it is now acting to bring signals into the community that would not otherwise be receivable on an antenna, even a large community antenna, erected in that area.

In Fortnightly, the CATV system distributed the programs to an audience to which they would not otherwise have been presented. But the Court did not find this fact significant for copyright purposes. The Court found that the CATV system made these programs available to this new audience by providing it with the services of an advanced antenna. It then reasoned that, since a television viewer was privileged to view whatever programs he could receive using any available antenna, a CATV system should not be deemed a “performer” for copyright purposes when it provided this antenna service as a commercial venture. When a distant signal is involved, CATV is again distributing television programming to a new audience that could not otherwise have viewed it. However, in this case, the new audience is one that would not have been able to view the programs even if there had been available in its community an advanced antenna such as that used by the CATV system. The added factor in such a case is the signal transmitting equipment, such as microwave links, that is used to bring the programs from the community where the system receives them into the community in which the new audience views them. The viewer’s ability to receive the signal is no longer a product solely of improved antenna technology; rather, it results from the system’s importation of the signal into the CATV community from a separate, distant community.

As a result, we no longer have a system that “no more than enhances the viewer’s capacity to receive the broadcaster’s signals.” Fortnightly, p. 399, 88 S.Ct. p. 2089. We hold that when a CATV system imports distant signals, it is no longer within the ambit of the Fortnightly doctrine, and there is then no reason to treat it differently from any other person who, without license, displays a copyrighted work to an audience who would not otherwise receive it. For this reason, we conclude that the CATV system is a “performer” of whatever programs from these distant signals that it distributes to its subscribers.

There remains, however, the difficult problem of defining what is a distant signal. The range of a television signal is a function of many factors, including the current state of broadcast and reception technology. Some of these factors, such as topography, are unchanging in a particular area. But broadcast and reception technology are in a constant state of flux. Moreover, in determining the range of a broadcast signal, it may not be enough to say that the signal is or is not receivable in the community served by the CATV system. The fact that the signal can be received may not be meaningful unless it can project an image that is acceptable according to industry norms.

Thus, it seems clear that a precise judicial definition of a distant signal is not possible. The FCC, for purposes of the CATV signal-carriage requirements, at one time categorized signals as “distant” and “local” in terms of their ability to be received a substantial portion of the time by a substantial portion of the homes in the area by means of home antennas. However, we find this definition unsuitable for copyright purposes because we believe that any definition phrased in terms of what can be received in area homes using rooftop antennas would fly in the face of the mandate of Fortnightly. Thus, in the absence of legislation on this matter, we must undertake to establish some standard for determining what is a distant signal for copyright purposes.

Any determination that „a particular television signal is “distant” must, of course, be made with respect to its proximity to a specific local area, which we have termed the CATV community, served by the CATV system and designated in a franchise issued to it by a state or local government body or regulatory authority. To say that a particular signal is already in the community, which is to say there is no need to import it through a relay or retransmittal device (such as microwave, cable, satellite, or the like), is to indicate that it can be received in the community during a substantial portion of the time by means of an antenna, such as a large community antenna or other receiving device, that is available under current technology. Thus, the meaning of “distant signal” must be determined in light of the current broadcasting and receiving technology. In this regard, we find that it is easier to state what is not a distant signal than to state what is a distant signal. Accordingly, we have concluded that any signal capable of projecting, without relay or retransmittal, an acceptable image that a CATV system receives off-the-air during a substantial portion of the time by means of an antenna erected in or adjacent to the CATV community is not a distant signal. This seems to us to be required by Fortnightly.

When the community from which the signal originates, which we term the originating community, and the CATV community are different, and when the signal is initially received by the system at a location in or near the originating community and then transmitted to the CATV community by microwave or cable, a strong presumption arises that it is a distant signal. The alleged infringer is then under a heavy burden to show that the signal is not a distant signal — that is, that it would be equally receivable off-the-air in the first instance and would project an image of similar quality, if there were substantially similar receiving equipment located in or adjacent to the CATV community. Unless this burden is met, the signal should be deemed a distant signal, and the CATV system would not be within the ambit of Fortnightly with respect to that signal.

Similarly, when the signal is initially received by the CATV system on an antenna or other receiving device located between the originating community and the CATV community, the signal should be deemed a distant signal in the absence of a contrary showing by the CATV system. We do not necessarily mean that the antenna or receiving device on which the signal is initially received cannot in any case be located outside the city limits of the community that has franchised the CATV system. We can envision various legitimate circumstances, such as the desire to take advantage of a tall building, hill, or other topographical feature, that might cause the system to desire to locate its antenna or receiving device in an area closely neighboring the community that it serves. Such an antenna placement is not motivated by the desire to be closer to the signal’s point of origin in order to receive it before its strength is dissipated and then to transmit to another location — presumably the motive that ordinarily underlies a system’s decision to locate its antenna outside the community that it serves. Therefore, we would treat such a case in the same manner as those in which the antenna is located within the CATV community. However, we wish to make clear that the distances we envision here are small, and that any system that locates its antenna more than a few miles from the CATV community should bear the burden of showing that the signals it receives and distributes are not in fact distant signals.

VI. Conclusion

In light of what we have said, we conclude that the CATV systems in New York City and Elmira were properly held not subject to copyright liability. In the case of New York City, it was stipulated that the Teleprompter system did not at any time import distant signals. As to Elmira, although it appears that the system did import and distribute one distant signal from New York City, it is stipulated that none of the programs at issue involving alleged copyright infringement were carried by that station. The remaining stations distributed by the Elmira system were stipulated to have been received by an antenna located on a hill directly neighboring the city, and were thus not distant signals. Therefore, the Elmira system was properly held not subject to copyright liability with respect to programming carried on these signals.

On the other hand, the Rawlins CATV system imported five Denver stations from a distance of 184 miles. It was on these Denver stations that the programs at issue were carried. The system received these stations on an antenna located 90 miles from Denver. Therefore, we conclude that these Denver signals were presumptively distant signals and that, in distributing the programs carried on these stations, the Rawlins system “performed” the copyrighted programs and thereby infringed appellants’ copyrights. For the same reason, we hold that the Great Falls system “performed” the copyrighted programs, which were distributed to subscribers through the importation of a signal originating in Spokane, Washington (284 miles from Great Falls) and received by antennas located 55 and 67 miles from Spokane.

The Farmington system provides potentially the clearest example of distant signal importation, in that signals originating in Los Angeles, California, 600 miles away, were distributed to subscribers. Only one of the Los Angeles stations broadcast any of the copyrighted programs at issue. Inasmuch as this station was received off-the-air by an antenna located a substantial distance from Farmington and then transmitted to the Farmington CATV system for distribution, it is presumptively a distant signal under our holding, and Teleprompter must be held to have “performed” the copyrighted program. The other alleged infringements relate to programs that were carried by stations located in Albuquerque (144 miles) and Durango, Colorado (43 miles). These signals were received by the CATV system on an antenna located on a mesa 30 miles outside of Farmington. We believe that a distance of 30 miles is too great to sustain an assertion that the antenna is adjacent to the CATV community. Instead, on these facts, we must treat the system as one that has located its antenna outside the CATV community. Thus, in the absence of a contrary showing by Teleprompter, these signals should also be deemed distant signals and the system should be held to have “performed” the copyrighted programs and thereby infringed the copyrights.

Of course, each system deemed to have imported distant signals must be afforded an opportunity to show that, although the receiving antenna was located outside the CATV community, the particular signal could have been received in a similar fashion by an equivalent antenna located in or adjacent to the CATV community. We seriously doubt that the Rawlins and Great Falls systems could sustain this heavy burden because of the great distances involved. Similarly, it is doubtful that the Farmington system will be able to make such a demonstration with regard to the Los Angeles station. However, the Farmington system may be in a somewhat better position with regard to its carriage of the Albuquerque and Durango stations. The alleged infringement resulting from this activity concerned programming broadcast by two CBS affiliates — one from Albuquerque and one from Durango. The parties have stipulated that

“[p]ursuant to permission granted by CBS and by [the Albuquerque affiliate], the signals [of the affiliate] were rebroadcast [by a translator system] located near Farmington . . . All of the signals embodying the programs as to which infringement by the Farmington CATV is alleged . . . were rebroadcast by these translators.”

It was further stipulated that, as a result of these translators, “[t]hese signals . . . could be received by residents of Farmington on rooftop antennas.”

From these facts, we conclude, without the need for further showing by Teleprompter, that these Albuquerque stations could have been received by a CATV antenna located within Farming-ton of substantially similar sophistication to that erected on the mesa. Thus, it is clear that the Albuquerque stations were not distant signals, and there is no need to remand to the district court for findings on this point. On the other hand, the stipulation indicated that the signals of the Durango affiliate were not rebroadcast and could not be received by means of rooftop antennas. Thus, if the system is unable to demonstrate that the Durango station is not a distant signal, it must then be regarded as a “performer” of the programming distributed to subscribers on that station. Since the copyrighted programs were distributed to subscribers on both the Albuquerque and the Durango stations, this leads to the conclusion that the Farmington system was a “performer,” and thereby infringed the copyright, when it distributed the programs on the Durango station, but was not a “performer,” and did not infringe, when it distributed the same programs on the Albuquerque station. Although this result is somewhat lacking in symmetry, in the final analysis it will probably result in minimal damages, if any, being imposed on the Farmington CATV system; for we find it hard to see what damages appellants can have sustained, or what profits Teleprompter earned, from the carriage of the Durango broadcasts in light of the system’s simultaneous non-infringing distribution of the programs on the Albuquerque CBS affiliate. By the simple turn of a knob, the viewers who saw the programs on the Durango station could have viewed them, as a result of the efforts of the same CATV system, on the Albuquerque station. However, we think that, unless the Durango station is shown not to have been a distant signal, there was at least a technical infringement of the copyright with regard to that station.

Accordingly, in light of our disposition of the issues on this appeal, we affirm the district court’s holding that Teleprompter’s Elmira and New York City CATV systems did not infringe appellants’ copyrights; we reverse the district court’s decision with regard to Teleprompter’s Rawlins, Great Falls, and Farmington CATV systems, without prejudice, however, to Teleprompter to proceed in the district court within a reasonable time to show that any of these systems did not in fact import distant signals; and we remand to the district court for further proceedings, including the determination of damages, as are not inconsistent with this opinion.

The complex problems presented by the issues in this case are not readily amenable to judicial resolution. As the Supreme Court said in Fortnightly, “[w]e [must] take the Copyright Act of 1909 as we find it,” and do the best we can. We hope that the Congress will in due course legislate a fuller and more flexible accommodation of competing copyright, anti-trust, and communications policy considerations, consistent with the challenges of modern CATV technology.

Affirmed in part and reversed and remanded in part.

      . The original action was commenced on December 11, 1964. Attempts to consolidate this action witli United Artists Television v. Fortnightly, 255 F.Supp. 177 (S.D.N.Y.1966), aff’d 377 F.2d 872 (2d Cir. 1967), rev’d 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), in the district court were unsuccessful. The parties voluntarily stayed proceedings in this case while Fortnightly was on appeal. After the Fortnightly decision, supplemental complaints were filed on December 15, 1969 and May 17, 1971.

      . Appellants claim to have been injured because Teleprompter’s CATV systems distributed signals of stations carrying the copyrighted programs to viewers who could not otherwise have received them. When a CATV system brings a program into its market from a more distant television market, appellants assert that this has a serious adverse impact on the copyright holder’s ability to license that program for later presentation in the importing market.
      We have been informed by one of the amici that a copyright holder usually licenses his programs first to a network and later to local stations for broadcast. The larger markets are ordinarily licensed first because of the greater demand caused by competition among the more numerous broadcast stations in those markets. We are told that if a CATV system brings into the smaller markets programs that are broadcast by network or independent stations in the larger markets, it reduces the potential audience for that program when it is later licensed for exhibition by a local station. As a result, the fee that the station in the smaller market is willing to pay for the right to broadcast the program will diminish, appellants assert, to the injury of the copyright holder.
      Teleprompter has argued that the copyright holder can demand a greater fee from the broadcast station in the larger market in light of the greater audience that will now view the programs as a result of CATV. However, appellants have responded, and we must agree, that the amount that a broadcast station is willing to pay for the privilege of exhibiting a copyrighted program is economically tied more to the fees that advertisers are willing to pay to sponsor tlie program than to some projected audience size. No evidence was presented in the court below to show that regional or local advertisers would be willing to pay greater fees because the sponsored program will be exhibited in some distant market, or that national advertisers would pay more for the relatively minor increase in audience size that CATV carriage would yield for a network program. Indeed, economics and common sense would impel one to an opposite conclusion.

      . By pre-trial order, the trial of this case was divided into separate stages. The first stage, on appeal here, concerned the issue of whether or not Teleprompter had infringed appellants’ copyrights.

      . “Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:
      (c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever . . . and
      (d) To perform or present the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced or reproduced; and to exhibit, perform, represent, produce, or reproduce it, in any manner or by any method whatsoever . . .”

      . The term, “off-the-air,” will be used throughout this opinion to indicate the reception of broadcast television signals by means of an antenna or similar receiving equipment. We use the term, “broadcast,” in accordance with the definition given to “broadcasting” in 47 U.S.C. § 153 (o). Thus, “off-the-air” reception does not include the reception of microwave transmission. See note 6, infra.

      . A microwave link involves the transmission of signals through the air. However, microwave transmission in itself is not broadcasting. A broadcast signal, according' to 47 U.S.C. § 153(o), is transmitted by a broadcaster for “ f reception] by the public.” In the case of microwave, the signal is focused and transmitted in a narrow beam aimed with precision at the receiving points. Thus, microwave transmission is point-to-point communication. The receiving antenna must be in the patli of the signal beam. If the transmission must cover a considerable distance, the microwave signal is transmitted to the first receiving point from which it is re-transmitted to another receiving point, and this process is repeated until the signal reaches the point from which it is distributed by cable to subscribers.

      . A “translator” is a television broadcast translator station that is authorized to rebroadcast a specific station’s signals.

      . Teleprompter has not attempted to show that this letter agreement amounts to an authorization or license for its carriage of the copyrighted programs. The parties stipulated that no such authorization or license was requested or received.

      . This consisted of an automated camera that scanned clock and weather dials.

      . A “non-broadcast channel,” as used in this opinion, is a channel that offers a CATV system’s own original programming but does not offer programs received from broadcast stations.

      . See Fortnightly Corp. v. United Artists, Inc., 392 U.S. 390, 392 n. 6, and 399 n. 25, 88 S. Ct. 2084, 20 L.Ed.2d 1176 (1968).

      . Note 11, supra.

      . The Federal Communications Commission has adopted rules, which appear in 47 C.F.R. § 76.201, requiring CATV systems with more than 3,500 subscribers to commence program origination, which is known in industry parlance as “cablecasting.” These rules were suspended pending judicial review of the FCC’s CATV rules. Although FCC authority over CATV was sustained in United States v. Midwest Video, 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972), the FCC has not yet reinstated the rules.

      . Although we consider them separately, the use of microwave and the importation of distant signals are often very closely connected, in the sense that microwave links are the usual means by which a OATV system imports distant signals. As is evident from the experience of the Xew York system, however, it is possible for microwave to be used apart from distant signal importation, and it is in this sense that we consider in this section of the opinion the effect of microwave on the application of Fortnightly to CATY systems.

      . This was phrased in terms of the Grade B contour, which marks the boundary along which acceptable reception of the signal is expected to be available 90 percent of the time at the best 50 percent of the locations. Sec 47 C.F.R. §§ 73.683 and 73.684. With respect to locations outside its Grade B contour, a signal was considered a “distant signal” by the FCC. Recently the FCO has promulgated regulations that give a broader definition of distant and local signals for purposes of the signal-carriage requirements of CATV systems. 47 C.F.R. §§ 76.59, 76.61, and 76.63. See 37 Fed.Reg. 3263 (Feb. 12, 1972).

      . The franchise represents a grant to the CATV system of authority to run its cables through the public streets and facilities of a city, town, or county to the homes of its subscribers.
      Almost 5,000 such franchises have already been granted, with the number continuing to increase. See Barnett, State, Federal and Local Regulation of Cable Television, 47 Notre Dame Lawyer 681,702 (1972). Although the franchises have for the most part been issued by local autiiorities such as cities and towns, at least five states (Connecticut, Nevada, Rhode Island, Vermont, and Hawaii) have in effect laws subjecting CATV to state regulation, and more appear to be in the process of enacting such state regulatory schemes (e. g., Massachusetts, Illinois, New York and New Jersey), probably because of the disadvantages associated with local as compared with state regulation, id. at 698-708. Hence it may be anticipated that some state agencies may, as part of their new regulatory schemes, create local franchise areas or regions within the state based upon community of interest and population concentrations, as has been done by Connecticut. Id. 701-02.
      As used by us, the term “CATV community” is limited strictly to the specifically designated local area for which the franehise is granted by the state or local authority, which may not be expanded or enlarged by interconnection, merger of two or more franchised areas, or other means. We do not have before us, and thus do not consider, the hypothetical case in which the area for which the franchise is granted is not local, but state-wide or comprising a broad region. We are aware of no such franchises presently granted or under consideration. For the moment, we can say that the “CATV community” we envision is essentially a local entity, the parts of which share substantial common interests.

      . By “relay or retransmittal,” we do not mean the authorized rebroadcast of the signal by a translator station, or the like. See note 19, infra, and accompanying text, where we indicate that the mere use of a translator does not, without more, make the signal a “distant signal,” as that term is used in this opinion. It should bo noted that microwave transmission, in the context of CATV distant-signal importation, does not constitute a broadcast or a rebroadcast. “Broadcasting” is defined at 47 U.S.C. § 153 (0) as “the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.”

      . Teleprompter lias argued that it is insulated from copyright liability by a license implied in law. This court explicitly rejected this argument in our Fortnightly decision. United Artists, Inc. v. Fortnightly Corp., 377 F.2d 872, 880-884 (2d Cir. 1967), rev’d. 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). The Supreme Court in Fortnightly refused to embrace this argument when it rejected the Solicitor General’s proposed compromise resolution of that case, although it did not necessarily reject this lino or reasoning. See 392 U.S. 401-402, 88 S.Ct. 2084. Teleprompter argues that the terms of our decision on this issue in Fortnightly would not necessarily apply to the facts presented by three of the five GATV systems involved here — Elmira, New York City, and Farmington. In light of our resolution of this case, we need not deal with this contention with regard to the Elmira and New York City systems. As to the Farmington system, our decision with regard to the Albuquerque stations obviates the necessity to consider the license-implied-in-law issue. See Part IV, ■infra. On the matter of the Durango station, see note 20, infra. In other respects, we decline to re-examine our prior decision on this issue in Fortnightly.

      . Although these signals were receivable because they were rebroadcast by translators, our earlier statement of the governing standard, “that any signal capable of projecting, without relay or transmittal, an acceptable image that can be reached off-the-air ... by means of an antenna . . . erected in or adjacent to the CATV community is not a distant signal,” does not make the Albuquerque stations distant signals. We were not referring to an authorized rebroadcast of the signal.

      . Wo do not believe that the carriage of the Durango stations falls within our reservation of decision in Fortnightly on the issue of license implied in law, since the Durango station’s broadcasts were not receivable off-the-air by means of rooftop antennas in Farmington. See 377 F.2d at 884.


author: MANSFIELD, Circuit Judge: FRIENDLY, Chief Judge

text:
    John A. HILBERT, III, Petitioner, v. The Honorable John F. DOOLING, Jr., in his capacity as United States District Judge for the Eastern District of New York, Respondent.
    No. 423, Docket 72-2144.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 1, 1972.
    Decided March 12, 1973.
    Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for petitioner.
    Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for respondent.
    Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y. (Richard J. Davis, John W. Nields, Jr., Asst. U. S. Attys., New York City, of counsel), for U. S. Atty., S. D. N. Y., as amicus curiae.
    Before FRIENDLY, Chief Judge, and KAUFMAN, HAYS, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   MANSFIELD, Circuit Judge:

The question raised by this petition for a writ of mandamus is whether dismissal of a criminal charge pursuant to Rule 4 of our Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (hereinafter “Prompt Disposition Rules”) is with prejudice and thus precludes reindictment for the same offense. Because of the exceptional importance of the issue at the time when the petition was filed, we heard the petition en banc. See F.R.App.P. Rule 35(a)(2). We conclude that such a dismissal is with prejudice and that mandamus is the appropriate remedy in this case. Accordingly we order the writ granted and .the second indictment dismissed.

On August 5, 1971, the petitioner, John A. Hilbert, III, and one Bruce A. Turnbull, were arrested by agents of the United States Customs Service. The government contends that at the time of their arrest, Hilbert and Turnbull were in possession of two cartons containing approximately 12 kilograms of marijuana which had allegedly been imported into the United States at Kennedy Airport from Jamaica, West Indies. The two cartons were delivered under government control to a house which was then placed under surveillance. The defendants were arrested a short time after they were observed leaving the house and placing the packages in a car. Neither defendant was incarcerated.

On February 3, 1972, two days before the expiration of the six-month deadline by which the government was required by Rule 4 to be ready for trial, an indictment (the “First Indictment”) was filed charging Hilbert with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 and 18 U.S. C. § 2. February 17, 1972 was then fixed for the arraignment, at which the defendants pleaded not guilty. On March 10, 1972, at a pretrial conference before Judge Dooling, the defendants moved for the dismissal of the indictment for failure to comply with Rule 4. Six days later, and over seven months after the arrests, the United States Attorney filed a notice of readiness. In a memorandum and order dated March 22, 1972, Judge Dooling, finding the government not ready for trial within six months from the date of arrests and finding none of Rule 5’s exclusions applicable, granted the motion to dismiss.

On May 30, 1972, the grand jury handed down a “superseding” indictment charging the petitioner with the same offense. The defendants moved for the dismissal of this second indictment on the ground, among others, that Rule 4 precluded reindictment. On June 14, 1972, Judge Dooling denied the motion, holding that a new six-month period commenced as of May 30, 1972, the date of the second indictment. It was with respect to this order that Hilbert petitioned this Court for a writ of mandamus pursuant to F.R.App.P. Rule 21 and 28 U.S.C. § 1651.

The Prompt Disposition Rules were adopted pursuant to our supervisory power and 28 U.S.C. § 332. The Rules are designed to alleviate the problems of delay in criminal cases by setting standards stricter than the minimum period prescribed by the applicable statute of limitations or required by the Sixth Amendment. See Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. However, the Rules do not mandate trial within a specified period of time, as has been urged by some. See, e. g., American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial 40 (1968). Instead, we have taken a more moderate course, focusing primarily on prevention of prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch. Rule 4 provides that “the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause under rule 5, . the charge shall be dismissed.” (Emphasis added). The onus on the prosecution is somewhat alleviated by Rule 5, which authorizes the district court to grant extensions of the six-month period where justified by reason of such circumstances as other “proceedings concerning the defendant,” the unavailability of material evidence, the unavailability of the defendant, or “[o]ther periods of delay occasioned by exceptional circumstances.” However, the government is put on notice that if it does not comply with the Rules, which provide ample leeway for the legitimate needs of preparing a prosecution, it will be foreclosed from proceeding with the prosecution.

In summary, the Rules are designed to require the government to be ready to try cases promptly, subject to certain types of delay generally recognized as arising from legitimate or unavoidable causes. The purpose of Rule 4 is to insure that regardless whether a defendant has been prejudiced in a given case or his constitutional rights have been infringed, the trial of the charge against him will go forward promptly instead of being frustrated by creeping, paralytic procedural delays of the type that have spawned a backlog of thousands of cases, with the public losing confidence in the courts and gaining the impression that federal criminal laws cannot be enforced.

Although Rule 4, in providing that the “charge shall be dismissed” whenever the government is not ready for trial within the six-month period as extended, does not state explicitly that the dismissal shall be “with prejudice,” our intent to mandate such a dismissal is readily apparent from the language, purpose and internal logic of the Prompt Disposition Rules. The use of the imperatives “must” and “shall” and of the word “charge” manifest an intent not only that the dismissal be mandatory but that it have a binding effect. If the Council had intended to give district courts the discretionary power to dismiss with or without prejudice, it would have used permissive language of the type found in Rule 48(b) of the F.R.Cr.P., which provides in pertinent part that “[T]he court may dismiss the indictment, information or complaint” (emphasis added) and, like F.R.Cr.P. 48, it would have referred to the document containing the charge, i. e., the indictment, rather than use the more inclusive term “charge.” Cf. F.R.Cr.P. Rules 3 and 7(c).

Our intent is further manifested by the overall structure of the Prompt Disposition Rules, which specify a gamut of exceptions under which the six-month period could be extended. This detailed and painstaking delineation would have been largely fruitless if the sole sanction for non-compliance were a dismissal which did not preclude reindictment. As the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases provides:

“If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defend-
“The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required by some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded.” ant who lias been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.”

If the government were permitted to re-indict after a Rule 4 dismissal, our Prompt Disposition Rules would for the most part be rendered a dead letter, since the government would have less incentive to push forward to trial. Moreover, if reindictment were permitted, the defendant in some instances might actually be placed in a worse position by the Prompt Disposition Rules than if they had not been adopted. Under preexisting procedures he would continue to face trial in the single pending proceeding, represented by the same trial counsel and having the benefit of expenses incurred for one bail bond and one lawyer. Reindictment, on the other hand, would start a new proceeding, which could result in a second arrest, necessitating the retention of new legal counsel, the posting of a new bond, and other steps, all at a further cost in terms of money, time and psychological distress. Cf. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The instant case is illustrative. Judge Dooling, by permitting reindictment and by finding that Rule 4’s six-month period ran from the date of the reindictment, May 30, 1972, in effect allowed the government at least 16 months from the date of the original arrest to be ready for trial and concomitantly placed the defendants in the position of risking duplicative expenses and protracted fear not only of the second prosecution but of the possibility of a third case if the court should dismiss the second indictment for failure of the government to be ready according to the Prompt Disposition Rules. Such a result certainly clashes with the underlying purposes of those Rules.

Our view that dismissal without prejudice would seriously undermine the Rules is shared by the American Bar Association’s Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, 40-41 (1968), which states “that the only effective remedy for denial of speedy trial is absolute and complete discharge. Prosecutors who are free to commence another prosecution later have not been deterred from undue delay.” The government suggests that the Circuit Council is powerless to promulgate a rule having the effect of mandating dismissal with prejudice because of the government’s non-readiness within six months plus such extensions as are granted by the district court. We disagree. Title 28 U.S.C. § 332 provides in pertinent part:

“Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council.”

The genesis of § 332 was “an Act to provide for the administration of the United States courts. . . . ” Ch. xv, § 306, 53 Stat. 1223, 1224 (Aug. 7, 1939). Under the guidance of Chief Justice Groner of the Court of Appeals for the District of Columbia Circuit, a Committee of the Judicial Conference, working with a committee appointed by the Attorney General, drafted the 1939 bill, S. 188, which was subsequently enacted by Congress with minor modifications. Report on the Powers and Responsibilities of the Judicial Councils, H.R.Doc.No.201 at 4, 87th Cong., 2d Sess. (1961) (hereinafter “1961 Report”). That bill was designed to provide the newly established Judicial Councils with the tools needed to deal effectively with such problems as judicial delay. Chief Justice Groner emphasized in his testimony presenting the bill to the Senate Committee on the Judiciary that:

“[T]he criticism of the courts is due to delay. .
“Those matters this bill undertakes to provide for by outlining certain duties of the judicial council. Under the present judicial set-up we have no authority to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism. .
“The bill also provides what is not now true, that it shall be the duty of the district judges, when admonished or when matters are otherwise brought to his attention by the judicial council, to take ivhatever steps are thought to be necessary to correct those things which ought not to exist in a well run judicial system.” S. Rep.No.426, 76th Cong., 1st Sess. (1939) (emphasis added).

This statement by one of the principal drafters of the bill, made at a hearing of the Senate Committee which originated the legislation, is entitled to considerable weight. Cf. SEC v. Robert Collier & Co., 76 F.2d 939, 941 (2d Cir. 1935).

The view that the powers of § 332 were intended to be expansive was echoed by Congressman Emanuel Celler, former Chairman of the Committee of the Judiciary of the House, who was a conference committee member and a manager at the time of the original enactment and by a group of distinguished jurists who, after conducting a study of the powers of the Judicial Councils, concluded that “the responsibility of the councils ‘for the effective and expeditious administration of the business of the courts within its circuit’ extends not merely to the business of the courts in its technical sense (judicial administration), such as the handling and dispatching of cases, but also to the business of the judiciary in its institutional sense (administration of justice), such as the avoiding of any stigma, disrepute, or other element of loss of public esteem and confidence in respect to the court system. . . . ” 1961 Report, supra at 8-9.

The text of § 332 corroborates the legislative history and purpose of the Act. Former Chief Judge Lumbard accurately characterized the statute when he said “As this language is about as broad as it could possibly be, there is no doubt that Congress meant to give to the eouncils the power to do whatever might be necessary more efficiently to manage the courts and administer justice,” Lumbard, The Place of the Federal Judicial Councils in the Administration of the Courts, 47 A.B.A.J. 169 (1961) (emphasis added). Similarly Chief Justice, then Judge, Burger, deploring the councils’ failure to use their powers, noted that § 332 is “all-embracing and confer [s] almost unlimited power. Any problem — whatever it may be — relating to the expeditious and effective administration of justice within the circuit is within the power of the Circuit Judicial Council.” Proceedings of the Attorney General’s Conference on Court Congestion and Delay in Litigation 58 at 59-60 (1958).

Thus Congress’ intent, as manifested by both the language and history of the act, was to give the Councils broad powers to deal with the evil of judicial delay. Our Prompt Disposition Rules, following § 332’s mandate, have attempted to attack this problem, with an effective sanction, i.e., dismissal with prejudice for tardy prosecutorial behavior.

Although Rule 4 and Rule 48(b), F.R. Cr.P., deal with the same general subject matter — the court’s power to dismiss for delay — we do not find any inconsistency between the two rules. Rule 48(b), which provides for dismissal by the court “ [i] f there is unnecessary delay. . . .,” is merely a restatement of “the inherent power of the court to dismiss a case for want of prosecution,” Committee Note to Rule 48, 8A Moore’s Federal Practice if 48.01. Dismissal under Rule 48 may be without prejudice, see, e.g., Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962)—or it may be with prejudice, see, White v. United States, 126 U.S.App.D.C. 309, 377 F.2d 948 (1967)—indeed it must be with prejudice where it is on Sixth Amendment grounds or where prosecution is barred by the statute of limitations. Our Speedy Trial Rules merely flesh out the skeleton of Rule 48, giving content to the sweeping phrase “unnecessary delay” by substituting a more precise, albeit still flexible, six-month rule. Having spelled out in detail the conditions for dismissal with prejudice, the need for discretionary power to dismiss without prejudice ceases to exist where such conditions are met.

Nor does Rule 4 deprive the district court of discretion except under circumstances where, in the Council’s opinion, it would be an abuse of discretion not to dismiss with prejudice. The district court retains the power to determine in its discretion whether the period within which the government must be ready should be extended beyond six months for any one or more of the reasons specified in Rule 5; and pursuant to Rule 48(b) the 'district judge may still decide that unless the government in exceptional cases is ready to proceed to trial in less than six months, the indictment will be dismissed without prejudice to reindictment. Thus nothing in Rule 48(b) implies that it is the exclusive source of the court’s power to dismiss an indictment because of delay or that it precludes mandatory dismissal with prejudice under specified circumstances. Indeed, dismissal with prejudice is required by the Sixth Amendment where the delay is of constitutional proporRule 48(b), therefore, merely confirms the court’s general power in the area. tions.

The cases suggesting a contrary conclusion are distinguishable and do not rule out discretionary dismissals with prejudice under circumstances falling short of constitutional or statute of limitation infirmities. In Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962), the government itself raised the possibility of a dismissal (which suggests that the dismissal was pursuant to Rule 48(a) not Rule 48(b)), and as most of the delay was of the defendant’s “own making,” the trial court “clearly expressed its intent to award the dismissal without prejudice to further prosecution should the government later uncover the missing evidence.” 304 F.2d at 397. See United States v. Chase, 372 F.2d 453, 463-464 (4th Cir.), cert. denied, 387 U. S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967), which also arose under Rule 48(a). Although some of the language in United States v. Apex Distributing Co., 270 F.2d 747, 750-751 (9th Cir. 1959) (en banc), where dismissal was based on the government’s failure to comply with pretrial discovery orders, appears to reject dismissal with prejudice except in instances when reindictment is barred by the statute of limitations (or, presumably, by the Sixth Amendment) the context is entirely distinguishable since the court there had no occasion to consider the effect of detailed rules of the type here under consideration, which give the government fair and reasonable notice of the consequences of its non-readiness. Although Chief Judge Friendly in United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972), which held that the dismissal of the indietment there pursuant to Rule 48(b) was not appealable by the government under a specific jurisdictional statute, stated that the dismissal did not “bar” another prosecution, it does not appear that the district court had purported to dismiss with prejudice. Furthermore the court found “nothing in the colloquy to suggest” that the dismissal was pursuant to Rule 4 of our detailed Prompt Disposition Rules, which is the issue here under consideration.

There remains the question of whether mandamus is the appropriate form of relief. We conclude that it is. “The peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); see DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945); United States v. Dooling, 406 F.2d 192 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); cf. Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595, 622 (1973). As we have found that Rule 4 of our Prompt Disposition Rules mandates dismissal with prejudice, the district judge was without power to deny the motion to dismiss the second indictment. Unlike the situation in Will v. United States, supra, where mandamus sought by the government was denied, the Court noting that the delay occasioned by piecemeal review could affeet “the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense,” 389 U.S. at 98, here the denial of the writ, by allowing the second indictment to stand, would jeopardize these important rights.

The petition for writ of mandamus is granted and the district court is directed to dismiss with prejudice the second indictment of the petitioner.

FRIENDLY, Chief Judge

(dissenting) :

However desirable the result reached by the majority may be from a policy standpoint, I cannot agree that either 28 U.S.C. § 332 or the inherent supervisory power of a court of appeals authorizes a judicial council to direct by rule how a district judge shall exercise his discretion in determining whether dismissal of an indictment shall be with or without prejudice. The legislative history of § 332, recited in my brother MANSFIELD’s excellent opinion, has an import to me just the opposite of what it has to the majority. I agree that § 332 gives the judicial council a plenitude of powers with respect to the administration of the district courts, not only over the work of individual judges but over the courts themselves. However, Chief Justice Groner’s reference to the then lack of authority “to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism” cannot fairly be expanded, without unduly defying the principle of ejusdem generis, to telling a district judge that he must invariably exercise his judicial discretion with respect to the effect of the dismissal of an indictment in a particular way. The majority’s reading also seems to me to put more weight on the very general remarks of Representative Celler, twenty-two years after § 332 was enacted, than they can fairly bear. The action of our Judicial Council in fleshing out F.R.Cr.P. 48(b) by giving specific content to the phrase “unnecessary delay” seems to me to have gone to the verge of its power under § 332. I can find no basis for taking the further step of holding that Congress meant to empower a judicial council to adopt a rule that would withdraw the district judge’s discretion, admittedly afforded by Rule 48(b), to dismiss either with or without prejudice as he deemed appropriate. While refusal to dismiss with prejudice in a particular case may be an abuse of discretion, the remedy for this is not mandamus, Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), but appeal from a conviction on a new indictment if conviction there would be.

I should have written in greater depth save for the fact that, with the adoption of F.R.Cr.P. 50(b) and of district court rules for the prompt disposition of criminal cases thereunder, the power of the Judicial Council to direct dismissal with prejudice for violation of its Rules for the Prompt Disposition of Criminal Cases will now be academic for the future. Rule 50(b) clearly empowers a district court, with the approval of the reviewing panel, to provide that dismissal shall be with prejudice, as has now been done. However, it is worth noting that Rule 4 of the district court rules which have been approved in our circuit, see fn. 2 to the majority opinion, affords a measure of flexibility not contained in the Second Circuit Rules for the Prompt Disposition of Criminal Cases, which, having well served the important purpose that led to their adoption, have now been repealed on the effective date of the new district court rules.

I would deny the writ.

      . Rule 4 provides :
      “4. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for ti'ial within such time, or within the periods as extended by the district court for good cause under rule 5, and if the defendant is charged only with non-capital offenses, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.”

      . The importance of the issue has been somewhat diminished as a result of the recent adoption by the various district courts within the Second Circuit of new rules for the prompt disposition of criminal cases pursuant to Rule 50(b), F.R.Cr.P., which became effective on October 1, 1972.
      These local rules specify in more detail the circumstances under which a charge is to be dismissed with prejudice. Our decision, therefore, governs only those dismissals during the period from July 5, 1971, when the Prompt Disposition Rules went into effect, to April 1, 1973, when the new local district court rules become effective.

      . The First Indictment contained two counts. The first count charged both Hilbert and Turnbull with willful possession of marijuana, a violation of 21 U.S.C. § 841, and 18 U.S.C. § 2. The second count separately charged Turnbull with unlawful importation of marijuana (in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2).

      . Rule 5 of the Prompt Disposition Rules provides:
      “In computing the time within which the government should be ready for trial [the following periods should be excluded by the district court] :
      “(a) The period of delay while proceedings concerning the defendant are pending. .
      “(b) The period of delay resulting from a continuance granted by the district court at the request of, or with the consent of, the defendant or his counsel.
      “(c) The period of delay resulting from a continuance granted at the request of a prosecuting attorney if:
      (i) the continuance is granted because of the unavailability of evidence material to the government’s ease.
      “(d) The period of delay resulting from the absence or unavailability of the defendant. .
      “(e) A reasonable period of delay when the defendant is joined for trial with n. codefendant as to whom the time for trial has not run and there is good cause for not granting a severance.
      “(f) The period of delay resulting from detention of the defendant in another jurisdiction.
      “(g) The period during which the defendant is without counsel for reasons other than the failure of the court to provide counsel for an indigent defendant or the insistence of the defendant on proceeding without counsel.
      “(h) Other periods of delay occasioned by exceptional circumstances.”

      . The second indictment included three counts. The first two counts were essentially the same as their ' corresponding number in the first indictment. See note 3 supra. The third count charged Turnbull with conspiracy under 21 U.S.C. §§ 846 and 963, in violation of 21 U.S.C. § 841 (a) (1) and § 952 (a). As to petitioner, Hilbert, the indictments were identical. As to defendant Turnbull, though we need not decide the issue, the addition of a conspiracy count based on essentially the same transaction would not appear to be legally significant for the purpose of determining whether the charge should be dismissed under Rule 4 of the Prompt Disposition Rules.

      . Rule 48(b) of F.R.Cr.P., dismissal by court, provides:

      . Nothing we have said should be construed as precluding reindictment when there have been extraordinary circumstances such as fraud upon the court in obtaining the dismissal, suppression of evidence by a defendant, or the like, which would warrant an extension of time.

      . For a detailed delineation of the legislative history of 18 U.S.C. § 332, see Chandler v. Judicial Council, 398 U.S. 74, 89-129, 90 S.Ct. 1648, 26 L.Ed.2d 100 (Harlan, J., concurring). As of the 1948 Amendment, § 332, 62 Stat. 869, 902 (June 25, 1948), the provision was largely in its present form with subsequent amendments limited to language and syntactical modification.

      . Congressman Celler stated: “[I] know it was the intention of the Congress to charge the judicial councils of the circuits with the responsibility for doing all and whatever was necessary of an administrative character to maintain efficiency and public confidence in the administration of justice.” Forward, 1961 Report, supra at v.

      . The Special Committee to study the Powers of the Judicial Councils arose from the September 1960 Judicial Conference. The Committee consisted of Chief Judge Harvey M. Johnsen of the Eighth Circuit, Chairman; Chief Judge J. Edward Lumbard of the Second Circuit; Circuit Judge Richard T. Rives of the Fifth Circuit ; Chief Judge Royce H. Savage of the Northern District of Oklahoma and Chief Judge Roszel C. Thomsen of the District of Maryland. The Judicial Conference, after a few modifications, adopted the report at its session of March 13-14, 1961.

      . Rule 48(a) of the F.R.Cr.P. which deals with dismissals by the attorney for the government provides :
      “The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.”

      . Title 28, § 1051(a) provides:
      “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of tlieir respective jurisdictions and agreeable to the usages and principles of law.”