At bottom, then, the city would rather reserve the space for some other uses than give it to Preferred.

We cannot accept the City's contention that, because the available space on such facilities is to an undetermined extent physically limited, the First Amendment ... permit[s] it to restrict access and allow only a single cable provider to install and operate a cable television system." 754 F.2d at 1404.5

Given that we hold the one operator/one area policy is invalid, the city must make available through an appropriate NOS at least one additional franchise for South Central Los Angeles. While we decline Preferred's request that we order the city to actually grant that franchise to it, the invalidation of the monopoly policy means that the obstacle preventing Preferred from applying before has now been removed from its path. Preferred will have an opportunity to apply and compete for a South Central franchise. Should it choose to do so, this will tell us several important things.

32

First, we will learn whether Preferred is in fact "ready, willing and able" to operate a cable system. The city must issue another request for proposals pursuant to its Cable Communications Master Plan; if Preferred fails to participate, we will know it has suffered no injury from the franchise scheme. Alternatively, Preferred may apply but be denied the franchise on the basis that it lacks the requisite technical or financial qualifications. Again, if that's so, Preferred will lack standing to proceed with this litigation. It's also possible Preferred will be denied a franchise because it failed to satisfy one of the disputed requirements; in that case, we will be able to review the requirement's constitutionality without having to speculate as to its operation or relation to the overall scheme. The franchise may also be awarded to another operator who makes a more attractive bid, in which case Preferred will have no standing to challenge any of the restrictions placed on that franchisee. Finally, the auction may result in the award of a franchise to Preferred. If that happens, then all of Preferred's claims for injunctive relief will become moot.

33

Moreover, the invalidation of the monopoly policy--the heart of the city's franchise system--may significantly alter the rest of the scheme. Many of the provisions, such as universal service, may make sense in the context of a regulated monopolist but will be unnecessary or counterproductive once competition is introduced. And while we express no view on the rest of the district court's order, the city may well heed the concerns of the learned district judge who found that many of the provisions violated the First Amendment. All government officials have a duty to uphold the United States Constitution, and we're confident that Los Angeles' officials are mindful of this responsibility.

34

Since there are so many ways we might well avoid having to confront these difficult constitutional issues, it would be precipitous of us to reach them at this time. Were we to try, we would have to "decide the legal questions posed by the parties without a more thoroughly developed record ...," Preferred II, 476 U.S. at 494, 106 S.Ct. at 2037, something the Supreme Court refused to do when reviewing our last opinion. Id. If we failed to follow the Court's example, "we would not escape the charge of rendering advisory opinions poorly disguised as sweeping dicta." Preferred I, 754 F.2d at 1401

There are important differences between print and cable media, however. Most significant is that cable systems place a strain on public resources: They disrupt traffic and take up public easements and rights of way. Unlike newspapers, a "cable company must significantly impact the public domain in order to operate." Community Communications Co., Inc. v. City of Boulder, 660 F.2d 1370, 1379 (10th Cir.1981). The economic oddities of cable, coupled with the burden on public resources caused by the entry--and exit--of additional operators, may arguably justify some limitations on the number of operators. Id.; see also Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119, 128 (7th Cir.1982) (Posner, J.). But this is just another way of expressing the city's interest in avoiding traffic disruption and visual blight,

THE ORDINANCE NEVER EXISTED —- THE 9TH CIRCUIT RULING IN THE 93 APPEAL IS FABRICATED BEGINNING AT PART I3.

which we have already disposed of. See pp. 1330-1331, supra. Repackaging these interests under the rubric of natural monopoly makes them no more compelling. For the reasons discussed above, the one operator/one area limitation is not narrowly tailored to advance this interest. We emphasize again: The city may restrict the number of entrants into the cable market, but it may not resiven that we hold the one operator/one area policy is invalid, the city must make available through an appropriate NOS at least one additional franchise for South Central Los Angeles. While we decline Preferred's request that we order the city to actually grant that franchise to it, the invalidation of the monopoly policy means that the obstacle preventing Preferred from applying before has now been removed from its path. Preferred will have an opportunity to apply and compete for a South Central franchise. Should it choose to do so, this will tell us several important thingstrict the number to only oneThe dis

iT MISSTATES FACTS

tHE cITY COLDED WITH THE jUDGE

jUDGE FABRICATED A HEARING — IN 1993Intercircuit assignments are different, reinforcing Congress’ own distinction from earlier times. If help is sought from outside a circuit, a higher level of authority is required: The chief justice of the United States must give permission.26 The chief judge of the borrowing court must certify that assistance is needed and submit a request for aid to the Judicial Conference Committee on Intercircuit Assignments,27which in turn handles the arrangements of visits and submits the formal request to the chief justice. Once again, if the judge being assigned is active, her chief judge must approve (along with the chief judge of the borrowing circuit).28 And if the judge being assigned is senior, she must consent to the assignment.29

There is one final complication when bringing in an out-of-circuit judge: Intercircuit assignments must comport with the so-called “lender/borrower rule.” The nonstatutory rule dates back to 1997, when it was approved by Chief Justice William Rehnquist, and states that “a circuit that lends active judges may not borrow from another circuit within the same time period of the assignment; a circuit that borrows active judges may not lend within the same period of the assignment.”30 (Senior judges are exempt from this rule.31)

trict court awarded Preferred injunctive relief and $1 in nominal damages.he district court denied the request the order denying monetary relief as to all claims is AFFIRMED;MEMORANDUM**

As one aspect of this epic piece of litigation, each side appeals the district court's award of $530,489.31 in attorney's fees to Preferred. The city of Los Angeles contends any award was improper; Preferred argues the award was proper but too parsimonious. The question of a fee award in this case amounts to a string of complex judgment calls. Accordingly, the district court issued a detailed 38-page explanation of how it reached its decision. We review the award for abuse of discretion. Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991).

A. The city argues Preferred isn't a prevailing party within the meaning of 42 U.S.C. § 1988, because it lost on many of its claims. It's true that a party becomes eligible for a fee award only if it wins at least some of what it sought in its lawsuit. But Preferred not only won some of what it sought; it prevailed on the central issue of the case: The one area/one operator policy was found unconstitutional by the district court, a judgment we affirm today in a separate opinion. Though Preferred was not actually awarded a franchise, it has secured the right to compete for one. That's a significant victory, one which has altered the legal relationship between Preferred and the city. This is all that's required for Preferred to be eligible for fees. See Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 789, 791-92 (1989). Aside from Preferred's ability to compete, it has strengthened and clarified important constitutional rights through this lawsuit, independently establishing its entitlement to fees. Mantolete v. Bolger, 791 F.2d 784, 787 (9th Cir. 1986). Finally, Preferred was awarded nominal damages, and "a plaintiff who wins nominal damages is a prevailing party under Sec. 1988." Farrar v. Hobby, 113 S. Ct. 566, 573 (1992).

B. Preferred challenges the district court's determination of a reasonable hourly rate. It argues the district court erred in taking into account the hourly rate charged by opposing counsel. Preferred says it shouldn't be saddled with that low figure, since the city got the benefit of a reduced government rate. But the court didn't peg Preferred's rate to that charged the city; it simply took that rate into account as one of many factors. CR 615 at 29. We find no abuse of discretion in this. Nor do we find any in the district court's consideration of several other factors in its calculations: the prevailing rate in Los Angeles, the special skill and experience of Preferred's attorneys, the evidence submitted by Preferred to support the rates it paid its lawyer and the role of a reasonable rate in attracting counsel to future cases.

Preferred next argues the court should have used current hourly rates, rather than assigning its attorneys' hours the value they had when the work was performed. But the lion's share of the work on the case had been done relatively recently, CR 615 at 32, and the court did not abuse its discretion in refusing to use current rates as a way of compensating for inflation and delay in payment. We thus affirm the court's determination of a reasonable hourly rate.

C. The court's handling of the total number of hours spent on the case is problematic in light of our ruling on the merits. Since we have vacated a considerable part of the district court decree as advisory, Preferred has prevailed only on some of its claims. Because its success was partial, on remand, the district court must reduce the award to take account of Preferred's limited success. The fee cannot include time spent on unrelated unsuccessful claims, and must be reduced from full compensation on related claims to take account of plaintiffs' partial and limited success and the significance of the overall relief obtained. Hensley v. Eckerhart, 461 U.S. 424, 440 (1983); Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986).

Preferred argues the court erred by reducing the total hours for "billing judgment" three different ways. The court refused to consider hours on timesheets that contained no substantive description of the work done, and separately omitted all work done by legal staff who spent fewer than 150 hours on the case. In addition, it cut the total remaining hours by 10%. The cuts were not at all redundant. The first two cuts corrected the baseline: one to exclude improperly documented time, the other to offset the start-up costs and the lack of familiarity associated with the use of lawyers for such relatively short periods of time. The 10% cut thus is really the only one that corrected for billing judgment errors.

Preferred next argues the district court excluded too many of the hours spent on its Supreme Court appeal. The district court considered all of Preferred's arguments regarding the complexity and demands of that appeal, and it concluded that 450 hours was a reasonable amount of time to spend. We find no abuse of discretion.

D. The court docked Preferred $2,000 for filing its request for attorney's fees and its request to tax costs late, and for misrepresenting authority. See C.D. Cal. Local Rules 27.1 and 16.10. And, while the court granted Preferred leave to file its application for fees late, the court refused to consider Preferred's late application to tax costs. The application to tax costs was filed 18 days after judgment, beyond the 15-day limit provided for in Local Rule 16.10; there was no abuse of discretion in refusing to grant Preferred an exception to this rule. Nor was there an abuse of discretion in the court's decision to impose sanctions against Preferred on account of its late filing and its mischaracterization of authority.

Preferred's request for fees included payment for the hours spent preparing its fee application. The district court cut those hours by more than half to reflect the extra time required by Preferred's own error in filing the request late, and to reflect the extra time Preferred had to spend to correct deficiencies in its original request. CR 615 at 36-37. Preferred says its request for fees didn't include the extra time it had to spend because the request was late. But even if we found that factor improper for the district court to consider, we still could not find that the resulting award--$32,500--reflected an abuse of discretion.

Preferred next protests the district court's refusal to award it out of pocket expenses, such as overnight mailings, phone bills and meals. The district court ruled that Preferred had inadequately documented those expenses, and rejected a later offer by Preferred to submit its receipts. Because the expenses weren't submitted in a fashion that enabled the district to determine whether they were reasonable, the court did not err in refusing to grant the request.

E. Finally, Preferred argues the district court should have enhanced the lodestar to reflect the risk inherent in this type of representation. But risk premiums are inappropriate under federal fee-shifting statutes. See City of Burlington v. Dague, 112 S. Ct. 2638, 2643-44 (1992) (finding contingency enhancement inappropriate under a statute with provisions similar to section 1988); see also Stewart v. Gates, 987 F.2d 1450, 1453 (9th Cir. 1993) (applying Dague to section 1988).

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

*

The Honorable Eugene E. Siler, Jr., United States Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 - WHO IS

C. The court's handling of the total number of hours spent on the case is problematic in light of our ruling on the merits. Since we have vacated a considerable part of the district court decree as advisory, Preferred has prevailed only on some of its claims. Because its success was partial, on remand, the district court must reduce the award to take account of Preferred's limited success. The fee cannot include time spent on unrelated unsuccessful claims, and must be reduced from full compensation on related claims to take account of plaintiffs' partial and limited success and the significance of the overall relief obtained. Hensley v. Eckerhart, 461 U.S. 424, 440 (1983); Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986).

SUBMITTED JUNE 8 DECEDIED JAN 7??

The city of Los Angeles contends any award was improper;s. That’s

something that I would like to see far more widespread. What’s unique is your

theory about how to measure the damages. That is, whatever the benefit was to

the person who denied you your Civil Right, is going to be your damages because

you don’t have any other way to measure.

FARROW: He’s the guy that put a value on it by taking it from you. He fixed the

value when he took them.

SMITH: Very interesting. Very interesting.

FARROW: Strat, I see the way to deal with those things. You worry with them and

you worry with them and you worry with them and you know there has to be an

answer. The law they taught me at law school was that for every wrong there has

got to be a remedy. I remember that. I remember the simple things. Once you

remember the simple things, then you just have to keep looking. As you think

about it, you ask a lot of questions, you keep people thinking, until later somebody

says the right thing and your mind pops open.

SMITH: When we went off the record for a moment, we were talking about the

theory of measuring damages for a civil rights violation by the benefit to the one

who deprived you of your civil right. That is a theory that would be some fun to sit

back and apply to any number of civil rights that people are denied in their daily

existence.

FARROW: If a policeman beats a guy up, they’ve got the whole history of tort

1/22/25, 2:06 AM Harold Farrow Oral History | Syndeo Institute at The Cable Center

https://syndeoinstitute.org/the-hauser-oral-history-project/f-listings/harold-farrow/ 45/60

litigation to value the pain and suffering to work with. We have worked out the

mechanism to measure an immeasurable, in that case. If a person breaches a

contract, as an example, we were talking about these cases where the

municipality insists upon denying rate increases, there is a mechanism for that.

There is a mechanism worked out for breach of contract damages. As I mentioned

to you a while ago about copyright, which is the closest thing I can come to, where

you measure the benefit to the tortfeasor, the guy who steals the copyright, as

being the damages to the guy who owned the copyright. There are a number of

other situations, I’m certain, where once you get the idea and get the concept

going and you begin to look at other feasor law, you’ll find more and more of those

situations. I’m satisfied that we’re going to be able to present a decent brief to the

Appellate Court, but I think it will be unique and they’ll have to see the policy

reason for developing the theory in order to accept it. It’s not enough that the

concept be logical or that it’s found fair or whatever. There is going to be a

compelling reason to do it. In this case, the compelling reason is that if you don’t

do it and you let this process continue going on, you’re going to, in effect,

eviscerate the First Amendment. If you can do it to cable, you can do it to

magazines and newspapers and everybody else. If you do that, you destroy the

one thing that really holds the glue of the democratic society together. It is, from a

policy standpoint, imperative that we solve the problem. With a municipal

government, that’s where tyranny begins in this country.