NATIONAL ASS'N OF REG. UTIL. COM'RS v. F.C.C. No. 75-1075.
533 F.2d 601 (1976)
NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Manhattan Cable Television, Inc., et al., Intervenors.
United States Court of Appeals, District of Columbia Circuit.
Decided February 10, 1976.
Stephen G. Kraskin, Deputy Asst. Gen. Counsel, Washington, D. C., for petitioner. Paul Rodgers and Kenneth E. Hardman, Washington, D. C., were on the brief for petitioner.
Sheldon M. Guttmann, Counsel, Federal Communications Commission, Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, Washington, D. C., at the time the brief was filed. Carl D. Lawson and John J. Powers, III, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents.
Thomas J. O'Reilly, Washington, D. C., with whom Lloyd D. Young, Washington, D. C., was on the brief for intervenor United States Independent Telephone Association.
J. Laurent Scharff and W. T. Pierson, Jr., Washington, D. C., were on the brief for intervenor Manhattan Cable Television, Inc.
Stuart F. Feldstein, Charles S. Walsh, John V. Kenny and Samuel Cooper, III, Washington, D. C., were on the brief for intervenor, National Cable Television Association, Inc.
Before LUMBARD, Senior Circuit Judge for the Second Circuit, WRIGHT and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Concurring Opinion filed by Circuit Judge LUMBARD.
Dissenting Opinion filed by Circuit Judge WRIGHT.
This action is before the court on petition for review of one aspect of FCC policy pertaining to cable television, as enunciated and clarified in recent Commission reports. Petitioner's sole objection is to the Commission's pre-emption of state common carrier regulation over the use of cable system leased access channels for two-way, point-to-point, non-video communications.
The challenged pre-emption is part of a comprehensive plan for the regulation of cable television systems, which the Commission has been developing and refining since asserting jurisdiction over cable operations in 1966.
Under regulations promulgated at that time,
The leased access requirement involves no discrete allocation of space for one particular purpose, as is involved in the other access channel requirements. The regulations require that "portions" of bandwidth be set aside for the use of paying customers, with the proviso that such commercial operations are subject to displacement if the special purpose access channels experience greater demand than they can satisfy.
The 1972 Order initially established the general policy of leaving the access channels, including the leased access bandwidth, free of state or local regulation.
In support of this pre-emption policy, the Commission rested primarily upon its overall statutory mandate ". . . to make available, so far as possible, to all the people of the United States a rapid, efficient, nation-wide, and world-wide wire and radio communications service. . . ."
I. Impact of 47 U.S.C. § 152(b)
Section 152(b) of Title 47
A. Has the Commission attempted to pre-empt state and local regulation of common carrier activities?
The Commission argues that the two-way, non-video communications via cable, over which it has pre-empted state and local regulation, are not common carrier communications because they are carried on by entities (cable operators) previously adjudged to be non-common carriers.
In a recent case of the same name as that now before the court, we set forth our understanding of the common carrier concept as invoked by the Communications Act.
A second prerequisite to common carrier status was mentioned but not discussed in the previous N.A.R.U.C. opinion.
Applying these two tests to the two-way, point-to-point, non-video communications over which the Commission here asserts its pre-emptive power, we conclude that a common carrier activity is involved. We are able to reach this conclusion, even though there is no evidence before us arising from any actual operations in the two-way, non-video mode, by examining the nature of the projected activity and the regulatory framework in which it is expected to operate.
As to the first prerequisite of common carrier status, the regulations as originally promulgated by the 1972 Order establish a policy of "first-come, nondiscriminatory access."
It is true that this general commandment of indifferent service is modified by the Commission's acceptance, or even requirement, of certain types of priority treatment. The regulations themselves state that "[o]n at least one of the leased channels, priority shall be given part-time users. . . ."
The Commission has also stated its tolerance, for the time being at least, of preferential rate structures whereby leased access channelling is made available to non-commercial users at reduced cost.
With regard to the second common carrier prerequisite, the user's design and choosing of the intelligence to be transmitted, we have no difficulty determining from the very nature of the technology that in many if not most instances this requirement will be satisfied. Although the regulations require only a non-voice return capability,
We therefore conclude that most, if not all, of the uses to which the two-way, non-video cable capability is likely to be put fall within the term "carrier" as used in 47 U.S.C. § 152(b).
B. Has the Commission attempted to pre-empt state and local regulation of intrastate activities?
It is uncontroverted that the two way communications at issue will be intrastate insofar as they are carried on by a cable network entirely encompassed within a single state.
We therefore conclude that, for purposes of determining § 152(b) applicability, the intrastate requirement demands nothing more than a single determination of which cable networks are entirely within a single state's boundaries. We leave that to be resolved by the Commission and appropriate state authorities, by their respective assertions of jurisdiction.
C. Does 47 U.S.C. § 301 provide any basis for Commission jurisdiction over two-way, non-video cable transmissions?
The § 152(b) jurisdictional bar contains an exception proviso for any powers granted the Commission under § 301. No allegation has been made that this proviso is applicable to this case, and we find nothing in § 301 to cast doubt on the apparent consensus of counsel.
It appears to us that the substantial bulk of the two-way, non-video communications expected to be carried over leased access bandwidth will be both intrastate and common carrier in nature. The plain meaning of § 152(b) therefore seems to bar the Commission's assertion of a general preemptive power over all uses of access bandwidth. Whether the context of the Communications Act taken as a whole calls for a different result will be considered in the next section.
II. Alleged Statutory Justification for the Commission's Pre-emption Action.
The Commission seeks to justify its pre-emptive action as within a general grant of jurisdiction over cable TV, which, it states,
Commission jurisdiction over cable television was first reviewed by the Supreme Court in 1968 in United States v. Southwestern Cable Company.
On this basis the Court upheld the Commission's order, not directly under either the common carrier title
In 1972 the Southwestern reasoning was invoked again to affirm a Commission order,
The deciding vote in Midwest was cast by Chief Justice Burger, who relied primarily on the pervasive and open-ended jurisdiction that Congress had conferred upon the FCC. The courts, he said, had consistently construed the Act as granting broad enough powers "to meet the expansion and development of broadcasting. . . . CATV is dependent totally on broadcast signals and is a significant link in the [broadcast] system as a whole and therefore must be seen as within the jurisdiction of the Act."
A. Does the Communications Act as construed by the Supreme Court establish a blanket jurisdiction over all operations of cable systems?
We are not persuaded that either the statute on its face or the construction which it has been given in Southwestern and Midwest supports the Commission's argument that it has a blanket jurisdiction over all activities which cable systems may carry on. The language of § 152(a) is quite general and is not unambiguously jurisdictional in character.
Moreover, the Court's reasoning in both Southwestern and Midwest compels the conclusion that the cable jurisdiction, which they have located primarily in § 152(a), is really incidental to, and contingent upon, specifically delegated powers under the Act. The statute's introductory section is made a locus for powers which must of necessity be recognized if the purposes set out in the broadcasting sections are to receive their fullest realization. The Court thus was not recognizing any sweeping authority over the entity as a whole, but was commanding that each and every assertion of jurisdiction over cable television must be independently justified as reasonably ancillary to the Commission's power over broadcasting.
In Southwestern, the Court stated explicitly that its holding was limited to such reasonably ancillary activities, and expressly declined to comment on "the Commission's authority, if any, to regulate CATV
Apart from the language of the Supreme Court, we also find little basis in reason to support the view that cable must be treated as an "organic whole,"
In terms of policy, the Commission argues that indivisible regulation of cable television under its own comprehensive scheme is essential, if the "goal of a nationwide broadband communications grid" is to be achieved.
The Commission's policy based arguments for allowing it to assert complete jurisdiction over cable seem to fall into two categories. First, the Commission argues from a sort of housekeeping perspective, that any other result would be administratively unseemly.
Yet the Commission offers no reason, save its own bruised sense of symmetry, in support of this conclusion. The allocation of regulatory duties along the lines of inter-versus intrastate activities is a problem with which the Commission and state agencies must frequently deal, and have dealt successfully. Nor can the involvement of cable operators with more than one regulatory body logically be the cause of the alleged unworkability, for the Commission itself has recognized the role of local authorities in granting franchises and rights of way for the cables used.
The Commission raises a second type of argument on behalf of treating cable as an organic whole. It asserts, implicitly at least, that the two-way use of leased access channelling is likely, at some future time, to provide vital revenues for the financing of other, less profitable cable activities.
The difficulty with this argument is its highly speculative character. The Commission has itself conceded that "at present there are few, if any, proven, economically viable uses for two-way cable communications."
Our examination of the statute, the Supreme Court cases, and the Commission's arguments based on policy thus leads us to the view that the Communications Act does not confer any blanket Commission jurisdiction over cable. We will now proceed to inquire whether the particular jurisdiction asserted here over two-way, non-video communications can be justified as reasonably ancillary to broadcasting.
B. Is the Commission's assertion of pre-emption jurisdiction over two-way communications via cable justifiable under the "reasonably ancillary to broadcasting" standard of Southwestern and Midwest?
The Supreme Court has upheld two separate assertions of Commission jurisdiction over cable as reasonably ancillary to the Commission's powers over broadcasting. Beginning with the Court's elucidation of that "ancillary to broadcasting" rationale, we will now inquire whether the pre-emption action before us can be upheld as fitting within it. In so doing, it will be necessary to assess and compare the relationship between controverted Commission action and its conceded power over broadcasting, in our case and in the cases decided by the Supreme Court.
At the outset, it seems safe to say that Midwest rather than Southwestern presents the farthest outpost of Commission power, and thus should serve as our standard of comparison. Whereas Southwestern involved a regulation of cable whose direct purpose was the protection of broadcasting operations,
Midwest, without question, takes a giant step beyond Southwestern, in relaxing the nature of the ancillariness necessary to support an assertion of Commission power over cable. As we read the case, it turns upon a determination that "ancillary to broadcasting" means not only "for the protection of broadcasting," but also embodies any regulation of cable which in its own right serves the purposes pursued by broadcast regulation.
We have great difficulty finding any such broadcast purpose which is served by the Commission's attempted pre-emption of state and local regulation of two-way cable operations. Unlike the origination requirement of Midwest, this pre-emption does not directly affect transmission in any medium which is of direct concern under the Commission's power over broadcasting. Whereas origination cablecasting will increase the mix of available viewing choices and thus serve an important general purpose of broadcast regulation, the private nature of the non-video, return communications involved here means that no general broadcast purpose is directly implicated. It is therefore difficult to see how any action which the Commission might take concerning two-way cable communications could have as its primary impact the furtherance of any broadcast purpose.
It is only slightly less difficult to locate secondary, indirect effects of the regulation which might arguably further a broadcast purpose. The only one of which we are aware involves the possibility, discussed in Part A, supra, that two-way cable communications are destined for great financial success, and that any state regulation might reduce the flow of the resulting profits into the expansion of cable operations. We do not deny that this is a possibility, though, as previously noted, its likelihood is questionable. Even were we to concede it as a certainty, however, the order's indirect way of serving the broadcast purpose would, by itself, require some extension of Midwest to encompass our case.
Under the facts of this case, we are spared from the difficult decision whether a cable regulation indirectly serving a broadcast regulatory purpose should be upheld on the same theory that one directly serving such a purpose was upheld in Midwest. Apart from the factual problem of uncertainty as to the ultimate profitability of two-way cable communications, two factors separate our situation from the ideal test case on the issue of direct versus indirect advancement of broadcast purposes.
First, in Midwest the locally originated programs which were the subject of the regulation were to compete with the offerings of the national networks and local broadcast stations, which were and are being regulated by the FCC. It was logical for the FCC to regulate the new business, i.e., the programming to be originated by cable companies, because that business was directly competitive with services which it already regulated.
In the present case, by contrast, the primary competition from the two-way utilization of cable will come from existing telephone facilities which, on an intrastate level, now operate under the regulation of state and local commissions.
The concern of the FCC over its own wisdom in "establishing reasonable rates for services that are untested, unproven . . ." (quoted by Judge Wright at p. ___ of 174 U.S.App.D.C., at p. 607 of 533 F.2d) may be quite justified. State regulatory agencies, engaged for years in regulating the existing competition to the proposed cable channels, are doubtless better fitted to fix those rates — and in our
Second, as set out in Section I above, the Commission's attempted pre-emption appears to run counter to the plain meaning of the 47 U.S.C. § 152(b) limitation on Commission jurisdiction. We do not categorically deny that such an apparent bar might, in some instances, properly yield to a clear, conflicting statutory delegation. But no such clear, conflicting delegation of power exists in this case. We believe that the pre-emption of regulatory power of two-way, non-video cable communications is not within the "ancillary to broadcasting" standard as developed in Midwest, even absent the apparent applicability of the § 152(b) jurisdictional bar. We therefore find no clear delegation of Commission authority as might conflict with, and possibly override, the commandment of § 152(b).
The Commission's action before us does not come within its powers reasonably ancillary to broadcasting, which received their greatest judicial recognition in United States v. Midwest Video Corporation. We rest this conclusion (1) upon the absence of factual evidence that a broadcast purpose even indirectly will be served, (2) upon the fact that the controverted activities will be carried on in a competitive common carrier market, and (3) upon the § 152(b) bar to Commission jurisdiction over the intrastate common carrier activities. We note, however, that the binding effect of § 152(b) is substantially intertwined with our finding that, apart from that section, there is no unambiguous support, in either the statutory language or the Supreme Court's opinions, for the action which the Commission has taken.
As to any projected two-way communications not partaking of the common carrier character, we nonetheless hold, based upon the uncertainty and indirectness of the broadcast purpose allegedly served, that they are not within the Commission's jurisdiction ancillary to broadcasting.
III. Miscellaneous Arguments in Support of the Commission
Two arguments are raised on behalf of the Commission's position, which are not dealt with in the discussion above.
A. Is the challenged action within the broad discretion traditionally allowed to the FCC, especially in the construction of its own statute and in the area of experimentation?
The Commission relies to a great degree upon the substantial measure of discretion which it has traditionally been accorded under its broadly worded statute.
However, the allowance of "wide latitude"
In pursuit of this point, the Commission advances two areas of discretion as dispositive of this case. First it asserts that its pre-emption should be affirmed because an agency, and perhaps especially the FCC,
Set out above are our reasons for concluding that the action presently under attack does not fall within Midwest's farthest outpost of Commission authority over cable, even absent the applicability of 47 U.S.C. § 152(b). However one may view our limited conclusion on that point, though, it appears clear beyond doubt that the plain meaning of § 152(b) takes the case outside of any area of deference to agency interpretation which might properly be recognized.
This court has previously held that the term "common carrier" has a coherent legal meaning which courts can grasp and apply in reviewing the Commission construction of its own Act.
Secondly, the Commission argues that the challenged pre-emption falls within its especially broad discretion to encourage new and innovative technological developments, especially during an interim period.
There is precedent for the proposition that the Commission has broad experimental powers.
However, we find no basis whatever for the view that the statutory experimentation power can ever serve as an independent statutory foundation for bringing activities within FCC jurisdiction. The authority to experiment broadens the Commission's freedom to promulgate innovative and perhaps speculative regulations of activities over which it otherwise exercises regulatory jurisdiction. It does not, however, give the Commission power to regulate activities experimentally, where the statute, as construed broadly, does not confer a power to regulate in a non-experimental way.
It follows, thus, that the Commission's alleged experimental purpose in pre-empting state agency action can not save this regulation, where, as we have held, the Commission lacks general jurisdiction over the two-way cable communications involved. It matters not whether we or the FCC believe that one national laboratory would be better than 50 separate schemes of regulation. Congress has dictated that the particular type of activities at issue are to be regulated as the states see fit.
B. What is the impact of American Civil Liberties Union v. FCC?
In American Civil Liberties Union v. FCC,
The case presents an attempt by the ACLU to compel affirmative regulation of all access channelling by the FCC under its Title II common carrier provisions. Petitioners saw those provisions as a way of securing protection against discrimination and unreasonable rates and profits, and of guaranteeing access "upon reasonable request therefor."
The opinion exhibits no awareness of the peculiar breed of two-way leased access cable communication which is before this court. While it states in general terms that the Commission's general approach to access channelling is affirmed, there is no indication that the court at any time considered the nature of two-way, non-video leased access communications as distinguished from public, education, and governmental access programming. Nor is there any reason why it should have. Petitioner's concern was with common carrier regulation of conventional transmission access programming which was, and continues to be, the vastly dominant use of access channelling. On this basis, we see no reason to view anything in the opinion as a considered analysis of the type of communications before us.
More fundamentally, even if we regarded the court as embodying within its holding the two-way use of access channelling, its decision would be inapposite to our case. The primary issue there posed was the presence or absence of a statutory duty to implement the affirmative regulations set out in Title II.
The Commission's asserted pre-emption of state and local regulation of two-way,
LUMBARD, Circuit Judge (concurring):
I concur in the conclusion that regulations governing cable system leased access channels that provide two-way, point-to-point, non-video communications are not "reasonably ancillary to the effective . . regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001, 1016 (1968). Accordingly, I would vacate the order of the F.C.C. of December 5, 1974, which preempts regulation of such leased access channels as set forth in the F.C.C.'s Clarification adopted April 15, 1974. As that determination is dispositive of the question of F.C.C. jurisdiction, I think it is unnecessary to reach the question of whether the F.C.C. is deprived of jurisdiction under 47 U.S.C. § 152(b) because these activities are performed by common carriers or are solely intrastate in character.
This circuit has previously recognized that cable television systems, which most certainly were not considered during the development of the Communications Act of 1934, are not "readily encompassed within the clear language of" the provisions of that Act which govern broadcasters or carriers. General Telephone Co. of California v. F. C. C., 134 U.S.App.D.C. 116, 413 F.2d 390, 405, cert. denied, 396 U.S. 888, 90 S.Ct. 173, 24 L.Ed.2d 163 (1969). See Philadelphia Television Broadcasting Co. v. F. C. C., 123 U.S.App.D.C. 298, 359 F.2d 282 (1966). The difficulty of trying to fit the activities of cable system operators, including those activities now in dispute, into niches for which they were not designed is borne out by the tentative nature of Judge Wilkey's conclusion that "most, if not all, of the uses to which the two-way, non-video cable capability is likely to be put fall within the term carrier . . . ."
Additional difficulties undermine my brother Wilkey's conclusion that operators who perform these activities are carriers. The activities in dispute are said to satisfy the requirement that carriers serve all persons indifferently because the F.C.C. has ordered that leased access channels be made available on a nondiscriminatory basis. If in fact these are carrier activities, however, then the F.C.C. had no jurisdiction to promulgate that order in the first place, and its dicta cannot be used in support of the proposition that cable operators who perform these functions act as common carriers.
The Supreme Court's decision to define F.C.C. jurisdiction over cable operators in terms of its jurisdiction over television broadcasting emanated from a finding that the two operations would otherwise conflict rather than from a determination that cable television fit neatly within the Communications Act provisions governing broadcasters. The Court implied that cable television had "characteristics both of broadcasting and of common carriers, but with all of the characteristics of neither . . . ." 392 U.S. at 172-78, 88 S.Ct. at 2002, 20 L.Ed.2d at 1013. Thus, I see no need to attempt to classify even these specific activities as clearly within or without the common carrier exemption from F.C.C. jurisdiction.
Nor is a determination that the activities in dispute are solely intrastate in nature conclusive on the question of the F.C.C.'s preemptive power. It seems clear that those cable television activities that are ancillary to television broadcasting, which is undoubtedly interstate in character, become, by that fact alone, subject to F.C.C. jurisdiction despite the possibility that all acts performed by the cable operators occur within the confines of a single state. Cf.
Thus it seems clear to me that presently the only relevant standard for determining whether the F.C.C. may properly exercise jurisdiction over an activity performed by a cable television operator is the standard set forth in Southwestern Cable of whether it is "ancillary to the regulation of television broadcasting." See United States v. Midwest Video Corp., 406 U.S. 649, 662-63, 92 S.Ct. 1860, 1867, 32 L.Ed.2d 390, 400 (1972). While the F.C.C. might be empowered to issue the challenged regulations if the broader standards for exercise of F.C.C. jurisdiction suggested by Judge Wright were the applicable criteria, I believe the Supreme Court has limited our scope of review to application of the "ancillary to television broadcasting" standard. I do not believe that any of the nexi suggested by the F.C.C. to exist between two-way point-to-point, non-video communications and traditional concepts of television broadcasting satisfy this criterion.
The F.C.C. first argues that cable television is an "organic whole" and thus implies that if one service performed by cable operators is subject to F.C.C. jurisdiction under the "ancillary to television broadcasting" standard, then all cable services are so subject. I think that Judge Wilkey has adequately demonstrated that there is neither logical nor statutory support for this proposition and that the Supreme Court opinions on the subject strongly suggest that there are limits to F.C.C. jurisdiction over cable operators. I would only add that the F.C.C.'s contention that it should have plenary power over cable operators performing the activities in dispute for fear that divided regulation would be administratively infeasible is belied by current practice. Services of exactly the same nature as several of the proposed two-way, point-to-point, non-video cable communications are presently performed by telephone companies which are subject to state and local regulation. Yet the F.C.C. has introduced no evidence of administrative confusion as a result of diverse regulation by these entities.
Second, the F.C.C. argues that it desires to preempt the field, and thereby prevent any regulation of these services, in order to encourage experimentation with cable facilities. The laudatory desire to encourage experimentation, however, does not give the F.C.C. jurisdiction in the absence of a showing that the results of the experiment would be ancillary to broadcasting. I agree with Judge Wilkey that the nature of these services is such that its impact on broadcasting will be minimal. Moreover, many of these "new" services are, as noted above, presently supplied by telephone companies that are subject to state regulation. There is no reason to believe that states, which have allowed these services to develop in this context, would be less responsive to experimentation in the area of cable television.
Finally, the F.C.C. and those intervening on its behalf attempt to demonstrate an economic link between two-way, point-to-point, non-video communications and broadcasting services. Intervenor Manhattan Cable Television
For these reasons I agree that the order should be vacated and set aside.
J. SKELLY WRIGHT, Circuit Judge (dissenting):
Congress created the Federal Communications Commission to protect the public interest in the development of an electronic communications system. Since "Congress was acting in a field of regulation which was both new and dynamic[,]" it gave the Commission "not niggardly but expansive powers[,]" National Broadcasting Co. v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010, 87 L.Ed. 1344, 1364 (1943), sufficient to respond to changes in technology in the absence of corresponding changes in the statutory framework. See, e. g., General Telephone Co. v. FCC, 134 U.S.App.D.C. 116, 124, 413 F.2d 390, 398, cert. denied, 396 U.S. 888, 90 S.Ct. 173, 24 L.Ed.2d 163 (1969). Although originally hesitant,
I cannot agree with Judges Lumbard and Wilkey that the Commission has exceeded its authority by asserting preemptive jurisdiction over the category of cable television activities petitioners artfully designate as "intrastate two-way point-to-point non-video communications services for hire." Accordingly, I respectfully dissent.
The present proceeding has its origin in a series of notices of proposed rule makings issued by the Commission from 1968 through 1970.
These regulations required, inter alia, that cable systems operating
In the Report and Order the Commission explained the rationale of the access rules:
36 FCC 2d at 189 (footnote omitted). Cable television was required to fulfill this public function in return for the Commission's permission to utilize broadcast signals:
Id. at 190. The Report and Order also explained the Commission's decision to limit state and local regulation of all access services, including those provided on leased channels:
Id. at 193 (emphasis added; footnote omitted). Petitioners did not seek reconsideration or judicial review of the Report and Order.
The Report and Order thus expressed three themes which have dominated the Commission's approach to access channel regulation: (1) the relationship between the benefits received by cable systems from their use of broadcast signals and the potential role of cable in the national communications network; (2) federal preemption of regulatory jurisdiction in order to ensure unhindered development of cable services; and (3) the tentative, experimental nature of the Commission's actions. In keeping with this recognition of the tentativeness of its regulatory program, the Commission also announced that it was establishing a Federal-State/Local Advisory Committee (FSLAC):
Id. at 210. After many months of study, including more than 250 hours of public meetings,
The Clarification began with a statement of the Commission's policy of frequently revising its rules to accommodate the rapid pace of change in the cable industry. See 46 FCC 2d at 176-177, JA 3-4. It also emphasized the broad purposes of the Commission's regulation of cable:
46 FCC 2d at 176, JA 3. In order to assure that the growth of cable would not be hindered by unnecessary rate regulation, the Commission reiterated that it had preempted that area:
46 FCC 2d at 185-186, JA 15 (emphasis added). See also 46 FCC 2d at 199-200, JA 30-31. The Commission also repeated its promise to monitor developments in the industry and to change its policies if appropriate. See, e. g., 46 FCC 2d at 186 & n.5, 200, JA 16 & n.5, 31.
Petitioners sought reconsideration of the Clarification,
The Commission denied reconsideration in Memorandum Opinion and Order (hereinafter Memorandum Opinion), 49 FCC 2d 1078, JA 60 (1974). After refuting the contention that prior to issuing the Clarification the Commission had not clearly indicated that nonfederal rate regulation of all leased channel services was preempted, the Memorandum Opinion noted that "objections relating to such a ruling are not timely. All parties had ample opportunity to comment on and object to our rules when they were adopted in February 1972. The particular parties did not do so." 49 FCC 2d at 1081, JA 64. Nevertheless, the Commission responded to the jurisdictional arguments.
The Memorandum Opinion rejected petitioners' attempt to isolate a carefully defined segment of cable services:
49 FCC 2d at 1082, JA 66. Cable services are indivisible because of the relationship among cable's use of broadcast signals, nonbroadcast cable services, and the role of
49 FCC 2d at 1082-1083, JA 66-68 (footnote omitted). The Commission also stated that Section 152(b) does not apply because cable systems are not "carriers." 49 FCC 2d at 1082, JA 65. Petitioners sought review in this court.
II. THE COMMISSION'S JURISDICTION UNDER SECTION 152(a)
A. The Appropriateness of Deference
Had the Commission chosen to do so, it could have dismissed petitioners' request for reconsideration as untimely. See 47 C.F.R. § 1.106 (1974); Valley Telecasting Co. v. FCC, 118 U.S.App.D.C. 410, 336 F.2d 914 (1964). Instead, the Commission decided to consider the merits of petitioners' position. That decision does not, however, render irrelevant the lengthy history which I have set forth in the preceding section. The intensity of our review should reflect our recognition that the order challenged here draws on a lengthy process of policy development by the Commission.
It is a "venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong * * *." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371, 384 (1969). The fact that the Commission's view of its authority was the product of "much study" gives added weight to this principle. See General Telephone Co. v. FCC, supra, 134 U.S.App.D.C. at 127, 413 F.2d at 401. Similarly, that the Commission reported its conclusions to Congress six months before issuing the Report and Order, and that Congress did not reject the Commission's broad assertion of power, should increase our hesitancy to reverse the Commission's construction of the Communications Act. See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 381, 89 S.Ct. 1794.
The history of the Memorandum Opinion should also affect our approach to review of the factual premises on which it rests.
In addition, our review should take cognizance of the Commission's statutorily imposed duty to experiment with new techniques of communication. See 47 U.S.C. §§ 218, 303(g) (1970). This authority has been consistently recognized by this court as a significant aspect of Congress' purpose in establishing the Commission. See, e.g., United Telegraph Workers v. FCC, 141 U.S.App.D.C. 190, 193-194, 436 F.2d 920, 923-924 (1970); Connecticut Committee Against Pay TV v. FCC, 112 U.S.App.D.C. 248, 250-251, 301 F.2d 835, 837-838, cert. denied, 371 U.S. 816, 83 S.Ct. 28, 9 L.Ed.2d 57 (1962). Since the decision to experiment must necessarily be based on a prediction, "the court's inquiry into the factual underpinnings of agency action authorizing a temporary program or giving it interim approval will appropriately be less searching tha[n] if [it] were faced with the institution of a permanent program." United Telegraph Workers v. FCC, supra, 141 U.S.App.D.C. at 196, 436 F.2d at 926. Thus, for example, we should not demand that the Commission prove that two-way communication will be an important source of revenue for cable systems before allowing it to undertake an experimental program based on that premise.
B. The Legal Standard for Determining Jurisdiction Under Section 152(a)
Section 152(a) provides in pertinent part:
Judge Wilkey labels this section "quite general and * * * not unambiguously jurisdictional in character." Wilkey op. at ___ of 174 U.S.App.D.C., at 612 of 533 F.2d. He concludes that the jurisdictional grant which the Supreme Court has discerned in Section 152(a) "is really incidental to, and contingent upon, specifically delegated powers under the Act." Id. Judge Lumbard concurs in this conclusion, and also agrees that the Commission's preemption of state regulation cannot be considered "reasonably ancillary" to the Commission's powers over broadcasting. I do not believe that either the language or the
In United States v. Southwestern Cable Co., supra, 392 U.S. at 167, 88 S.Ct. at 2000, 20 L.Ed.2d at 1010, the Supreme Court began its analysis by identifying the source and purpose of the Commission's power to regulate:
The Court explicitly rejected the contention, similar to Judge Wilkey's analysis, that Section 152(a) "does not independently confer regulatory authority upon the Commission, but instead merely prescribes the forms of communication to which the Act's other provisions may separately be made applicable." Id. at 171-172, 88 S.Ct. at 2002, 20 L.Ed.2d at 1013. The Court's language is instructive:
Id. at 172-173, 88 S.Ct. at 2002, 20 L.Ed.2d at 1013 (footnote omitted).
Only after reaching this conclusion did the Southwestern Cable Court note that "the Commission has reasonably concluded that regulatory authority over [cable] is imperative if it is to perform with appropriate effectiveness certain of its other responsibilities." Id. at 173, 88 S.Ct. at 2003, 20 L.Ed.2d at 1014 (emphasis added). Although the Court then limited its specific holding to the facts of the Southwestern Cable situation by emphasizing that it had recognized only "authority * * * reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," id. at 178, 88 S.Ct. at 2005, 20 L.Ed.2d at 1016, it said nothing to cast doubt on its earlier conclusion concerning Section 152(a). Moreover, the Court did not indicate that only the Commission's concern with broadcasting, among all of its "other responsibilities," could justify the exercise of Section 152(a) jurisdiction.
Southwestern Cable has been generally read as recognizing Section 152(a) as an independent basis for Commission jurisdiction over cable. See, e.g., General Telephone Co. v. United States, 449 F.2d 846, 853-854 (5th Cir. 1971); TV Pix, Inc. v. Taylor, 304 F.Supp. 459, 465 (D.Nev.1968) (three-judge court) (dictum), affirmed per curiam, 396 U.S. 556, 90 S.Ct. 749, 24 L.Ed.2d 746 (1970); Barnett, State, Federal, and Local Regulation of Cable Television: An Analysis of the New FCC Rules, 1971 Duke L. J. 1151, 1166-1167. More importantly, the Supreme Court plurality in United States v. Midwest Video Corp., supra, 406 U.S. at 660, 92 S.Ct. at 1867, 32 L.Ed.2d at 398, stated that in Southwestern Cable "[w]e also held that § 2(a) is itself a grant of regulatory power and not merely a prescription of the forms of communication to which the Act's other provisions governing common carriers and broadcasters apply."
The Midwest Video Court recognized that Southwestern Cable established a two-step analysis for reviewing an assertion of authority founded on Section 152(a). First, it is necessary to determine whether the subject matter over which the Commission claims authority is within the language of the statute. Second, the court must determine whether the assertion of authority is
Before beginning this analysis, however, it is important to note that the Midwest Video precedent is not as fragile as my brethren appear to believe. It is of course true that the Chief Justice, whose vote determined the outcome in Midwest Video, expressed his feeling that "the Commission's position strains the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts." Id. at 676, 92 S.Ct. at 1874, 32 L.Ed.2d at 407. Yet this expression of doubt was sandwiched among paragraphs explaining the need to allow the Commission "wide latitude" in the absence of congressional action to accommodate the terms of the Communications Act to new developments in the field of communications. Moreover, the decisive factor for the Chief Justice was that cable systems are "dependent totally on broadcast signals * * *." Id. at 675, 92 S.Ct. 1860. By "interrupt[ing] the signal and put[ting] it to their own use for profit, they take on burdens, one of which is regulation by the Commission." Id. at 676, 92 S.Ct. at 1874, 32 L.Ed.2d at 407. In our case, as in Midwest Video, the Commission's rules, and the preemptive assertion of jurisdiction which accompanies them, are considered "burdens" which the cable operators must accept in return for the benefit of being allowed to utilize broadcast signals. See, e.g., Memorandum Opinion, 49 FCC 2d at 1082-1083, JA 66.
Similarly, the position of the four dissenters in Midwest Video does not suggest that they would reject the Commission's position in this case. The central objection of the Midwest Video dissenters was that the Commission had exceeded its authority by promulgating program origination rules under which "a person may be compelled to enter the broadcasting or cablecasting field." 406 U.S. at 679, 92 S.Ct. at 1876, 32 L.Ed.2d at 409. Since the Commission was not authorized by any provision in its legislation to compel someone to become a broadcaster, upholding the rule would "make the Commission's authority over activities `ancillary' to its responsibilities greater than its authority over any broadcast licensee." Id. at 681, 92 S.Ct. at 1877, 32 L.Ed.2d at 410. This objection cannot be made against the preemptive regulation challenged here. The Commission is not seeking to impose on cable operators (or state regulatory commissions) a regime that would be beyond the Commission's authority to impose on broadcasters. See National Ass'n of Regulatory Utility Comm'rs v. FCC, 173 U.S.App.D.C. 413, 429, 525 F.2d 630, 646 (1976); cf. TV Pix, Inc. v. Taylor, supra, 304 F.Supp. at 465.
C. Application of the Jurisdictional Standard
1. The Section 152(a) Threshold: Applying the analysis developed in Southwestern Cable and refined in Midwest Video, the first question is whether the activities at issue here come within the scope of Section 152(a). Since "communication by wire" is clearly involved, the only question is whether the "interstate" criterion of Section 152(a) is satisfied. By limiting their challenge to "intrastate two-way point-to-point non-video communication services for hire," petitioners have attempted to avoid Section 152(a). Petitioners' effort might succeed if it were true that two-way, point-to-point nonvideo communication over cable networks located entirely in a single state, see Wilkey op. at ___ of 174 U.S.App.D.C., at
In the Report and Order the Commission stated that "leased channels will undoubtedly carry interconnected programming via satellite or interstate terrestrial facilities * * *." 36 FCC 2d at 193. Two-way capability over cable networks is expected to be used to link computers as instructional aids. Id. at 191. There is no reason why intrastate computer links established as part of such an endeavor might not be joined, through satellites or otherwise, with interstate links. Similarly, there is no apparent reason why the facilities used to link a citizen with his city council, see Wilkey op. at ___ of 174 U.S.App.D.C., at 611 of 533 F.2d, might not be combined with other facilities to link a citizen with his Congress or with multistate regional bodies. Thus the services over which petitioners assert exclusive jurisdiction fall within Midwest Video's observation that "[t]he capacity for interstate nonbroadcast programming may in itself be sufficient to bring cablecasts within the compass of § 2(a)." 406 U.S. at 662 n. 21, 92 S.Ct. at 1868, 32 L.Ed.2d at 400. The Midwest Video Court explained:
Id. at 662-663 n.21, 92 S.Ct. at 1868, 32 L.Ed.2d at 400 (emphasis added). I believe we should follow this suggestion.
In Midwest Video the Court found it unnecessary to determine whether the interstate potential sufficed to support Commission jurisdiction under Section 152(a) because a clearer basis for jurisdiction existed. Since the Court's language is directly applicable to this case, I quote it at length:
Id. at 663 n.21, 92 S.Ct. at 1868, 32 L.Ed.2d at 400. In Midwest Video this reasoning supported Section 152(a) jurisdiction over cable operators sufficient to require and regulate original cablecasts. In our case the use of broadcast signals is the basis for the Commission's requirement that leased channels be provided, and for the Commission's regulation of those channels. Here, too, the inter- and intrastate communications can take place over the same facilities and in response to the same regulation. I can only conclude that the jurisdiction found by the Midwest Video Court exists here as well.
Bearing in mind the properly limited nature of our review, I believe we must find that the preemption of state regulation challenged here is ancillary both to the Commission's broadcasting responsibilities under Title III of the Communications Act, 47 U.S.C. § 301 et seq. (1970), and to its general statutory purposes as set forth in Section 1 of the Act, 47 U.S.C. § 151 (1970). As I indicated in Section C-1 supra, many of the expected, or at least potential, uses of the two-way, point-to-point, nonvideo capability of cable systems will involve distribution of signals which have been or will be broadcast interstate. Moreover, other uses, such as adding a feedback mechanism to locally originated or interstate cablecasts, are directly related to making television a more effective instrument of communication. For example, the ability of a citizen viewing a city council meeting to vote in an instantaneous referendum would transform television viewing from a passive to a participatory experience. This transformation would not only strengthen the democratic system, but would also "augment the public's choice of programs and types of services. . . ." United States v. Midwest Video Corp., supra, 406 U.S. at 668, 92 S.Ct. at 1870, 32 L.Ed.2d at 403, quoting First Report and Order, 20 FCC 2d 201, 202 (1969) (emphasis added). Similarly, use of the return transmission capacity by "users to signal their wishes back up the cable and thus select particular programming or other information * * *," Cabinet Committee on Cable Communications, Report to the President 9-10 (1974), is obviously related to improving the service offered to those who view cable television. Midwest Video leaves no doubt that regulations designed to encourage the creation of such services
Judges Lumbard and Wilkey read part of the Memorandum Opinion as basing jurisdiction on the conclusion that nonvideo services will provide an important source of
In addition to being "reasonably ancillary" to broadcasting, the Commission's decision is "reasonably ancillary" to its responsibilities under Section 151, and should be sustained on that basis as well. Section 151 states that the Commission is established
While the section does not grant the Commission any power, it does state objectives for the exercise of the jurisdiction granted by Section 152(a). United States v. Midwest Video Corp., supra, 406 U.S. at 669 n.28, 92 S.Ct. 1860. See also GTE Service Corp. v. FCC, supra, 474 F.2d at 730; TV Pix, Inc. v. Taylor, supra, 304 F.Supp. at 465. Furtherance of the objectives established by this section was one of the primary reasons the Commission gave for promulgating the challenged regulations. See generally Part I supra. My earlier discussion of some of the potential uses of cable's nonvideo and two-way capacities should suffice to demonstrate the relationship between encouraging unfettered growth of these services and provision of "a rapid, efficient, Nation-wide, and world-wide wire and radio communication service * *." Thus we must hold that the Commission has jurisdiction to issue the preemptive regulations because it "has reasonably concluded that regulatory authority over [cable] is imperative if it is to perform with appropriate effectiveness certain of its other responsibilities" set forth in Section 151. See page ___ of 174 U.S.App.D.C., page 629 of 533 F.2d supra; cf. General Telephone Co. v. United States, supra, 449 F.2d at 854-855.
III. THE IMPACT OF SECTION 152(b)
Section 2(b) of the Communications Act, 47 U.S.C. § 152(b), denies the Commission jurisdiction over "charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier * * *." Petitioners and Judge
I agree with Judge Lumbard's trenchant criticism of Judge Wilkey's analysis, and will add but a few words to explain my own position. I believe my discussion of the Commission's jurisdiction under Section 152(a) is largely dispositive of the contention that Section 152(b) governs this case.
In addition, I note that by its own terms Section 152(b) appears not to govern this case. That section refers only to the intrastate services of "any carrier." The statute defines a "carrier" as
47 U.S.C. § 153(h) (1970) (emphasis added). This definition has two elements: (a) common carriage (b) in interstate or foreign communication. Accepting arguendo Judge Wilkey's conclusion that the first aspect of the definition is satisfied, I nevertheless conclude that cable operators are not "carriers" within the meaning of Section 153(h) because the second part of the definition is not met.
This restrictive reading of Section 152(b) is supported by the legislative history of that section. The history shows that the section had the limited purpose of assuring that the new federal commission, with its "expansive powers," would not intrude on the existing regulatory authority of the state commissions over primarily intrastate telephone companies and services.
IV. THE ADEQUACY OF THE COMMISSION'S FACTUAL CONCLUSIONS
In Midwest Video the Supreme Court noted that "[i]t was, of course, beyond the competence of the Court of Appeals itself to assess the relative risks and benefits of cablecasting." 406 U.S. at 674, 92 S.Ct. at 1874, 32 L.Ed.2d at 406. Based on its finding that the Commission had carefully considered the nature of the burden imposed on cable systems by the program origination requirement, the Court concluded that the Commission's action was supported by substantial evidence that the rule would serve the public interest. The appellate court's contrary holding was therefore reversed. See id. at 671-675, 92 S.Ct. 1860. Midwest Video, of course, involved a timely challenge to the program origination rule. The manner in which the Commission's preemptive regulations have been brought before us requires an even more deferential review of the basis for the Commission's actions. See Part II-A supra.
Judges Lumbard and Wilkey appear to reject three of the Commission's factual conclusions. They conclude that there is no basis for the Commission's beliefs that (1) dual regulation of leased access channels would be confusing or burdensome, Lumbard op. at ___ of 174 U.S.App.D.C., at 622 of 533 F.2d, Wilkey op. at ___ of 174 U.S.App.D.C., at 614 of 533 F.2d; (2) state and local rate regulation would impede the growth of cable services, Lumbard op. at ___ of 174 U.S.App.D.C., at 622-623 of 533 F.2d; and (3) two-way nonvideo communications services will provide financial support for other cable activities, Lumbard op. at ___ of 174 U.S.App.D.C., at 622-623 of 533 F.2d, Wilkey op. at ___ of 174 U.S.App.D.C., at 614 of 533 F.2d. I find my colleagues' attacks on each of these conclusions unconvincing.
Both of my colleagues argue that the Commission's fear of detrimental impacts arising from confusion or additional paperwork attendant on dual regulation of leased access channels is belied by the well-established division of regulatory authority over telephone companies and other common carriers. This argument neglects the fact that cable, unlike the telephone companies, is an infant industry struggling to make itself into a major element of the nation's communications system. Moreover, this court has no basis for concluding that the technology and practices of the cable industry allow as clear a division between inter- and intrastate activities as is possible in other industries regulated by both the Commission and local regulatory bodies. Finally, I note that the Commission has recently reviewed the problems attendant to "duplicative and excessive over-regulation of cable television." Report and Order Terminating Proceeding, Docket No. 20272, 40 Fed.Reg. 34608 (1975). Its finding in that proceeding is consistent with its position here:
Id. at 34609.
The burden of dual regulation itself refutes Judge Lumbard's suggestion that state and local regulation might be helpful
Finally, we have no basis for concluding that the Commission could not rationally find that nonvideo services will provide funds to support the growth of cable systems into a nationwide communications network. Manhattan Cable Television, Inc. intervened in this case for the express purpose of urging on us the importance of these services to its survival:
Brief for intervenor MCTV at 3-4. Moreover, the fact that the Commission felt it necessary to require new cable systems to be built with minimum channel capacities and technical two-way capabilities sufficient to provide the type of services involved in this case does not demonstrate that those services will not be profitable. The Commission explained that its reason for imposing these requirements was to avoid the added costs resulting from changing already constructed systems. See Report and Order, supra, 36 FCC 2d at 190, 192. This effort to ensure that the planning horizon of cable enterpreneurs will not be shorter than is socially desirable carries no implication that the required services
In the absence of congressional action to reformulate the Communications Act to reflect the technological developments of the last 40 years, the Federal Communications Commission has properly undertaken the task of protecting the national interest in new forms of electronic communications. Recognizing that Congress intended the Commission to assume such a protean role, the courts have refused to treat the jurisdictional sections of the Act as a procrustean limitation on the Commission's ability to serve the public interest. Today's decision, by insisting on an overly narrow interpretation of prior case law and by failing to recognize the appropriateness of unusually restricted review, in my judgment, is an unfortunate aberration.
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