MIDWEST VIDEO CORP. v. F. C. C.

MARKEY, Chief Judge.

Petitioners, Midwest Video Corporation (Midwest) and the American Civil Liberties Union (ACLU), seek review of the Federal Communications Commission's (Commission's) Report and Order in Docket No. 20508, 59 F.C.C.2d 294 (released May 13, 1976), reconsideration denied, 62 F.C.C.2d 399 (released December 21, 1976) (1976 Report)1 imposing mandatory access and channel capacity requirements upon certain cable television systems.2

Midwest challenges the regulations as (1) inadequately supported by the record, (2) beyond the jurisdiction of the Commission, (3) violative of the free speech clause of the First Amendment, and (4) violative of the due process clause of the Fifth Amendment.

ACLU does not challenge the Commission's jurisdiction to issue the 1976 Report regulations, but objects to the softening modifications made to the 1972 Cable Report access rules,3 alleging that the modifications (a) lack rational basis in their failure to consider interests of access program producers, (b) violate the Commission's mandate to regulate cable television as a common carrier, and (c) do not fully achieve general First Amendment goals.4

We grant the petition for review and set aside the order because it exceeds the jurisdiction of the Commission.

Background

As the cable television industry sought to develop over the past twenty-five years, the Commission's effort to regulate it has led to numerous Commission proceedings, voluminous litigation, and substantial literature.5

A cable system is composed of an antenna, to pick up local and distant broadcast signals, and cables for transmitting those signals to the home television sets of the system's paying subscribers. Some systems have employed the services of microwave companies for long distances between their antennae. The cable system may also transmit its own programs, i. e., "cablecast," through its cables to its subscribers. For technical reasons, most cable systems began with 12 channels.6

Having decided to preserve the "national television service" as it existed in 1952, Sixth Report and Order on Rules Governing Television Broadcast Stations, 17 Fed.Reg. 3905 (1952), the Commission initially ignored cable television, considering it no threat to broadcasting or to its regulatory domain. On receipt of broadcaster complaints in 1958, the Commission ruled that cable systems were not common carriers and refused to regulate them. Frontier Broadcasting Co., 24 F.C.C. 251, 253-54 (1968), aff'd, Report and Order on Inquiry Into the Impact of Community Antenna Systems, Television Translators, Television "Satellite" Stations, and Television "Repeaters" on the Orderly Development of Television Broadcasting, 26 F.C.C. 403, 441 (1959). The Commission's position that cable systems were not engaged in common carrier operations was upheld in WSTV, Inc., 23 Rad.Reg. ¶ 184 (1962) and in Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 300, 359 F.2d 282, 284 (1966). In all this, the Commission decided that it had no jurisdiction over cable television as common carriers under Title II of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq. (1970) (Act), or as broadcasters under Title III of the Act, and that it had no plenary power to regulate an industry just because that industry may have an impact on broadcasting, over which it did have jurisdiction.7

Becoming persuaded, and announcing with admirable candor, that cable systems might represent a competitive threat to its regulatees in television broadcasting, the Commission decided to assert jurisdiction.8 The Commission's approach to Congress for appropriate statutory authority was frustrated. To date, the Congress has refrained from exercising its legislative authority to provide that the Commission shall or shall not regulate cable systems, and, if they shall, in what manner and to what purpose and extent. The subject of cable regulations has thus been left substantially entirely to the Commission and the Courts.9

Proceeding on its own, the Commission has attempted not just to keep pace, but to anticipate the course of communications advances, facing the virtually impossible task of outrunning our modern technological juggernaut. Beginning with indirect regulation through its jurisdiction over microwave companies used by some cable systems, and exhibiting an apparent hostility toward letting cable grow as its own ingenuity and consumer acceptance may have dictated, the Commission imposed an extended "freeze" on cable's growth, see Wentronics, Inc. v. FCC, 118 U.S.App.D.C. 36, 331 F.2d 782 (1964).

The Commission has since attempted to frame a place for cable television while preserving broadcast television intact. The effort has resulted in the establishment of a Cable Television Bureau under the Commission, and 60 pages of cable regulations at 47 C.F.R. §§ 76.1-78.115 (1976).10 As a substitute for the license it is statutorily empowered to grant or refuse to broadcasters, the Commission issues a "Certificate of Compliance," for cable operators. 47 C.F.R. § 76.11. It sets for state and local franchising authorities the conditions they may impose on cable enterprises seeking a franchise to string cable underground or on poles. 47 C.F.R. § 76.31. It requires cable operators to submit forms and reports. 47 C.F.R. §§ 76.401-411.

Much of the Commission's cable-regulating has involved the planting of new and dramatic seeds of regulation, based on soaring, euphoric predictions (some from cable owners) of great things to come from cable television, seeds which had to be plowed under, when germination failed in the bright sunlight of commercial, economic, and technological reality.11

The Commission's jurisdiction over cable retransmission of distant (Los Angeles) broadcast television signals into a local (San Diego) broadcast station's "contour" was upheld as "reasonably ancillary" to its regulatory responsibilities for broadcast television in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). In the following year, the Commission adopted a "mandatory origination" rule, requiring cable systems with over 3499 subscribers to originate some programs of their own. First Report and Order in Docket No. 18397, 20 F.C.C. 201, 202-04 (1969). This court set that rule aside as beyond the Commission's jurisdiction. Midwest Video Corp. v. United States, 441 F.2d 1322 (8th Cir. 1971). In a split decision, the Supreme Court reversed, sustaining the mandatory origination rule as also "reasonably ancillary" to the Commission's responsibilities for broadcast television. United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972).12

Having carried the fight to victory in the Supreme Court, the Commission never enforced its mandatory origination rule.13 Instead, it conducted new proceedings, leading to the 1972 Cable Report, imposing "mandatory access" rules, under which cable systems in the largest 100 markets, were required, inter alia, to build a 20-channel capacity, to reserve three "access" channels for free use by public, educational, and governmental bodies, and to reserve a fourth channel for leased access. 36 F.C.C.2d at 240-41. All access was to be on a first come, nondiscriminatory basis, with no control by cable operators over program content. A compliance deadline of March 31, 1977 was set.14

In 1974, the Commission formally rescinded the mandatory origination rule, 39 Fed.Reg. 43302, and simultaneously issued rules on equipment availability, Report and Order in Docket No. 19988, 49 F.C.C.2d 1090 (1974), requiring cable systems with over 3499 subscribers to purchase, and make available to the public, equipment for producing local programs and cable time for their presentation. Midwest petitioned this court for review but withdrew its petition as moot in view of the challenge here to the 1976 Report, which merged the equipment availability and mandatory access rules. Midwest Video Corp. v. FCC, No. 75-1671, dismissed on petitioner's motion (8th Cir. April 12, 1976).

In March, 1974, the Commission appointed task forces to investigate the effect of the 1972 Cable Report rules. In responding to the task forces' report, the Commission invited comment on postponement of the March 31, 1977 deadline, Notice of Proposed Rulemaking in Docket No. 20363, FCC 75-211, 51 F.C.C.2d 519 (Released Feb. 26, 1975), and acknowledged concerns of various parties that: (1) industry revenues were insufficient to create new plants, distribution networks, amplifiers, converters, and modulators; (2) more time was needed to build revenue; (3) the poor economy and large debt of most cable systems meant they were unable to borrow for non-revenue producing activities; and (4) the Commission was unreasonable in expecting financial interests to provide capital while it required franchise authorities to enforce access and equipment rules, a process entailing the cable system's very authority to operate. The Commission received estimates that the cost of rebuilding to meet the 1972 rules was between $133 million and $430 million.

In its Notice of Proposed Rulemaking in Docket No. 20508, 53 F.C.C.2d 782, 784 (Released June 27, 1975), the Commission added to deadline postponement consideration of alternative methods by which "we might reaffirm our commitment to access cablecasting while recognizing the economic realities of today's marketplace." It noted the substantial cost of technological changes required by its 1972 access rules and great variances in the burden on different cable systems.

In its Notice in Docket No. 20508, supra, the Commission rejected all suggestions that it require construction of channel capacity and provision of access only upon indication of community demand for such services. The suggesters felt that in many communities the channels and equipment would go unused, yet the cost would be borne by cable consumers ("subscribers") totally uninterested in viewing access programs. The Commission said, "[W]hile we may consider this approach at some point in the future, we do not believe for the following reasons that the general adoption of an approach strictly tied to demand would at this time be wise."15 The Commission listed ten "reasons": (1) cable television is new and evolving; (2) availability16 of cable channels for dissemination of information is even newer; (3) demand for access services is a function of community awareness of their existence; (4) awareness and full utilization of cable's potential requires time; (5) some older systems have provided minimal access on a voluntary basis or no access; (6) in those communities awareness has not had opportunity or time to develop; (7) if its requirements resulted in blank channels, it believed that would shorten the time to realize the full potential for access services, because blank channels are visible and continuing inducements to be filled; (8) it considered that true for the channel user and the system operator; (9) if it required the system operator to provide access channels, he could be expected to encourage their use; (10) if it now altered its rules to reflect existing demand for access services, it would raise a barrier to growth of that demand and a disincentive to new services "we expect of cable." 53 F.C.C.2d at 787, 788.

Though the Commission said "There is mounting evidence that access cablecasting in an increasing number of communities is beginning to fill that need," Commissioner Robinson stated, "If the Commission has such evidence they have kept it remarkably well hidden from me." 53 F.C.C.2d at 801.

Commissioner Quello suggested deference to local franchise authorities, who might require one access channel "upon demand and need therefore," and called on the Commission to obtain "practical, statistical data on current uses of cable facilities" and to project the future based "on statistical data rather than `blue sky' expectations as in the past," saying, "In short, I think the Commission has burdened the cable industry unnecessarily with requirements and restrictions which cannot be statistically or practically supported." 53 F.C.C.2d at 799.

On May 13, 1976, having invited and received comments, the Commission released its Report and Order in Docket 20508, the 1976 Report here under review.

The 1976 Report rescinded earlier requirements based on assumptions admittedly proven false, and made three major changes in the 1972 mandatory17 access rules. First, it applied them to all cable systems with over 3499 subscribers, eliminating the top 100 markets criteria. 59 F.C.C.2d at 303-06; 47 C.F.R. § 76.252-56 (1976). Second, it extended the March 31, 1977, deadline for compliance with the 20-channel construction requirement to June 21, 1986, for most, but not all, existing systems. 59 F.C.C.2d at 321-24; 47 C.F.R. § 76.252(b) (1976).18 Third, it required four access channels only of systems having sufficient capacity and demand for full time access, requiring other systems to conglomerate access on one or more channels. 59 F.C.C.2d at 314-16; 47 C.F.R. § 76.254 (1976).

Thus an evolutionary process has led to the Commission action under review, the 1976 Report, which provides:

Issue

The dispositive issue is whether the regulations promulgated in the 1976 Report exceed the Commission's jurisdiction.22

OPINION

I Jurisdiction

The mandatory access, channel capacity, and equipment regulations of the 1976 Report exceed the Commission's jurisdiction because: (1) the statute provides no jurisdiction; (2) the regulations are not "reasonably ancillary" to the Commission's responsibilities for regulation of broadcast television; (3) objectives do not confer jurisdiction; (4) the Commission's ends do not justify its means; (5) the means are forbidden within the Commission's statutory jurisdiction.

(1) The Statute and the Commission's Jurisdiction Over Cable Television

The Commission's charter, its basic grant of power to regulate, is the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq. (1970) (Act), in which Congress delegated regulatory authority over (1) common carriers of communications by wire or radio, Title II, 47 U.S.C. §§ 201-21 (1970), and (2) broadcasters using channels of radio transmission, Title III, 47 U.S.C. §§ 301-29 (1970). Because § 3(b) includes "transmission by radio of * * * pictures * * *," 47 U.S.C. § 153(b) (1970), the Act encompasses broadcast television. Cable systems, first developed in the 1950's, are neither common carriers nor broadcasters.23 Hence the Act contains no specific grant of authority over cable systems, and there can have been no Congressional intent regarding them.

Whether the Commission and the courts should relieve Congress of the need to revise statutes in the light of new technology, General Telephone Co. of Cal. v. FCC, 134 U.S.App.D.C. 116, 413 F.2d 390 (1969), cert. denied, 396 U.S. 888, 90 S.Ct. 173, 24 L.Ed.2d 163 (1969),24 neither the nonexistence of cable technology in 1934, nor Congressional abstention over the past quarter century, need be considered the sole reason for the present absence of specific, plenary statutory power to regulate the industry called "Cable Television." Neither the basic rationale for regulation of common carriers (to insure fair and equal access to the carrier's service) nor that for regulation of broadcast transmissions (to preclude bedlam on broadcast frequencies), is applicable to cable systems per se.

Congressional silence does not, however, end the inquiry in every case. Though a statutory void cannot itself create jurisdiction in an agency, and though neither agencies nor courts receive the legislative powers not exercised by the Congress, the rapid growth of communications technology requires a unified system of regulation, and sufficient flexibility and breadth of mandate to permit an agency, confronted with new technology not covered by statute but having serious impact on technology that is, to adopt such regulations as will enable the agency to protect the public interest.25

In GTE Service Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), the court held that statutory silence did not preclude regulation of the interaction of data processors and common carriers, while denying Commission authority to regulate data processors themselves. And there lies the rub. Regulation to protect the public's vested interest in an established service, against injury from interaction of new technology, is one thing. It is quite another when an agency steps beyond its authority. The former may well be in the public interest. The latter never is.26

Respecting the Commission's jurisdiction over cable systems, the Supreme Court has supplied a measure. Under that guidance, the statute is to be given a broad, not restrictive, interpretation. Further, because we are not super-Commissioners, our inexpert view of the wisdom of the regulations under review is not to be substituted for the experience and expertise of the Commission. To shy, however, on those grounds from determination of the legal question touching the Commission's jurisdiction, would be a denial of effective judicial review of regulatory actions "not in accordance with law," 5 U.S.C. § 706(2)(A) (1970), and an exercise in judicial abdication. The statute having provided no express basis for jurisdiction, we determine the jurisdictional issue in accord with the "reasonably ancillary" standard expressed in Southwestern, supra, and Midwest Video, supra.

(2) The "Reasonably Ancillary" Standard

Because the Supreme Court sustained its authority to promulgate the rules in Southwestern and Midwest Video, the Commission says those two cases establish a jurisdiction over cable systems so broad as to authorize the 1976 Report mandatory access, channel construction, and equipment availability regulations. We disagree.

The jurisdiction found in Southwestern was sufficient to encompass prohibition of importation by cable systems of distant broadcast signals into the top 100 markets without a Commission finding of consistency with the public interest. 392 U.S. at 166-67, 88 S.Ct. 1994.27 The Commission's concern was that availability of Los Angeles programs in San Diego would fragment the audience of the local conventional television station, risking loss of advertising revenues and curtailment or termination of the local station's service to the public. Petitioner argued that the Commission had no jurisdiction whatever over cable systems. Citing broad purposes in § 1 of Title I, 47 U.S.C. § 151, the Court described the Commission's authority over cable television as restricted to that "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." 392 U.S. at 178, 88 S.Ct. at 2005.

The rule at issue in Midwest Video, requiring cable systems to originate programs, was also held "reasonably ancillary" to the Commission's responsibilities for broadcast television. Noting that "§ 2(a) does not in and of itself prescribe any objectives for which the Commission's regulatory power over CATV [cable television] might properly be exercised," 406 U.S. at 661, 92 S.Ct. at 1867, the plurality found such objectives in the broad policy statements of §§ 1 and 303(g)28 of the Act. The four dissenting justices said the upshot of the plurality's holding was "to make the Commission's authority over activities `ancillary' to its responsibilities greater than its authority over any broadcast licensee." 406 U.S. at 681, 92 S.Ct. at 1877. The Chief Justice, concurring in the result, concluded that until Congress acts, the Commission should be allowed wide latitude, but also stated:

In our view, the present mandatory access, channel construction, and equipment availability rules burst through the outer limits of the Commission's delegated jurisdiction.29 The 1976 Report nowhere states, and the Commission nowhere argues, that these rules were created and applied to cable systems to protect a broadcast station's "contour" as in Southwestern; or to require, as in Midwest, the origination of programs, like broadcasters do; or to govern an activity involving the airwaves; or to protect the growth of broadcast television; or to protect the public interest in continued broadcast television services;30 or to protect broadcasting against "unfair competition" from cable, or to allow the Commission "to perform with appropriate effectiveness"31 its responsibilities for broadcast television.

The standard established by the Court is "reasonably ancillary," not merely "ancillary." The standard is already broad, and the term "reasonably," requiring some nexus with the Commission's statutory responsibility, must not be read out of it. Nor can there be deleted what the Court said cable actions must be "reasonably ancillary" to, i. e., "the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." 392 U.S. at 178, 88 S.Ct. at 2005 (emphasis added).

The Commission has not shown the slightest nexus between its 1976 Report access rules and its responsibilities for broadcast television.

Because the free public access concept, on newly constructed, separately designated channels, has nothing to do with retransmission of broadcast signals on existing channels, the relationship or interaction between cable and broadcast systems present in Southwestern and in Midwest Video is totally absent here. The present rules are not designed to govern some deleterious interrelationship of cable systems to broadcasting, or to require that cable systems do what broadcasters do, but relate to cable systems alone, and are designed to force them into activities not engaged in or sought; activities having no bearing, adverse or otherwise, on the health and welfare of broadcasting.32

Though neither Southwestern nor Midwest Video supports jurisdiction here, it is a "reasonably ancillary" standard we apply, and it is the 1976 Report rules we review. Each regulation of cable television must individually stand or fall, not on legal precedent concerning other regulations, but on whether or not the regulation under the review meets the standard established by the Court.33 The Commission reliance on Southwestern and Midwest Video ignores the indications in those cases that it has no sweeping jurisdiction over cable television, that whatever jurisdiction it may have is contingent upon its delegated powers, and that each attempt to regulate cable systems must be individually justified. Nat'l Ass'n of Reg. Util. Comm'rs v. FCC, 174 U.S.App.D.C. 374, 385, 533 F.2d 601, 612 (1976).

Thus the Commission argues that the Court's approval of the mandatory origination rule in Midwest Video constituted effective approval of the present construction and access rules. The contention is disingenuous. The Court was aware that one way of satisfying the origination requirement was to cablecast programs "produced by others."34 But that form of "access" was not the mandatory access required by the present rules. Nor did that form of "access" involve the extensive and expensive construction, and equipment purchase and installation, required by the present rules. Further, the plurality opinion specifically stated that no regulation, proposed or adopted, other than the program origination requirement, was before the Court, and that no views were intimated on the validity of any other regulations. 406 U.S. at 652 n. 4, 92 S.Ct. 1860.

The Commission's argument equating its origination rule and the present access rules disregards fundamental differences between them. Under the former, had it been enforced, cable operators would have had discretion and responsibility for program content, could have sought financial support, and would have been forced to act like broadcasters. Under the latter, cable operators can have no discretion or responsibility for program content, may make essentially no charge, and are forced to act like common-carriers.35

Nothing, therefore, in the plurality's approval of the erstwhile origination rule as "reasonably ancillary" in Midwest Video may serve to bring the entirely distinct mandatory access rules within that standard.

To be "reasonably ancillary," the Commission's rules must be reasonably ancillary to something. As discussed below, the Commission has no jurisdiction within its statutory grant, under the broadest view of that grant, to force the present free public access rules upon broadcasters, or to make broadcasters into common carriers. Because, as we shall see, the 1976 Report regulations are an attempt to do just that to cable systems, they can fare no better. The Commission having no power to impose these access rules on either broadcast or cable systems, the 1976 Report regulations cannot be "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting."

(3) Objectives

(a) Statutory v. Commission Objectives

The Commission's fundamental argument, in support of jurisdiction to issue its 1976 Report regulations, is based on "objectives."36 That view permeates the 1976 Report and the Commission's brief here, the latter stating the issues as (1) whether the rules are a "reasonable exercise of agency authority to promote statutory objectives," in the face of arguments "rejected" in Midwest Video, and (2) whether the constitutional arguments, "also similar to those rejected in Midwest Video," are without merit. Even if a statutory statement of objectives constituted a grant of power, the objectives on which the Commission relies are not those stated in the statute.37

The statutory objectives stated in § 1 of the Act (not cited as authority in the 1976 Report) are "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 communication service * * *." The Commission does not argue that this, or any one of the statutory sections cited as authority in the 1976 Report, see note 25 supra, contains objectives achieved or approached by the present regulations. And well it doesn't. For the Act, however broadly read, contains no objectives so broad as to encompass whatever is necessary to get everybody on television. If that major foray be a legitimate goal, it must be established not by the Commission or the courts, but by Congress.

The "objectives," cited and relied on by the Commission in its brief here, are of its own design: "increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services."

The Commission draft of objectives in its brief is not the statement submitted to the Supreme Court in Midwest Video, where the full statement read, "to further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services." 406 U.S. at 654, 92 S.Ct. at 1863 (emphasis added). The Commission's brief thus tailors a set of objectives to fit the rules it desires here to sustain. To condone that practice would be to turn judicial review of the regulatory process on its head.38

If any specific "long established goals in the field of television broadcasting" are here involved, we are not told what they are. In the statement used to persuade the plurality in Midwest Video, "increasing outlets" and "augmenting choices" follow "by," and are thus set forth as actions leading to the broadcasting goals. We are cited to no instance in which "increasing outlets" and "augmenting choices" have themselves been approved as cable jurisdiction-spawning goals.39 If "increasing outlets" and "augmenting choices" are goals, they cannot be divorced from the context of broadcasting. That context defines and limits the means by which those goals may be sought. Moreover, if the objectives cited in Midwest Video and those cited here had been stated identically, that circumstance would not sustain the present rules. The only possible objectives—rules relationship in Midwest Video applied to origination. Because the rules are fundamentally different, relationship to an origination rule provides no support for rules enabling anyone and everyone to "get on" cable television.40

Doubtless "increasing outlets" and "augmenting choices" are laudable, praiseworthy, and desirable actions. Communication is the life blood of a free society, and "freedom of communication" is virtually synonymous with "freedom of speech" and "freedom of the press." It can be assumed that no agency will act toward objectives perceived as evil, but the world has come to regret many actions taken in the name of attractive euphemisms and appeals to goals beloved by many.

"[T]he widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945). See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Though those cases did not deal with access-by-all, the quoted principle is unchallengeable. To enliven and enrich the public dialogue is a commendable intent. We are here concerned, however, not with the Commission's psyche, but with its action. The question before us is not the sincerity of the Commission or the glorious nature of its objectives. The sole question is whether compelling cable systems to build and dedicate facilities to essentially free public use was within the Commission's jurisdiction.

The Commission calls "increasing outlets" and "augmenting choices" its "regulatory policy," pointing not to the Act but to the only former action appearing to support that policy, i. e., Midwest Video, which dealt with entirely different regulations. Whether we find the "policy" attractive is irrelevant. A court may favor an agency-espoused policy, while condemning the agency's exercise of unauthorized power in a specific action taken in pursuit of that policy. The nobility of a goal or policy cannot justify usurpation, by the Commission or by us, of a power to pursue it in whatever manner we think might "work."

The fundamental principle that governmental agencies are limited to the exercise of power delegated by the Congress would be nullified if an agency (like Disraeli, who is said to have preferred the power to write the public's slogans over the power to write its laws) were at liberty to expand its jurisdiction, as far and wide as it wished, by the facile, case-by-case step of re-writing the objectives found in the delegating statute. If "jurisdiction" be synonymous with agency-drafted, ad hoc "objectives," Congress and the courts become essentially superfluous.41

In its 1976 Report and before us, however, the Commission overrides all concerns, practical, statutory, legal, and constitutional, upon a single analysis, i. e., it is enough that its objectives be good and that its action be reasonably related to them. But the list of good "objectives" conceivable by the numerous regulatory agencies of the federal government, and perhaps achievable if they had carte blanche, is endless. And every act of every agency would be justified, jurisdictionally sound, and judicially approved, if values sought were the sole criterion.42

The Commission has on other occasions faced the delicate task of softening our troubled edges, when there occurs a restriction of someone's right to speak. Government may have to act to prevent single ownership of all television, radio, and newspaper voices in a community. The Commission's mandatory access, channel capacity, and equipment rules are quite another matter. Here the Commission engages in no protection of the right to speak. On the contrary, it has embarked, with positive commands, on a crusade to create a public right to use cable facilities.

True, the Commission acted here with a view toward expanding what it considers the goals of the First Amendment.43 Every regulatory agency should have all constitutional "goals" and restrictions on government in mind in carrying out its duties (the more so where, as here, the agency is operating outside its statutory jurisdiction), but we deal here with the Federal Communications Commission, not the Federal First Amendment Commission. We are aware of nothing in the Act, and have been cited to no other proper source, which places with the Commission an affirmative duty or power to advance First Amendment goals by its own tour de force, through getting everyone on cable television or otherwise. Rhetoric in praise of objectives cannot confer jurisdiction. If the Commission desires to operate in an area beyond its statutory borderline of jurisdiction, and to direct an industry, at that industry's expense, to provide and police new opportunities to speak, prior Congressional direction appears a minimum requirement.44 Composing its own statement of "objectives" will not alone provide the required jurisdictional power.45

(b) Objectives and Retransmission

The Commission's brief justifies its zeal for free public access to cable television, as it has most of its cable regulations, on cable's reception and retransmission of broadcast signals, i. e., its "free ride" on broadcast television, for which cable should "pay" by meeting Commission "objectives." In its Cable Report, 36 F.C.C.2d at 190, and in its present brief, the Commission states:

To the extent that cable systems must now pay royalties for broadcast programs retransmitted, note 32 supra, the Commission's "free ride" rationale may crumble. Beyond that question, however, the Commission does not "own" broadcast programs, and may not lawfully condition their retransmission on compliance with any and every rule it may devise.

In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), a copyright case concerned with whether cable systems "performed" retransmitted broadcast programs, the Court discussed cable's retransmission activity:

In Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), then Judge, now Chief Justice Burger said, "[N]either is [a broadcaster] a purely private enterprise like a newspaper or an automobile agency. * * A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations." 123 U.S.App.D.C. at 337, 359 F.2d at 1003. A cable system is on this record a private enterprise. No statute requires or authorizes federal franchising of cable systems. In retransmitting broadcast programs, cable systems use no "limited and valuable part," or any other part, of the federal public domain. The Commission nowhere tells us, nor is it readily apparent, why the mere retransmission of broadcast signals makes it "appropriate" that cable be shackled to every Commission notion of what is good for the public—or why the mere transmission of broadcast signals makes it "appropriate" that cable be chained (by requiring it and it alone to build, dedicate, and police new and separate facilities for public use) to the Commission's vision of the future.

The Commission does not say that the absence of 20 cable channels, and free public access thereto, has in any manner impeded "the fundamental goals of a national communications structure." What the Commission does say is that the cable industry must be regulated to give public access because cable is there, and has a "potential" to build a many-channeled capacity. A fortiori, says the Commission, cable systems must build and dedicate that capacity, to achieve the Commission's "objectives." But nothing whatever in the Act, or anywhere else, gives the Commission the unlimited right to say to any private industry, "We believe we have seen the future, and you must construct it." Because an industry can do something cannot be the sole basis for a federal agency's peace-time jurisdiction to make it do it.

(c) Objectives v. Unsupported Visions

The regulatory philosophy repeatedly expressed in the 1976 Report is that the imponderable whims of cable consumers cannot be relied upon, but that facilities, if built and offered free, will encourage their own use:48

Building for the future, says the Commission, will enable it to take advantage of cable's "capability," relying thus on a type of trickle-out theory to facilitate its social-engineering effort. The rules under review are thus self-fulfilling: they first compel the creation of excess capacity, and then impose a public access obligation on the ground that the capacity exists.49 The Commission must have broad discretion "to respond to changes which necessarily emanate from a dynamic industry," General Telephone Co. of Cal. v. FCC, supra, 134 U.S.App.D.C. at 131, 413 F.2d at 405, but the present access rules are not a response to change; they are the creation of change, in the "belief" that what the Commission describes as a "societal good," 1976 Report, 59 F.C.C.2d at 296, will result.

Visions of theoreticians are in proper context of great value. To achieve, man must visualize. And regulatory agencies must take into account both the future and the future effects of their regulations as best those effects may be estimated on a proper record. But visions of the future, with their low batting average for accuracy, serve poorly as the sole basis for regulations having the force of law;50 and prophecies of even the wisest regulator are no substitute for a lawful grant of jurisdiction.

Regulations like those before us, profoundly altering the obligations of a private business, requiring a fundamental change in its nature, and imposing costs on its consumer-subscribers, should be based on more than an uncertain trumpet of expectation alone. In enforcing regulations designed by the regulator to make futuristic visions come true, courts must proceed with a care proportional to the risk of delivering thereby into the regulator's hands an awesome power. For that way may lie not just a totally regulated future, unpalatable as that may be to a free people, but a government-designed, government-molded, government-packaged future.

The public interest rubric encourages judicial deference to an agency's expertise, not to its prescience. Findings may be presumptively correct. Not so futuristic guesses.

Most importantly, jurisdiction is not acquired through visions of Valhalla. An agency can neither create nor lawfully expand its jurisdiction by merely deciding what it thinks the future should be like, finding a private industry that can be restructured to make that future at least possible, and then forcing that restructuring, in the mere hope that if it's there it will be used.

The Commission asserts that it has a mandate to meet the always-with-us "need for additional means of community expression," Notice, supra, 53 F.C.C.2d at 790. We need not determine whether the Commission has such mandate. It is enough to hold that, if it does, it cannot pursue it by forcing broadcasters, cable systems, ham radio operators, pay-TV systems, subscription-TV systems, closed-circuit-to theatres systems, data processors, or any other communications industry, to construct facilities and donate them to anyone who walks in.

In short, the Commission has not been charged, even impliedly, with a responsibility of "increasing outlets for local expression and augmenting program choices," by mandating massive rebuilding and by attempting to deliver the audience of A over to B, at A's expense, just and solely because B wants to get an audience,51 and in total disregard of what the paying audience wants. Whether lodgement of that responsibility in the Commission be good or bad is not for us to say. It has not occurred.

(d) Objectives and the Public Interest

Jurisdiction having been found wanting, we discuss the public interest parameters in response to the Commission's insistence that its public interest objectives authorize its access rules. We do not decide a public interest question, other than to hold that the public interest is not served by agency actions beyond their jurisdiction. See National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).

The Commission founded its access rules on its belief that the "public interest can be significantly advanced by opening of cable channels for use by the public and other specified users who would otherwise not likely have access to television audiences," 1976 Report, 59 F.C.C.2d at 296, and refused to be deterred by evidence indicating little likelihood of anyone ever watching access programs. The cable consumer was thus made hostage to the Commission's faith that the equipment he was forced to buy would be used.52

The Commission referred to a "need" for access services, but refused to undertake a search for evidence of that need, recommended by two Commissioners. Notice, supra, 53 F.C.C.2d at 799-801. Absent evidence that the public is or may be interested in listening, the mere belief that the public interest lies in forcing cable operators to build and deliver to each citizen an electronic soapbox would appear entirely conclusory. As did the public interest in mandating origination, p. 1059 infra, it may also prove illusory.53

In insisting that channels be built, so their blankness will be "an inducement to be filled," the Commission made no reference to the consumer, but stated, "This consideration is true both for the potential channel user as well as the cable operator * * *." 53 F.C.C.2d at 788. But, as with the tango, communication takes two. Speaker minus listener equals zero. The 1976 Report is concerned with access by the public, not with access to the public.

Absent evidence that there is, or is likely to be, a substantial national demand by "users who would otherwise not likely have access to television audiences," and whether there is, or is likely to be, any demand at all for viewing by consumers, who would have to pay for access equipment (even if no access programs are produced; or no viewers ever watch), the Commission's argument that its objectives require a public interest conclusion that cable systems must be rebuilt, and mandatory access provided, is seriously undermined.54

It would appear that satisfaction of the Commission's desire to advance First Amendment interests in increased communication via its access concept can actually be assured only (1) by an Orwellian requirement that users must produce and cable consumers must watch access programs,55 or (2) by a cable system's provision of access programs in response to its subscribers' desire to view them. If, in broadcasting where viewing is free, "the interest of the viewer is paramount," Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1972) (CBS); Red Lion Broadcasting, supra, it would appear more so in cable systems, where subscribers must pay.

A public interest question may be stated as: Who decides whether cable consumers shall pay millions for equipment to enable access programs? The Commission, or the consumer? Nothing of record reflects a public interest in denying consumers that choice, or in forcing consumers to buy what they may refuse to purchase voluntarily. Certainly a merely conjectural connection between mandatory access and likelihood of its increasing true local communication, even if jurisdictionally permissible, would caution us, were we deciding where the public interest lay, against concluding that the public interest would be harmed if the choice remained with the consumer.56

Given the general desirability of the Commission's objectives, we find no basis, in the record made, for concluding that those objectives render the access rules before us "reasonably ancillary" to the Commission's responsibilities for regulation of broadcast television, or that those objectives confer upon the Commission a jurisdiction broad enough to encompass the present access rules.

(4) Ends v. Means

To countenance regulation without at least implied authorization of the people's representatives, because the purpose be benign, is to adopt the view that "the end justifies the means" and stop there. But in government as in life, a good end does not justify any and every means. As above indicated, origination and mandatory access are very different means indeed, and, as discussed below, the Commission is statutorily prohibited from enforcing its present mandatory access rules within its statutory jurisdiction over broadcasters.

It is not jurisdictionally so that means are immaterial, so long as broadly encompassing "objectives" can be restated from the purpose statement in § 1, or from the powers and duties statement in § 303(g), of the Act. Referring to Southwestern and Midwest Video, the D.C. Circuit has stated:

A "well-understood and consistently held policy developed in the Commission's regulation of broadcast television" includes regulatory means as well as regulatory goals. In Home Box Office, after noting that the Commission was without authority to control the program content of broadcast television in the manner sought under the anti-siphoning rules there at issue, the court said:

In Home Box Office, the Commission was employing means not available in broadcast regulation to control cablecasting activities already underway. Its present effort to employ means not available in broadcast regulation is even further beyond its jurisdiction, for here the Commission is attempting to compel the initiation of particular (access) cablecasting activities. It is at best anomalous to assert that broadcasting objectives are furthered by use of regulatory tools not lawfully useable to regulate broadcasting.58 As we have said, regulatory action cannot be "reasonably ancillary" to nothing.

We need not determine what distinctions the Commission may draw between broadcasting and cable systems. It is sufficient to hold that, in making any such distinction, the Commission may not exceed its jurisdiction. However attractively the Commission's objectives are interpreted, reinterpreted, or re-packaged, regulatory actions forbidden as means to achieve them within its statutory jurisdiction cannot be considered "reasonably ancillary" to that jurisdiction.59

(5) The Means Are Forbidden Within

The Commission's Statutory Jurisdiction

(a) Forced Access

Counsel for the Commission admitted at oral argument that the mandatory access rules here at issue could not be enforced upon broadcasters. Though counsel said the reason lay in scarcity of broadcast frequencies, it appears to have escaped Commission attention that it is the scarcity of broadcast signals that excuses its limited regulatory intrusion on First Amendment and other rights of broadcasters. The Commission's notion that the absence of scarcity in the potential number of cables removes the limits on its authority has things backward. The absence of scarcity removes the excuse for intrusion.

The reasons why access-to-cable cannot be justified as related to the broadcast milieu are fundamental and pervasive. First, as indicated throughout this opinion, many impedimenta to enforcement of mandatory access have nothing to do with scarcity of broadcast frequencies. Second, the Commission's breadth of regulatory power over "semi-public" broadcasters, though limited, is expressly statutory and greater, not less, than any ancillary power it may have over private media, like cable systems. See National Broadcasting Co. v. United States, supra, at 216-219, 63 S.Ct. 997 (1943). Third, the Commission's confirmed policy is that no private individual or group has a right to use broadcast frequencies, and it has recognized that action contrary to that policy is beyond its jurisdiction.

If there be a relation between public access and the Commission's "long established regulatory goals in the field of television broadcasting," it escapes detection in the Commission's actions within its jurisdiction. The Commission firmly rejected an opportunity to move even partially toward those goals, as it here interprets them, when it was requested to force paid and limited, not free and fullblown, access on broadcasters. Its resistance was sustained by the Supreme Court, which established that no person has a constitutional right of access to broadcast television. CBS, supra.60

Indeed, if there be a "public interest" in achievement of the Commission's "long established goals" through access, the Commission has not attempted to serve that public interest by requiring broadcasters, who reach the vast majority of television viewers and are clearly within its jurisdiction, to give (or even sell), even limited time to the public on a first come, nondiscriminatory basis; nor does the Commission deny broadcasters the right to control the material going out over their facilities.

This court will not interpret the Commission's "long established goals" one way when the Commission is operating near the ancillary fringes of its statutory jurisdiction, and another way when it is operating clearly within its statutory jurisdiction; nor can we believe that the Commission's "long established goals," interpreted by the Commission as authorizing public access, are legitimate when applied to cable systems and illegitimate when applied to broadcasters.

Still, at the very time the Commission was telling us that only practicality impeded its full authority to force the present free public access rules upon broadcasters, it refused even to inquire into the need for broadcasters to give even a little time (petitioners sought 90 seconds out of every 7,200 seconds) to Public Service Announcements (PSAs), and to adopt rules enabling citizen groups, minority spokesmen, and in general the same access-seekers involved here, to have their announcements aired. Petition to Institute a Notice of Inquiry and Proposed Rule Making on the Airing of Public Service Announcements by Broadcast Licensees, FCC 77-685 (Released Oct. 13, 1977). The petitioners' "objectives" were paraphrases of those relied on here by the Commission, i. e., an increase in "diversification" of "programming," community service, meeting local needs, favoring "those citizen groups whose voices typically have not been heard on the broadcast media," and providing "needed assistance to citizen groups in communicating their programs to the public." Petitioners also asked that broadcasters make facilities and technical assistance available.

Broadcasters argued, in Petition, supra, that the "proposed rules would be an impermissible intrusion into [their] programming prerogatives," that "requiring a broadcaster to air a particular type of program matter constitutes censorship," that providing technical assistance would be a "heavy burden" on small staffs, and that giving "special access to certain groups" was contrary to "the Commission's policy that no private individual or group has a right to the use of broadcast facilities." In its decision denying an inquiry, the Commission stated:

Again, in a recent proceeding, Changes in the Entertainment Formats of Broadcast Stations, Notice of Inquiry, 57 F.C.C.2d 580 (1976), Memorandum Opinion and Order, 60 F.C.C.2d 858 (1976), the Commission concluded that it lacked authority to regulate broadcast program formats, because that action is analogous to imposing common carrier responsibilities on broadcasters and is thus prohibited by Section 3 of the Act, 60 F.C.C.2d at 859; and because "[i]t is impossible to determine whether consumers would be better off [with a particular format] without reference to the actual preferences of real people." Id. at 864. The Commission's 1976 Report attempts to impose a "public forum" format on cable systems, and, as discussed below, it does impose common carrier responsibilities, and it totally ignores the preferences of cable consumers, who are "real people."

Thus the Commission exceeded its own recognized jurisdictional limitations in the field of television broadcasting, when it attempted to impose its 1976 Report mandatory access, channel construction and equipment rules on cable systems.62 The Commission does not in truth rely here on any "reasonably ancillary" jurisdiction. The jurisdictional genesis for the present access rules is not even allegedly lurking in the lacuna of the Act.63 It arises not from a power over broadcasting but from a Commission act of creation. Creation, however, is a function of the Almighty, and in the creation of jurisdictional authority, the almighty is Congress, not the Commission.

(b) Common Carrier

Section 3(h) of the Act, 47 U.S.C. § 153(h), provides that "a person engaged in radio broadcasting shall not * * * be deemed a common carrier." In National Association of Regulatory Utility Commissioners v. FCC, 173 U.S.App.D.C. 413, 424, 525 F.2d 630, 641 (1976), cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976), and in National Association of Regulatory Utility Commissioners v. FCC, 174 U.S.App.D.C. 374, 381-82, 533 F.2d 601, 608-09 (1976), the court defined the two prerequisites of communications common carriage: (1) provision of service to users indiscriminately; and (2) transmission of intelligence of the user's own design and choosing. The 1976 Report mandatory access rules require: (1) provision of cable service to users indiscriminately; and (2) transmission of intelligence of the user's own design and choosing. Thus the 1976 Report imposes common carrier responsibilities on cable systems, and the attempt to bludgeon cable systems into becoming common carriers is an exercise specifically forbidden the Commission within its delegated powers. It is no more jurisdictionally sound than the same action would be if exerted against broadcasters.64

The 1976 Report creates a dilemma and impales itself on the horns. The regulations require that a cable system cablecast access users' programs. If the Commission's equation of "cablecast" to "broadcast" be made, the cable system, as broadcaster, cannot have the Commission's common carrier type access rules enforced upon it without violation of the Act.65

There can be no question that the 1976 Report mandatory access rules are an attempt to convert cable systems into common carriers with respect to their bandwidths not used to retransmit broadcast signals. In the parent Cable Report, the Commission emphasized that it contemplated "a multipurpose cable operation combining carriage of broadcast signals with program origination and common carrier service." 36 F.C.C.2d at 197. (emphasis added) It repeated that contemplation in its Reconsideration, 36 F.C.C.2d at 352.66

To keep its "Certificate of Compliance," a cable system must comply with the Commission's mandatory access regulations (or seek a waiver, which has no jurisdictional effect). In Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 592, 599, 46 S.Ct. 605, 70 L.Ed. 1101 (1926), the Court found it an unwarranted intrusion into the conduct of a private enterprise for the government to mandate that trucking companies offer their services as common carriers or not at all, rejecting the argument that the state could so condition the use of highways. We find it an unwarranted intrusion into the conduct of a cable enterprise for the Commission to mandate that cable companies offer services as common carriers or not at all, and we reject the argument that it may so condition broadcast program retransmission, which has not even the nexus to cablecasting that highways may have to trucking. Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394, 405, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974).

Prior to promulgation of mandatory access rules, cable operators had full discretion to decide what originated programming to distribute over their facilities. That would have remained true if the Commission had enforced its origination rule, under which cable operators need not have transmitted communications of all comers. Access rules, removing discretion from cable operators and forcing them to act as common carriers, do not prevent a business entity from acting in a manner injurious to the public interest. The present rules merely accomplish the coercion into common carrier operations of a business neither acting as, nor holding itself out as, a common carrier.

The Commission chooses not to meet directly Midwest's argument that it lacks jurisdiction to force common carrier responsibilities upon cable systems. It merely relies on the broad allegation that its access rules "are reasonably related to achieving objectives."67 That reliance must fail, for imposition of common carrier responsibilities to achieve broadcast goals impermissibly intermixes the two fields which Congress expressly kept asunder, by its enactment of § 3(h) of the Act, and its separate treatment of common carriers (Title II) and broadcasters (Title III) in the Act.

Though the Commission tells us that Midwest Video legitimized its present common carrier type access regulations, the Commission told the Supreme Court that the origination rule there involved was an attempt to require cable systems "to meet some of the same basic standards of responsibility to the public that are imposed on broadcasters." Brief for appellants United States and FCC at 15 n.12, Midwest Video, supra.68 Because the Commission's 1976 Report regulations are an attempt to require cable systems to meet "standards of responsibility to the public" that cannot lawfully be "imposed on broadcasters;" they are necessarily divorced from, rather than reasonably ancillary to, the Commission's regulation of broadcasting.

II Constitutional Considerations

The 1976 Report access regulations having exceeded the Commission's jurisdiction, it is unnecessary to rest our decision on constitutional grounds and we decline to do so. Benanti v. United States, 355 U.S. 96, 99, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957); Neese v. Southern Railway, 350 U.S. 77, 78, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1954). Moreover, communications technology is dynamic, capable tomorrow of making today obsolete. Referring to First Amendment rights of broadcasters and the public, in CBS, supra, the Court said, "At the very least, courts should not freeze this necessarily dynamic process into a constitutional holding." 412 U.S. at 132, 93 S.Ct. at 2101.

Though we find it unnecessary to resolve the serious constitutional issues raised, we do hold that where, as here, potential incursions into sensitive constitutional rights are involved, careful scrutiny is required in delineating the scope of authority that Congress intended the agency to exercise.

Moreover, the First Amendment overtones, and other constitutional considerations present in the 1976 Report, are such as to reinforce our conclusion on the jurisdictional issue.69

(a) The First Amendment

This is the first case raising the First Amendment implications of a Commission effort to enforce unlimited public access requirements. The Commission has shown a proper care and concern for the First Amendment rights of broadcasters, and for the Act's (§ 326) prohibition of censorship, as illustrated by its resistance to demands for limited access to broadcast television. CBS, supra; Petition, FCC 77-685, supra. That care and concern is remarkably absent from the 1976 Report, compelling unlimited access to cable television.

Nor does the Commission make any effort before us to indicate that, in its 1976 Report, it engaged in the required, though difficult, "balancing" task in which it has traditionally engaged with respect to First Amendment values in exercising its jurisdictional responsibilities for broadcast television. Concentrating on creating a public right to exercise freedom of speech on cable television, the Commission gave no thought, on this record, to freedom of the press.

The Commission points to no First Amendment right which it believes overrides the First Amendment rights it has recognized in broadcasters but refused to recognize in cable operators. Instead, the Commission's brief dismisses Midwest's concern for its First Amendment rights in four paragraphs, saying only that cable systems retransmit broadcast signals, that Midwest Video authorizes rules designed to achieve the Commission's program diversity "objectives," and that First Amendment goals are promoted by access rules, citing Red Lion Broadcasting Co., supra, and language therein concerning an "uninhibited marketplace of ideas" and "monopolization of that market."

Assessment of the proper balance of First Amendment rights must be based on a record, not merely on argument regarding precedent or on resort to an "objectives" rubric. Government control of business operations must be most closely scrutinized when it affects communication of information and ideas, and prior restraints in those circumstances are presumptively invalid. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). "The line between informing and entertaining is too elusive for the protection * * *" of First Amendment rights to turn on that distinction. Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948).

In wresting from cable operators the control of privately owned facilities for transmission of programs not acquired from public airwaves, the Commission makes no effort to show that action to have been necessary to protect a "clear public interest, threatened not doubtfully or remotely, but by clear and present danger," or to show "the gravest abuses, endangering paramount interests [which would] give occasion for permissable limitation." Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). As the Court described the majority error below in CBS, supra, 412 U.S. at 126, 93 S.Ct. at 2098, the Commission appears to have "minimized the difficult problems" created by its access rules, and thus "failed to come to grips" with the important First Amendment considerations present—"the risk of an enlargement of Government control over the content of [cablecast] discussion of public issues."

In its desire to accommodate "users who would otherwise not likely have access to television audiences," 1976 Report, 59 F.C.C.2d at 296, the Commission made no delineation of whether cable systems, absent imposition of its access rules, are public forums. If they are not, it would appear that the present access rules cannot withstand constitutional muster. Every individual's right to speak, precious and paramount as it is, does not include every individual's right to be given the possibility of an audience by government fiat, or to speak in a non-public forum, like a newspaper, a magazine, or on the Senate floor. See American Communications Association v. Douds, 339 U.S. 382, 394, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Avins v. Rutgers, State University of New Jersey, 385 F.2d 151, 153 (3rd Cir. 1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982 (1968). The First Amendment rights of cable operators rise from the Constitution; the public's "right" to "get on television" stems from the Commission desire to create that "right."

It is not enough, therefore, to merely cite the retransmission of broadcast signals by cable systems. As above indicated, no nexus exists between the function of retransmitting broadcast signals and the distinct function of cablecasting. Teleprompter Corp. v. Columbia Broadcasting System, Inc., supra. Cablecasting is communicating, requiring thorough and penetrating consideration of the communicator's First Amendment rights.70 Cablecasting, however, involves no transmitting over the airwaves or the use of signals acquired from the airwaves.71

If there be any arguable relationship between cablecasting and retransmission, it would appear far too tenuous and uncertain to warrant a cavalier overriding of First Amendment rights present in cablecasting.

Concurring in Home Box Office, supra note 29, Judge Weigel expressed well the concern noted here, in stating:

Under its 1976 Report access rules, the Commission is present in each cable operator's studio, holding open the door to all who wish to enter and use it, (turning its back, however, as we shall see, when the pornographer enters). Under some circumstances, the Commission's access rules effectively silence the cable operator, denying him all use of his own facilities, for any exercise of his First Amendment rights. 1976 Report, 59 F.C.C.2d at 316-17. The Fairness Doctrine applicable to cablecasting, 47 C.F.R. § 76.209, would involve the Commission when circumstances give rise to its application, but application of that doctrine to access programs has not on this record been considered by the Commission.72 The constitutional considerations generated by its access rules require the Commission to evaluate carefully the extent to which it may reside in the studios of cablecasters as one of the issues too sensitive to permit superficial dismissal on the mere ground that cable operators, in a separate activity, retransmit broadcast signals.

Though neither Southwestern nor Midwest Video dealt with First Amendment concerns, the Commission says it "contemplated" third party access as among its "objectives" in issuing the origination rule approved in Midwest Video. If that be so, what may have rested on the backroads of the Commission's mind is irrelevant. Our interest is in what the Commission did; and what it did in Midwest Video is entirely distinct from what it did here.

Moreover, our concern at this point is with a fundamental First Amendment difference, which the Commission appears to ignore. Under origination the cable operator may permit access of third parties of his selection, and retain ultimate editorial discretion and responsibility regarding what programming material goes out over his lines. Under the present access rules he may choose neither user nor material.

The irrelevance of "objectives," as a sole basis for jurisdiction, is even more apparent when objectives are cited as sole justification for access rules, regardless of their effect on First Amendment rights. Red Lion, supra, involved application of the Fairness Doctrine to broadcast television. Its language cannot validate the present access rules or justify a disregard of the constitutional concerns they entail. Citation of Midwest Video and Red Lion cannot serve as a basis for failure to make the First Amendment evaluations required here.

The Commission does not favor us with any views as to: (1) why cable systems are not entitled to the same First Amendment rights as other private media, such as newspapers and movie theatres; (2) how compelled access to cable facilities is distinguishable, in a First Amendment context, from compelled access to broadcast facilities; or (3) how its rule, 47 C.F.R. § 76.256(d)(1)-(3), requiring cable operators to exercise prior restraint of obscenity,73 and the exposure of cable owners to law suits resulting from its access rules, can be justified. Though we refrain from resting our decision on the Constitution, we note the emphasis in the Commission's brief on the notion that access is old and established ground; but when serious First Amendment questions are raised, deja vu will not do.

In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), the Court held unconstitutional a state effort to compel access to the pages of a newspaper, even for the limited purpose of attack-response. In Home Box Office, supra note 29, at 46, the court said:

The present access rules strip from cable operators, on four of their channels, all rights of material selection, editorial judgment, and discretion enjoyed by other private communications media, and even by the "semi-public" broadcast media. Cable operators must allow use of their facilities, for transmission toward their paying subscribers, of any program material, no matter the quality, interest, relevance, taste, context, beauty, or scurrilousness (short of obscenity, when prior restraint is physically possible, infra). They must lease a channel to any person, regardless of business reputation, competence, or financial standing. They must permit third-party installation of equipment on the sets of their subscribers who want to watch the third party's program.74

Though the Commission's logic would apply, and its "objectives" would be as well achieved, and though newspapers "retransmit" hundreds of government press releases, we assume that no government agency has the fatal-to-freedom power to force a newspaper to add 20 pages to its publication, or to dedicate three pages to free, first-come-first-served access by the public, educators, and government, or to lease a fourth page on the same basis, or to "advance the public interest by opening of [letters-to-editor columns] for use by public and other specified users who would otherwise not likely have access to [newspaper] audiences."

Despite the Court's guidance in Miami Herald, supra, the Commission has attempted here to require cable operators, who have invested substantially to create a private electronic "publication"—a means of disseminating information—, to open their "publications" to all for use as they wish. That governmental interference with the editorial process raises a serious First Amendment issue. Though we are not deciding that issue here, we have seen and heard nothing in this case to indicate a constitutional distinction between cable systems and newspapers in the context of the government's power to compel public access.

If the Commission has any authority to intrude upon the First Amendment rights of cable operators, that authority, as above indicated, is less, not greater than its authority to intrude upon the First Amendment rights of broadcasters. Were it necessary to decide the issue, the present record would render the intrusion represented by the present rules constitutionally impermissible.

The 1976 Report spawns a further, and serious, constitutional difficulty of another sort. The Commission's access rules require cable operators to create and operate a public forum, with no control of its content, but with an obligation of suppressing speech the government could suppress because of obscenity or indecency. 47 C.F.R. § 76.256(d)(1)-(3).75 In so mandating, the Commission appears to have created a corps of involuntary government surrogates, but without providing the procedural safeguards respecting "prior restraint" required of the government.76 In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), the Court described those safeguards as: (1) the censor must initiate judicial proceedings and prove the material unprotected; (2) restraint prior to judicial review can be only for a brief period, to preserve the status quo; and (3) prompt judicial determination must be assured.

When cable operators asked how they could censor obscenity in the open access system required by the 1976 Report, the Commission issued a Clarification, supra note 19, which stated that cable operators must "enforce" the rule, and must proscribe all obscene and indecent matter, and, "Indeed, he is responsible to the Commission for doing so." 59 F.C.C.2d at 984. The Commission said cable operators should exercise a prior restraint when possible, and, when that is not possible,77 cable operators should exclude the offender from access in the future. Thus the Commission made the cable operator both judge and jury, and subjected the cable user's First Amendment rights to decision by an unqualified private citizen, whose personal interest in satisfying the Commission enlists him on the "safe" side—the side of suppression.

Nor does the Clarification appear to have dealt with the chilling effect which fear of future disbarment would have upon access users (though it referred to such an effect on access services if cable operators had to pre-screen numerous programs). Neither did it discuss the effect on subscriber allegiance to a cable system which must permit live access programmers at least one bite at the obscenity apple. The Clarification "suggested" that "distasteful" programs be cablecast at hours that would "minimize exposure to children," but specifically refused to either require or prohibit such scheduling. 59 F.C.C.2d at 985. How any "scheduling" could be done, of programs unknown to and under no control of the operator, was not discussed. Nothing was said in the Clarification respecting the prior-restraint safeguards specified in Southeastern Promotions, Ltd. supra, or in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

(b) Due Process

Midwest argues persuasively that the 1976 Report mandatory construction and access rules constitute a taking of private property without just compensation and deny cable owners an opportunity to earn a fair rate of return, in violation of the due process clause of the Fifth Amendment.

The Commission makes no effort to show that its access rules do not violate the due process provisions of the Constitution. It merely dismisses petitioner's arguments on its "objectives" and on the ground that the same arguments were rejected by this court in Black Hills Video Corp. v. FCC, supra note 71, and by the Supreme Court in Midwest Video.

Though we find it unnecessary to resolve the issue, we have rejected the objectives argument above, and we suggest the inappropriateness of the Commission's legal precedent argument. That a violation of due process rights under the Constitution may not have been earlier found by a court, in reviewing regulations concerning cable's use of a microwave company's services and non-duplication rules, as in Black Hills, or concerning an origination rule, as in Midwest Video, cannot for a moment mean that due process concerns raised by the 1976 Report mandatory construction and access rules may on that ground be dismissed. As in the matter of jurisdiction, each regulation must on its own pass, or fail to pass, constitutional muster.

In promulgating regulations requiring expenditures of many millions of dollars for construction and public dedication of additional channels and equipment, the Commission was not at liberty to disregard due process rights of cable operators, or of cable consumers to whom most if not all costs will be passed. Whether those rights be labeled "economic" or otherwise, they are not in our view obsolete.78 The human right to own property is a most fundamental right, the alleged deprivation of which cannot be ignored because that right was found uninfringed, or overtaken by the public interest, in cases dealing with earlier and different regulations. If consumers' money is to be taken, in response to a federal regulatory agency's view of the public interest, it must be upon a record far less speculative than that at hand, and on a far stronger basis than court decisions relating to other regulations.

The present access rules, scraped free of argumentative barnacles, require the construction of facilities and their dedication to the public. Presumably, a requirement that facilities be built and dedicated without compensation to the federal government (for public use) would be a deprivation forbidden by the Fifth Amendment. A "taking" does not require that the government take title. United States v. Kansas City Life Insurance Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). That the forced dedication be direct to the people, rather than indirect through their government, would appear to be of no constitutional moment.

We express concern, also, over the Commission's approach to a further problem engendered by its 1976 Report regulations. When the cable operator, in policing his access channels, is considering whether an access user is being or has been "obscene" or "indecent,"79 or whether access should be denied for any reason, there are ghosts in the wings. On one side lurks a fear of violating the Commission's rules, and potential loss of his "Certificate of Compliance." On the other stands the potential for violation of the access user's rights. The exposure of cable operators to law suits, by access users claiming prior restraint of their First Amendment rights, or interference with their new-found "right" to be on cable television whenever, and as often as they like, by the state for his having transmitted obscene material, by outraged subscribers (whether outraged by obscenity or outraged by having to pay for it) or by persons denied access for any reason, is among the problems which do not appear to have been fully considered by the Commission in its removal of the cable operator's control over his system's programs. The Commission did speak of the censorship and law suit problem in its Cable Report, 36 F.C.C.2d at 196:

And again on reconsideration:

The subjection of cable operators to potential liability because of the acts of third parties over which they have no control, and the burden and expense of cable operators in trying to convince state courts that the Commission's regulations supersede state law, was not addressed in the 1976 Report.

The Commission, in its requirement that cable operators exercise prior restraint of obscenity in access cablecasting, attempts to transfer to cable operators the very censorship power statutorily forbidden to the Commission in § 326 of the Act.81 The Commission's "belief" that cable operators would be free of legal liability because they were only following orders seems ill-founded when the orders are to do what it cannot do.

The aplomb with which the Commission is willing to forcefully expose cable operators to criminal and civil suits, with all of the uncertainties and serious liberty and financial risks involved in defending them, particularly in these years of America's litigious binge, raises serious questions, about the rationality of the access rules, about the lack of evidence showing a public interest so strong as to warrant them, and about the due process interests affected; all of which would require the closest judicial scrutiny if the access rules of the Commission were to be otherwise held within its jurisdiction.

III The Record

Because the mandatory access and channel capacity rules of the 1976 Report exceed the jurisdiction of the Commission, we refer to the record only because our reference may be of use in further proceedings.

Concerning abandonment of its cable origination rule, the Commission stated:

The Commission does not tell us how, if at all, its mandatory access rules would result in "[q]uality, effective, local programming" with the required "creativity and interest" by legal mandate; or why their "net effect" would not be an even greater "expenditure * * * for programming * * * neither wanted by subscribers nor beneficial to the system's total operation;" or why "an outlet for local expression" would not begin to develop under voluntary access "regardless of specific legal requirements" when a "cable community showed a desire" for access programs; or why, if such desire occurred, operators would not feel "compelled" to supply access programs to "attract and retain subscribers;" or why decisions on origination programming "in light of local circumstances" is "as it should be," while decisions on access programming in that "light" should be denied by force of law to operators, subscribers, and local franchise authorities. In sum, the Commission, in mandating channel construction and public access, appears to have gone directly contrary to its origination experience.82

The Commission makes no response, on the merits, to Midwest's argument that the access rules are arbitrary, capricious, and irrational, but remains content to argue that the record information behind its Cable Report, by which it first adopted access rules, is not before us.

We do not here find it necessary to review the present record in the detail required when a decision turns on the nature of the rulemaking process, Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, the Cable Report itself, the 1976 Report, and its record information, are more than sufficient to illustrate the Commission-recognized speculative nature of the agency's mandatory access action, and to raise a serious question of whether it would be sustained on the administrative record.

Moreover, the right of Midwest, to whom access rules were first made applicable by the 1976 Report, to judicial review of its challenge to the rationality of access rules per se is even more certain than that of petitioner in Functional Music, Inc. v. FCC, 107 U.S.App.D.C. 34, 274 F.2d 543 (1953), where the underlying rules had long been applicable to petitioner.

The Commission's arbitrary approach to imposition of its "access concepts" appears reflected in the 1976 Report. Disregarding the results of its flawed faith in origination, the Commission compelled construction of facilities on the obvious fact that failure to construct them would impede their use and on the mere theory and assumption that if they are built they will someday be used.83 Throughout the 1976 Report, the Commission describes most of its rules as involving "difficult" problems. In withdrawing and modifying its Cable Report rules, the Commission itself characterized some of those earlier rules as: imposing "a very significant burden * * * for which there is no reasonable foreseeable need," 59 F.C.C.2d at 306; requiring a two-way capacity for which "developments * * * have been far slower than was anticipated * * *," id. at 309; imposing a "burden [converter installation] we have required system operators to meet [we think] is unreasonable * * *," and imposing a cost on "the subscriber who must ultimately pay * * * whether or not he wishes to view the programming being provided * * *," and that may have impeded construction of cable systems in new communities. Id. at 313.84

In 1974, the Commission stated that it was "too early to discern any trends regarding our leased access channel rules," and that "access is still in its infancy and it has a long-hard-struggle ahead before it becomes an accepted part of the communication process in this country. We knew this would be the case when we instituted the rules * * *." Clarification of the Cable Television Rules, 46 F.C.C.2d 175, 185 (1974). Two years later, the 1976 Report contains no discussion of any evidence or investigation of trends favoring leased or other access channel rules.

The Commission implicitly and explicitly recognized that there was insufficient evidence of demand for access programs, present or future, by users or viewers. Recognition of that lack of evidence, and the speculative roots of the present access rules, appear implicitly in the Commission's reliance on the need to build facilities so they can create their own use, and in its specific refusal to rely on the marketplace. Explicitly, the 1976 Report contains: "While the overall impact that use of these [access] channels can have may have been exaggerated in the past, nevertheless we believe they can, if properly used, result in the opening of new outlets for local expression * * *," 59 F.C.C.2d at 296; "there may be need [outside major television markets] for access services * * *." Id. at 300. "In addition, the audiences viewing access programming on such [small systems inside major markets] may reasonably be expected to be so small that a federally imposed requirement would appear inappropriate." Id. at 303. "Based upon the comments filed in this proceeding as well as those filed in Docket 20363 and our experience generally, while it would appear that the use of access channel is growing, in the vast majority of communities presently providing multiple channels for access use, these channels are at best sporadically programmed." Id. at 314 (emphasis added). On reconsideration, speaking of possible denial of access services by cable operators, the Commission said, "Our present experience has been, however, that even larger systems typically have difficulty finding access channel users so this problem with smaller systems is not likely to arise with any frequency." 62 F.C.C.2d at 403 (emphasis added).85

The Commission's apparent inability, or unwillingness, to assemble a rational factual basis for its belief that its "access concept" will "work" is the more surprising in view of its relatively long experience with the subject.86 Seven years before the 1976 Report, the Commission referred to a possible future requirement for leased access, and adopted the "basic goal" of maximum program choice through public access to cable facilities. CATV, First Report and Order, 29 F.C.C.2d 201, 205-06 (1969). Its coercive reach for that goal occurred in 1972, four years before the 1976 Report, when it issued the channel construction and access rules of the Cable Report. In the Cable Report, the Commission stated that its judgments on how access would evolve were "intuitive" and that "necessary insights" would be needed. 36 F.C.C.2d at 194, 197, 352. In 1974, two years before the 1976 Report, the Commission repeated its dedication to use of the public power in pursuit of its predilection for access. Clarification of the Cable Television Rules, 46 F.C.C.2d 176, 179-80 (1974). In 1976, still devoid of evidence that any meaningful present or future public demand for access could be expected, the Commission introduced its present action by saying, "We wish to emphasize at the outset that we do not intend in this proceeding to abandon our goals for access cablecasting; * * *." Notice of Proposed Rule Making, 53 F.C.C.2d 782, 784 (1976).

In its 1976 Report, as above indicated, the Commission adhered to its faith in access as a naked "concept," refusing to seek evidence that the public interest would not be harmed by mandating consumer expenditure of millions for equipment never used.87 The Commission's refusal "to leave the provision of channel capacity and access services entirely to the marketplace * * *," 59 F.C.C.2d at 321, appears contrary to the law limiting the Commission within its statutory jurisdiction, where access to broadcast facilities is governed not by regulation but by market forces. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 84 L.Ed. 869 (1940).

It is not readily apparent that the present rules were based on a clear administrative record that shows existence of a problem justifying intrusion on First Amendment rights, or that relates a "solution" to the agency's statutory mandate as required by United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Further, the mandatory access rules explicitly and candidly appear to curtail expression indirectly by favoring access seekers over cable system owners, contrary to the injunction of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976).

There may rarely be time for complete answers and insights, but the Commission appears to have here failed to defensibly articulate a rationality for its access rules. If jurisdiction were present, and it were therefore necessary to give the present record the "hard look" referred to by Judge Leventhal in Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), it is at best doubtful that a court could avoid finding it reflective of agency action arbitrary and capricious.

Conclusion

The 1976 Report mandatory channel capacity, equipment, and access rules exceeded the jurisdiction of the Commission. Accordingly, they are set aside.

WEBSTER, Circuit Judge, concurring.

I concur in the Court's decision to set aside the Commission's regulations because they are outside the statutory jurisdiction conferred on the FCC in the area of cable television. (See Part I of the opinion.) While I am in general agreement with the extensive and well-reasoned analysis of the constitutional questions contained in Chief Judge Markey's opinion (see Parts II and III), I refrain from joining it because disposition of the case on the jurisdictional basis makes it unnecessary to reach those questions.1