NATIONAL CABLE TELEVISION ASS'N, INC. v. U. S
415 U.S. 352 (1974)

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U.S. Supreme Court

NATIONAL CABLE TELEVISION ASS'N, INC. v. U. S , 415 U.S. 352 (1974)

415 U.S. 352

NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner, v. UNITED STATES and Federal Communications Commission.

FEDERAL POWER COMMISSION, Petitioner, v. NEW ENGLAND POWER COMPANY et al.

Nos. 72-948, 72-1162. Supreme Court of the United States

Argued Dec. 3, 1973. March 4, 1974

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in the result in No. 72-1162 and dissenting in No. 72-948.

These cases present two distinct issues involving interpretation of the Independent Offices Appropriation Act, 1952: first, whether sufficient 'work, service, . . . benefit, . . . or similar thing of value or utility' was conferred on the CATV operators or utility companies to warrant imposition of a fee under the statute; and, second, whether, if a fee was justifiably imposed, the amount of the fee was determined in accordance with a proper interpretation of the statutory standard that it be 'fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts.' 31 U.S.C. 483a. The Court, however, fails to recognize that these issues require independent analysis. Instead, permeating the Court's opinions on both issues is an attempt to draw metaphysical distinctions between a 'fee' and a 'tax.' I do not find this approach either helpful or appropriate; whatever the label, the questions presented in these cases involve simply whether the charges assessed by the Commissions were authorized by Congress. The Court's approach merely beclouds its analysis, producing results which seem to me inconsistent and affording guidance to the agencies in setting their fee policies which might be charitably described as uncertain. This approach is allegedly based on the need to construe the statute narrowly to avoid constitutional difficulties. I do not believe that any serious question of the constitutionality of the Act would be presented if Congress had in fact authorized these charges. The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has

Page 415 U.S. 352 , 353

been virtually abandoned by the Court for all practical purposes,1 at least in the absence of a delegation creating 'the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of (constitutionally) protected freedoms,' United States v. Robel, 389 U.S. 258, 272, 428 (1967) (Brennan, J., concurring). This doctrine is surely as moribund as the substantive due process approach of the same era-for which the Court is fond of writing an obituary, e.g., Ferguson v. Skrupa, 372 U.S. 726d 93 (1963); North Dakota Pharmacy Board v. Snyder's Stores, 414 U.S. 156 (1973)-if not more so. It is hardly surprising that, until today's de- [415 U.S. 352 , 354]


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