The Independent Offices Appropriation Act, 1952 (the Act),
authorizes each federal agency to prescribe a fee, charge, or price
for services provided by the agency "to or for any person
(including groups . . . )," determined to be fair and equitable,
consideration being taken of "direct and indirect cost to the
Government, value to the recipient, public policy or interest
served, and other pertinent facts. . . ." Pursuant to the Act, the
Federal Power Commission imposed an annual assessment against all
jurisdictional electric utilities in proportion to their wholesale
sales and interchange of electricity, and against all natural gas
companies with operating revenues of $1,000,000 or more in
proportion to their deliveries of natural gas in interstate
commerce. On petitions for review, the Court of Appeals set aside
these annual charges, holding that whole industries are not in the
category of those who may be assessed under the Act, the thrust of
which reaches only specific charges for specific services to
specific individuals or companies.
Held:
1. While the Act includes services rendered "to or for any
person (including groups . . . )," since the Act is to be construed
to cover only "fees," and not "taxes,"
National Cable
Television Assn. v. United States, ante, p.
415 U. S. 336, the
"fee" presupposes an application for the agency's services, whether
by a single company or group of companies or the receipt of a
specific beneficial service. P.
415 U. S.
349
2. The Act is to be construed as authorizing a reasonable charge
to "each identifiable recipient for a measurable unit or amount of
Government service or property from which he derives a special
benefit," and as precluding a charge for services rendered
"when the identification of the ultimate beneficiary is obscure,
and the services can be primarily considered as benefitting broadly
the general public."
Pp.
415 U. S.
349-351.
151 U.S.App.D.C. 371, 467 F.2d 425, affirmed.
Page 415 U. S. 346
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, and REHNQUIST, JJ., joined.
MARSHALL., J., filed an opinion concurring in the result, in which
BRENNAN, J., joined,
post, p.
415 U. S. 352.
BLACKMUN and POWELL, JJ., took no part in the decision of the
case.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case, companion to
National Cable Television Assn. v.
United States, ante, p.
415 U. S. 336,
raises another important problem of construction of the provisions
of the Independent Offices Appropriation Act, 1952, Tit. 5, 65
Stat. 290, 31 U.S.C. § 483a. The Federal Power Commission
established filing fees under the Natural Gas Act and under the
Federal Power Act. These filing fees have not been challenged. What
was challenged were annual assessments under both Acts, levied in
an effort of the agency to recoup some of the remaining costs under
the two Acts.
With respect to electric utilities, the Commission determines
each year the costs of administering the Federal Power Act. The
costs associated with the Commission's efforts to promote the
co-ordination and
Page 415 U. S. 347
reliability of nonjurisdictional electric systems are not
included. The Commission also deducts from administration costs the
costs associated with services rendered to electric systems not
subject to the Commission's jurisdiction and the amount received
during the year from filing fees. The remaining balance is assessed
against jurisdictional utilities [
Footnote 1] in proportion to their wholesale sales and
interchange of electricity. In 1971, these companies had gross
revenues of some $21 billion and net income of nearly $4 billion.
The annual assessment challenged here involved 1973 and for all
such electric companies was $5 million or 0.024% of gross revenue
and 0.14% of net income.
As respects natural gas companies, the Commission determines
each year the costs of administering the natural gas pipeline
programs under the Natural Gas Act, 52 Stat. 821, 15 U.S.C. § 717
et seq. These costs, after deducting amounts received from
filing fees, are assessed against all natural gas companies with
annual operating revenues of $1,000,000 or more in proportion to
their deliveries of natural gas in interstate commerce. In
addition, all natural gas companies required to file an annual
report on their total gas supply (18 CFR § 260.7) are assessed
one-tenth of a mill for each thousand cubic feet of new reserves of
natural gas certificated each year to support the cost of the
producer certificate program.
Page 415 U. S. 348
The Commission in its report, 45 F.P.C. 440 and 964, said as
respects both electric utilities and natural gas companies that
regulations have provided "the foundation for the sound financial
condition which public utilities and natural gas companies have
achieved."
Id. at 445. It mentioned the "industry-wide
recognition of the benefits accruing from only one facet of the
Commission's activities -- the adoption of a uniform accounting
system."
Id. at 445 n. 5. The Commission, while. noting
that its regulatory activities were beneficial to consumers, added
that its actions
"have redounded to the benefit of both industries by creating
the economic climate for greater usage of the services of the
regulated companies which, in turn, have further strengthened their
financial stability and their ability to sell debt and equity
securities required for capital additions to meet ever-increasing
demands."
Id. at 445.
As respects electric utilities, it noted that its regime was
"systemwide and beneficial" to the companies.
Id. at 966.
As respects natural gas pipelines, it listed its activities that
were beneficial to them:
"the issuance of temporary certificates to expedite deliveries,
the elimination of indefinite price escalation provisions, and the
control over the quality of natural gas to be delivered and the
length of the period in which supplies may be delivered where
advance payments are made by the pipelines."
Id. at 967.
On petitions for review, the Court of Appeals set aside that
portion of the Commission's order establishing annual charges, 151
U.S.App.D.C. 371, 467 F.2d 425. The case is here on a petition for
certiorari, 411 U.S. 981.
Page 415 U. S. 349
The Act in question, 31 U.S.C. § 483a, authorizes the head of
each federal agency to prescribe a "fee, charge, or price" for
any
"benefit, privilege, . . . license, permit, certificate,
registration or similar thing of value . . . provided . . . by
[the] Federal agency . . . for any person (including groups, . . .
corporations . . . )"
which he determines
"to 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. . . ."
The Court of Appeals held that whole industries are not in the
category of those who may be assessed, the thrust of the Act
reaching only specific charges for specific services to specific
individuals or companies. We agree with the Court of Appeals.
The report on the Act, H.R.Rep. No. 384, 82d Cong., 1st Sess.,
2, states that
"[t]he Committee is concerned that the Government is not
receiving full return from many of the services which it renders to
special beneficiaries."
(Emphasis added.) It is true that the Act includes services
rendered "to or for any person (including groups . . .)." But if we
are to construe the Act to cover only "fees," and not "taxes" -- as
we held should be done in the
National Cable Television
case,
ante. p.
415 U. S. 336 --
the "fee" presupposes an application, whether by a single company
or by a group of companies. The Office of Management and Budget
(then known as the Bureau of the Budget) issued a circular in 1959
[
Footnote 2] construing the
Act. That circular stated that a reasonable charge
"should be made to each
identifiable recipient for a
measurable unit or amount of Government service or property from
which he derives a special benefit. [
Footnote 3] "
Page 415 U. S. 350
(Emphasis added.) The circular also states that no charge should
be made for services rendered,
"when the identification of the ultimate beneficiary is obscure
and the service can be primarily considered as benefitting broadly
the general public. [
Footnote
4] "
Page 415 U. S. 351
We believe that is the proper construction of the Act. Though it
greatly narrows the Act from the dimensions urged by the
Commission, it keeps it within the boundaries of the "fee" system
and away from the domain of "taxes" toward which the Commission's
"economic climate" argument would lead. Some of the assessments
made by the Commission under its formula would be on companies
which had no proceedings before the Commission during the year in
question. The "identifiable recipient" of a unit of service from
which "he derives a special benefit," to quote the Office of
Management and Budget, does not describe members of an industry
which have neither asked for nor received the Commission's services
during the year in question. A blanket ruling by the Commission,
say on accounting practices, may not be the result of an
application. But each member of the industry which is required to
adopt the new accounting system is an "identifiable recipient" of
the service, and could be charged a fee, if the new system was
indeed beneficial to the members of the industry. There may well be
other variations of a like nature which would warrant the fixing of
a "fee" for services rendered. But what was done here is not within
the scope of the Act. Hence, the judgment of the Court of Appeals
is
Affirmed.
MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL took no part in the
decision of this case.
Page 415 U. S. 352
[
Footnote 1]
Part I of the Federal Power Act covering licenses to
hydroelectric companies,
see 16 U.S.C. § 797
et
seq., is not involved in this litigation, only Parts II, 49
Stat. 847, 16 U.S.C. § 824
et seq., and III, 49 Stat. 854,
16 U.S.C. § 825
et seq. Moreover, the "jurisdictional"
aspect of a public utility's activities refers,
inter
alia, to the transmission of electric energy in interstate
commerce and to the sale of electric energy at wholesale in
interstate commerce as contained in § 201 of the Act, 49 Stat. 847,
16 U.S.C. § 824
et seq., the provision that filled the gap
created by
Public Utilities Comm'n v. Attleboro Steam &
Electric Co., 273 U. S. 83.
See United States v. Public Utilities Comm'r, 345 U.
S. 295.
[
Footnote 2]
Budget Circular No. A-25, Sept. 23, 1959.
[
Footnote 3]
The circular goes on to state that the services include agency
action which
"provides special benefits . . . above and beyond those which
accrue to the public at large. . . . For example, a special benefit
will be considered to accrue and a charge should be imposed when a
Government-rendered service:"
"(a) Enables the beneficiary to obtain more immediate or
substantial gains or values (which may or may not be measurable in
monetary terms) than those which accrue to the general public
(
e.g., receiving a patent, crop insurance, or a license to
carry on a specific business); or"
"(b) Provides business stability or assures public confidence in
the business activity of the beneficiary (
e.g.,
certificates of necessity and convenience for airline routes, or
safety inspections of craft); or"
"(c) Is performed at the request of the recipient and is above
and beyond the services regularly received by other members of the
same industry or group, or of the general public (
e.g.,
receiving a passport, visa, airman's certificate, or an inspection
after regular duty hours)."
[
Footnote 4]
Since oral argument, we have been advised by the Solicitor
General that, of all federal agencies "having industry-wide
regulatory authority," there are two, other than the Federal Power
Commission and the Federal Communications Commission, which impose
"annual industry-wide fees analogous" to those in the instant case.
The Solicitor General summarizes the actions of the other two
federal agencies as follows:
"The fee schedule of the Atomic Energy Commission is set forth
at 10 C.F.R. [§§] 170.21 and 170.31, and was last revised on
October 29, 1973 (38 Fed.Reg. 30254-30255). Under that schedule,
operators of nuclear power reactors are subject to a minimum annual
fee of $20,000 and operators of other nuclear facilities are
subject to annual fees ranging from $8,500 to $215,000. Holders of
materials licenses are assessed annual fees of up to $27,000. The
Commission estimates that approximately $7 million will be
recovered from these annual fees in fiscal year 1974. The
Commission's fee schedule, including annual fees, was first adopted
in 1968."
"The Securities and Exchange Commission imposes an annual fee of
$100 on each of the approximately 1100 investment advisers
registered with it under the Investment Advisors Act of 1940, 15
U.S.C. [§] 80b-1
et seq. See 17 C.F.R. [§]
275.203-3(b). This fee was first adopted in 1972."
This statement covers only fees imposed under Tit. 5, 31 U.S.C.
§ 483a, not those authorized "under more specific grants of
statutory authority."
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
concurring in the result in No. 72-1162 and dissenting in No.
72-948,
ante, p.
415 U. S. 336.
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 CAT 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. 353
been virtually abandoned by the Court for all practical
purposes, [
Footnote 2/1] 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,
389 U. S. 272
(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. 726
(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 decision,
Page 415 U. S. 354
the Court had not relied upon
Schechter Poultry Corp. v.
United States, 295 U. S. 495
(1935), almost since the day it was decided. [
Footnote 2/2]
I have no doubt -- and I suspect that a majority of the Court
would agree -- that Congress could constitutionally authorize the
Commissions to impose annual charges of the sort involved here.
Surely the congressionally prescribed standards, permitting
imposition of fees for work done or service or benefit provided if
they are "fair and equitable" taking into account "cost to the
Government, value to the recipient, [and] public policy," are
sufficiently definite to withstand any conceivable delegation
objection.
See, e.g., Yakus v. United States, 321 U.
S. 414,
321 U. S.
423-427 (1944);
Lichter v. United States,
334 U. S. 742,
334 U. S.
783-786 (1948). I therefore see no reason to construe
the statute in an artificially narrow way to avoid nonexistent
constitutional difficulties.
Even on a neutral reading of the statute and its legislative
history, however, I am convinced that Congress did not intend to
authorize industry-wide annual assessments like those at issue
here. The movement in Congress to encourage Government agencies to
establish fees to recover some of the costs of providing services
to special beneficiaries began in 1950 with a study of the Senate
Committee on Expenditures in the Executive Branch which culminated
in a report to Congress on "Fees for Special Services." S.Rep. No.
2120, 81st Cong., 2d Sess. (1950). This report concluded that fees
should be charged for agency services the benefits of which accrued
wholly or primarily to special interests.
Id. at 3-4. In
particular, the report pointed out that the FCC "renders a
tremendous variety of services, a
Page 415 U. S. 355
substantial number of which would lend themselves to equitable
fees."
Id. at 4. The report listed the type of services
for which assessment of fees would be appropriate: radio station
construction permits, radio station operating licenses and
renewals, authorization of assignment or transfer of licenses,
radio operator licenses, and certificates of public convenience and
necessity.
Id. at 11. [
Footnote 2/3]
On the other hand, the report was careful to point out the
limited nature of its recommendations. It emphasized that it was
not proposing that Government regulation in general be made
self-sustaining by shifting the costs to those regulated:
"There has been no quarrel with the philosophy governing the
study that those who receive the benefit of services rendered by
the Government especially for them should pay the costs thereof. In
the several staff reports and press releases which have been
issued, occasion has been taken to reiterate that philosophy and to
give reassurance that there is no thought here to establish a
system of fees for fundamental Government services, but only to
explore the feasibility and fairness of shifting to special
beneficiaries the expense now being borne for them by the taxpayers
at large."
Id. at 3.
These themes were reiterated during the 1951 hearings which led
directly to enactment of the Independent Offices Appropriation Act,
1952. Hearings on Independent Offices Appropriations for 1952
before the Subcommittee on Independent Offices of the House
Committee on Appropriations, 82d Cong., 1st Sess. (1951). The
questions of the committee members reflected their
Page 415 U. S. 356
concern that the regulatory agencies were not recouping any part
of the cost of services which benefited particular special
interests. But it is apparent that the Committee had in mind
imposition of fees for issuance of licenses,
id. at 281,
681, certificates of public convenience and necessity,
id.
at 281, 524, and the like. And it was recognized that, in the
absence of this sort of special benefit, imposition of the cost of
regulation on those regulated represented a different philosophical
approach, as to which there had been in the past substantial
resistance.
Id. at 730.
The actual language of the Appropriation Act is quite general,
and is certainly capable of varying interpretations. But the
intended content of the statute's authorization of fees to be
charged for
"any work, service publication, report, document, benefit,
privilege, authority, use, franchise, license, permit, certificate,
registration or similar thing of value or utility"
can be gleaned from this legislative history. When the Committee
Report expressed its concern that "the Government is not receiving
full return from many of the services which it renders to special
beneficiaries," H.R.Rep. No. 384, 82d Cong., 1st Sess., 2 (1951),
and suggested that "fees could be charged for other services" "of
the type here under consideration,"
id. at 3, I think that
it contemplated imposition of application fees, registration fees,
and fees for grants of licenses, permits, or other similar
authorizations. This interpretation is consistent with the
statutory language, with its long enumeration of specific, readily
identifiable, and discrete Commission actions for which fees can be
charged. This interpretation is consistent, also, with the
explanation of the statute on the floor of the House offered by
Representative Yates, in which he cited the award of franchises,
licenses, certificates of public convenience and necessity, and
construction permits as
Page 415 U. S. 357
examples of benefits for which fees could appropriately be
charged by the FCC. 97 Cong.Rec. 4809 (1951).
I see nothing in the legislative history which suggests any
broader interpretation of the concept of "benefit" under the Act.
On the contrary, since the broader view that the full cost of
regulation should be assessed those subject to the agency's
jurisdiction in the absence of a "special benefit" would have
represented a controversial policy choice, I think that the very
lack of debate over this provision of the Act and the ease with
which it passed compel the more limited interpretation. The
Committee Report itself noted that more "basic" changes in agency
fee practice would have to await further study by congressional
committees and additional legislation. H.R.Rep. No. 384, 82d Cong.,
1st Sess., 2-3 (1951).
I therefore do not believe that the creation of an "economic
climate" which fosters the growth of a regulated industry is a
sufficiently specific, discrete benefit within the meaning of the
Appropriation Act to justify imposition of a fee. Nor do I think
that this benefit is conferred upon a sufficiently identifiable
recipient to be the basis for assessment of a fee. Accordingly, I
agree with the Court's construction of the Act,
ante at
415 U. S.
349-350, and concur in the result in this case.
I cannot agree, however, with the result in No. 72-948,
National Cable Television Assn. v. United States, ante, p.
415 U. S. 336. In
view of the Court's conclusion in No. 72-1162, I am mystified as to
how the Court can reach its apparent, though completely
unexplained, holding in No. 72-948 that operators of CATV systems
may receive "special benefits" sufficient to sustain imposition of
an annual fee under the Appropriation Act.
Ante at
415 U. S. 343.
In 1970, when the fees at issue here were established, FCC
regulation of CATV was quite limited. CATV operators did not
receive licenses or any similar authorization from the
Commission.
Page 415 U. S. 358
Rather, their franchises were generally awarded by state
authorities, to whom the CATV operators pay franchise fees.
Although FCC regulations prohibited carriage of distant signals
into larger television markets unless Commission authorization was
obtained, 47 CFR § 74.1107 (1968), [
Footnote 2/4] carriage of local signals as well as
distant signals into smaller markets was permitted, unless
objections were raised, without the need for approval by the
Commission. 47 CFR §§ 74.1105(a), (c) (1968). Many of the CATV
operators against whom these annual charges were assessed had no
contact at all with the Commission during 1970, and some had never
had any dealings with the Commission. The only other FCC
regulations of CATV in 1970 pointed to by the Solicitor General are
regulations which prohibit telephone companies and television
broadcasters from entering the CATV field. [
Footnote 2/5]
In my view, the mere existence of such regulation cannot justify
the annual fees imposed in this case. While these regulations may
have been of some benefit to the CATV industry in a very broad
sense, I regard the FCC's argument on this point as identical to
the FPC's
Page 415 U. S. 359
"economic climate" argument rejected by the Court in No.
72-1162. I can see no specific benefit provided or service rendered
by the Commission on the order of the grant of a license or
certificate, processing of an application, or even provision of a
new and useful accounting system. Nor do I believe that the
benefits of FCC regulation have been conferred on any identifiable
recipient; I would think this a classic case where
"'the identification of the ultimate beneficiary is obscure, and
the services can be primarily considered as benefiting broadly the
general public.'"
Ante at 350.
I would therefore hold that the annual fees imposed in both
these cases were not authorized by the statute. But since the Court
apparently holds otherwise, and goes on to discuss the standards to
be applied by the FCC in setting fees under the statute, I think it
appropriate to express my views on this issue. I cannot agree with
the Court that the only factor which the Commission may consider in
determining the amount of the fees is the "value to the recipient."
The statute provides that the fee must 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."
This is a perfectly clear and intelligible standard, and I see
no reason why, assuming a proper occasion for imposition of a fee,
the Commission is not entitled to weigh each of the statutory
considerations. It may well be true that the Commission here gave
undue emphasis to one of the statutory factors, "cost to the
Government." But the Court's response, to require that undue,
seemingly exclusive reliance be placed on the standard of "value to
the recipient" is, in my opinion, equally erroneous. It is also
quite unrealistic and unworkable: how is the Commission to
determine whether to set the fee at 1%, 5%, or 50% of the "value to
the
Page 415 U. S. 360
recipient" unless it is also free to consider such other factors
as "cost to the Government" and "public policy"?
I would leave the Commission free to consider all the statutory
standards in setting its fees. Certainly the Commission should be
free to consider "cost to the Government," [
Footnote 2/6] as well as the statutory mandate that the
Commission "be self-sustaining to the full extent possible." It
could not be clearer, from the language of the statute and from its
genesis, that Congress intended these factors to be considered by
the Commissions in setting their fee schedules. If the Court
seriously believes that this somehow presents a substantial
constitutional problem, then the constitutional issue should be
squarely faced and resolved; it should not be permitted to justify
the Court's rewriting of the statute contrary to congressional
intent.
I would affirm the judgment of the Court of Appeals in No.
72-1162 and reverse the judgment in No. 72-948.
[
Footnote 2/1]
"Lawyers who try to win cases by arguing that congressional
delegations are unconstitutional almost invariably do more harm
than good to their clients' interests. Unrealistic verbiage in some
of the older judicial opinions should not now be taken seriously.
The effective law is in accord with a 1940 statement of the Supreme
Court: 'Delegation by Congress has long been recognized as
necessary in order that the exertion of legislative power does not
become a futility.' [
Sunshine Anthracite Coal Co. v.
Adkins, 310 U. S. 381,
310 U. S.
398 (1940).] Much of the judicial talk about requirement
of standards is contrary to the action the Supreme Court takes when
delegations are made without standards. The vaguest of standards
are held adequate, and various delegations without standards have
been upheld. . . ."
"In only two cases in all American history have congressional
delegations to public authorities been held invalid. Neither
delegation was to a regularly constituted administrative agency
which followed an established procedure designed to afford the
customary safeguards to affected parties. The
Panama case
[
Panama Refining Co. v. Ryan, 293 U. S.
388 (1935)] was influenced by exceptional executive
disorganization, and, in absence of such a special factor, would
not be followed today. The
Schechter case [
Schechter
Poultry Corp. v. United States, 295 U. S.
495 (1935)] involved excessive delegation of the kind
that Congress is not likely again to make. . . ."
"In absence of palpable abuse or true congressional abdication,
the non-delegation doctrine to which the Supreme Court has in the
past often paid lip service is without practical force."
1 K. Davis, Administrative Law Treatise § 2.01 (1958) (footnotes
omitted).
[
Footnote 2/2]
The last time that the Court relied upon
Schechter
Poultry was in
Carter v. Carter Coal Co.,
298 U. S. 238
(1936).
[
Footnote 2/3]
Similarly, as to the Federal Power Commission, the report
suggested that fees could be charged for issuance of licenses and
certificates of public convenience.
Id. at 12.
[
Footnote 2/4]
It would seem clear that fees could appropriately be imposed
under the Appropriation Act in connection with application for or
issuance of such Commission authorization. However, no such fees
are at issue in this case.
[
Footnote 2/5]
Extensive new regulations of CATV were promulgated in 1972. 37
Fed.Reg. 320 (Feb. 12, 1972). These regulations prescribe in
considerable detail the provisions of franchises granted by local
authorities to CATV operators, and also limit the franchise fees
which my be charged by the localities in which CATV stations
operate. Most important for present purposes, the new regulations
also provide that a CATV operator must obtain an FCC certificate of
compliance before commencing operations; existing cable systems
must obtain a certificate of compliance by March 31, 1977. 47 CFR §
76.11(b) (1973). While these new regulations will undoubtedly
affect the question of the permissibility of fees imposed for
future years, they cannot retroactively validate fees imposed for
1970.
[
Footnote 2/6]
In my view, "cost to the Government" comprehends the cost of FCC
regulation of the industry as well as the cost of processing a
specific application. While the existence of such regulation is not
itself sufficient under the present statute to sustain imposition
of a fee, it will often be beneficial to the industry -- as the
Government's "economic climate" argument suggests -- and will play
a role in enhancing the "value to the recipient" of the license or
other authorization. It is therefore neither unreasonable nor
inconsistent with the statutory intent that the contribution of
this regulation be considered.