Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,
concurring in the result in No. 72-1162 and dissenting in No.
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.
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.
, 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. 726
d 93 (1963);
North Dakota Pharmacy Board v. Snyder's Stores, 414 U.S. 156
not more so. It is hardly surprising that, until today's de-
Page 415 U.S.
cision, the Court had not relied upon Schechter Poultry Corp. v.
United States, 295
(1935), almost since the day it was decided. [Footnote 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 presribed 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
, 423- 427
(1944); Lichter v. United States, 334 U.S. 742
(1948). I therefore see no reason to construe the statute in an
artificially narrow way to avoid nonexistent constitutional
Even on a neutral reading of the statute and its legislative
history, however, I am convinced that Congress did not intend to
authorize industrywide 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.
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.
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.
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
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.
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 a '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, 415 U.S., at
349-350-1155, 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, 415 U.S. 336
, 39 L. Ed.
2d 370. 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. 315 U.S., at 343
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.
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),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. 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
Page 415 U.S.
'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 benefitting broadly the
general public." 315 U.S., 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.
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,'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.
'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
, 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.
() (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
(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).
The last time
that the Court relied upon Schechter Poultry was in Carter v.
Carter Coal Co., 298
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.
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.
regulations of CATV were promulgated in 1972. 37 Fed. Reg. 3280
(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 may be charged
by the localities in whch 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.
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