Community antenna television (CATV) systems receive television
broadcast signals, amplify them, transmit them by cable or
microwave, and distribute them by wire to their subscribers'
receivers. In 1959, the Federal Communications Commission (FCC),
although it found CATV "related to interstate transmission," stated
that it "did not intend to regulate CATV," and that it preferred to
recommend legislation which would impose specified requirements
upon CATV systems. Such legislation was proposed, but not enacted.
The CATV industry has had an explosive growth, has increased
substantially the signal transmission range, and has been bringing
signals from selected broadcasting areas into metropolitan centers.
Since 1960, the FCC has gradually asserted jurisdiction over CATV,
and, in 1965, following hearings, the FCC issued revised rules,
applicable to cable and microwave CATV systems, to govern the
carriage of local signals and the nonduplication of local
programming. The FCC banned CATV transmission of distant signals
into the 100 largest television markets (except for such service as
existed on February 15, 1966, or unless the FCC found the service
would "be consistent with the public interest"), and created
summary procedures for applications for separate or additional
relief. Petitioner Midwest Television applied for special relief,
alleging that respondents' CATV systems transmitted signals from
Los Angeles into the San Diego area, adversely affecting Midwest's
San Diego station. The FCC, after considering the petition and
responsive pleadings, restricted the expansion of respondents'
service in areas in which they had not operated on February 15,
1966, pending hearings on the merits of Midwest's complaint. The
Court of Appeals held that the FCC lacked authority under the
Communications Act of 1934 to issue such order.
Held:
1. The FCC has authority under the Act to regulate CATV systems.
Pp.
392 U. S.
167-178.
Page 392 U. S. 158
(a) The FCC has broad authority over "all interstate and foreign
communication by wire or radio," which includes CATV systems as
they are encompassed within the term "communication by wire or
radio," and there is no doubt they are engaged in interstate
communication. Pp.
392 U. S.
167-169.
(b) The FCC's requests for legislation have no significant
bearing on the resolution of this issue. Pp.
392 U. S.
169-171.
(c) The FCC has reasonably found that the successful performance
of its responsibilities for the orderly development of local
television broadcasting demands prompt and efficacious regulation
of CATV, and, in the absence of compelling evidence that Congress
intended otherwise, administrative action imperative for an
agency's ultimate purposes should not be prohibited.
Permian
Basin Area Rate Cases, 390 U. S. 747,
390 U. S. 780.
Pp.
392 U. S.
172-178.
(d) The FCC's authority recognized here is restricted to that
reasonably ancillary to the effective performance of its
responsibilities for the regulation of television broadcasting. P.
392 U.S. 178.
2. The FCC had authority to issue the prohibitory order in this
case. Pp.
392 U.S.
178-181.
(a) The order was designed merely to preserve the situation as
of the time of issuance, and it was not, in form or function, a
cease and desist order that must issue under § 312 of the Act, and
which requires a hearing or a waiver of the right thereto. Pp.
179-180.
(b) The FCC has authority to issue "such orders . . . as may be
necessary in the execution of its functions," and this order for
interim relief pending hearings to determine appropriate action did
not exceed or abuse its authority under the Act. Pp.
392 U. S.
180-181.
378 F.2d 118, reversed and remanded.
Page 392 U. S. 159
MR. JUSTICE HARLAN delivered the opinion of the Court.
These cases stem from proceedings conducted by the Federal
Communications Commission after requests by Midwest Television
[
Footnote 1] for relief under
§§ 74.1107 [
Footnote 2] and
Page 392 U. S. 160
74.1109 [
Footnote 3] of the
rules promulgated by the Commission for the regulation of community
antenna television (CATV) systems. Midwest averred that
respondents' CATV systems transmitted the signals of Los Angeles
broadcasting stations into the San Diego area, and thereby had,
inconsistently with the public interest, adversely affected
Midwest's San Diego station. [
Footnote 4] Midwest sought an appropriate order limiting
the carriage of such signals by respondents' systems. After
consideration of the petition and of various responsive pleadings,
the Commission restricted the expansion of respondents' service in
areas in which they had not operated on February 15, 1966, pending
hearings to be conducted on the merits of Midwest's complaints.
[
Footnote 5] 4 F.C.C.2d
612.
Page 392 U. S. 161
On petitions for review, the Court of Appeals for the Ninth
Circuit held that the Commission lacks authority under the
Communications Act of 1934, 48 Stat. 1064, 47 U.S.C. § 151, to
issue such an order. [
Footnote
6] 378 F.2d 118. We granted certiorari to consider this
important question of regulatory authority. [
Footnote 7] 389 U.S. 911. For reasons that follow,
we reverse.
I
CATV systems receive the signals of television broadcasting
stations, amplify them, transmit them by cable or microwave, and
ultimately distribute them by wire to the receivers of their
subscribers. [
Footnote 8] CATV
systems
Page 392 U. S. 162
characteristically do not produce their own programming,
[
Footnote 9] and do not
recompense producers or broadcasters for use of the programming
which they receive and redistribute. [
Footnote 10] Unlike ordinary broadcasting stations, CATV
systems commonly charge their subscribers installation and other
fees. [
Footnote 11]
The CATV industry has grown rapidly since the establishment of
the first commercial system in 1950. [
Footnote 12] In the late 1950's, some 50 new systems were
established each year; by 1959, there were 550 "nationally known
and identified" systems serving a total audience of 1,500,000 to
2,000,000 persons. [
Footnote
13] It has been more recently estimated that "new systems are
being founded at the rate of more than one per day, and . . .
subscribers . . . signed on at the rate of 15,000 per month."
[
Footnote 14] By late 1965,
it was reported that there were 1,847 operating CATV systems, that
758 others were franchised but not yet in operation, and that there
were 938 applications
Page 392 U. S. 163
for additional franchises. [
Footnote 15] The statistical evidence is incomplete, but,
as the Commission has observed, "whatever the estimate, CATV growth
is clearly explosive in nature." Second Report and Order, 2
F.C.C.2d 725, 738, n. 15
CATV systems perform either or both of two functions. First,
they may supplement broadcasting by facilitating satisfactory
reception of local stations in adjacent areas in which such
reception would not otherwise be possible, and second, they may
transmit to subscribers the signals of distant stations entirely
beyond the range of local antennae. As the number and size of CATV
systems have increased, their principal function has more
frequently become the importation of distant signals. [
Footnote 16] In 1959, only 50
systems employed microwave relays, and the maximum distance over
which signals were transmitted was 300 miles; by 1964, 250 systems
used microwave, and the transmission distances sometimes exceeded
665 miles. First Report and Order, 38 F.C.C. 683, 709. There are
evidently now plans
"to carry the programing of New York City independent stations
by cable to . . . upstate New York, to Philadelphia, and even as
far as Dayton. [
Footnote
17]"
And see Channel
Page 392 U. S. 164
9 Syracuse, Inc. v. F.C.C., 128 U.S.App.D.C. 187, 385
F.2d 969;
Hubbard Broadcasting, Inc. v. F.C.C., 128
U.S.App.D.C.197, 385 F.2d 979. Thus,
"while the CATV industry originated in sparsely settled areas
and areas of adverse terrain . . . , it is now spreading to
metropolitan centers. . . ."
First Report and Order,
supra, at 709. CATV systems,
formerly no more than local auxiliaries to broadcasting, promise
for the future to provide a national communications system in which
signals from selected broadcasting centers would be transmitted to
metropolitan areas throughout the country. [
Footnote 18]
The Commission has on various occasions attempted to assess the
relationship between community antenna television systems and its
conceded regulatory functions. In 1959, it completed an extended
investigation of several auxiliary broadcasting services, including
CATV.
CATV and TV Repeater Services, 26 F.C.C. 403.
Although it found that CATV is "related to interstate
transmission," the Commission reasoned that CATV systems are
neither common carriers nor broadcasters, and therefore are within
neither of the principal regulatory categories created by the
Communications Act.
Id. at 427-428. The Commission
declared that it had not been given plenary authority over "any and
all enterprises which happen to be connected with one of the many
aspects of communications."
Id. at 429. It refused to
premise regulation of CATV upon assertedly adverse consequences for
broadcasting, because it could not "determine where the impact
takes effect, although we recognize that it may well exist."
Id. at 431.
The Commission instead declared that it would forthwith seek
appropriate legislation "to clarify the situation."
Page 392 U. S. 165
Id. at 438. Such legislation was introduced in the
Senate in 1959, [
Footnote
19] favorably reported, [
Footnote 20] and debated on the Senate floor. [
Footnote 21] The bill was, however,
ultimately returned to committee. [
Footnote 22]
Despite its inability to obtain amendatory legislation, the
Commission has, since 1960, gradually asserted jurisdiction over
CATV. It first placed restrictions upon the activities of common
carrier microwave facilities that serve CATV systems.
See
Carter Mountain Transmission Corp., 32 F.C.C. 459,
aff'd, 321 F.2d 359. Finally, the Commission, in 1962,
conducted a rulemaking proceeding in which it reevaluated the
significance of CATV for its regulatory responsibilities. First
Order and Report,
supra. The proceeding was explicitly
restricted to those systems that are served by microwave, but the
Commission's conclusions plainly were more widely relevant. The
Commission found that
"the likelihood or probability of [CATV's] adverse impact upon
potential and existing service has become too substantial to be
dismissed."
Id. at 713-714. It reasoned that the importation of
distant signals into the service areas of local stations
necessarily creates "substantial competition" for local
broadcasting.
Id. at 707. The Commission acknowledged that
it could not "measure precisely the degree of . . . impact," but
found that "CATV competition can have a substantial negative effect
upon station audience and revenues. . . ."
Id. at
710-711.
The Commission attempted to "accommodat[e]" the
Page 392 U. S. 166
interests of CATV and of local broadcasting by the imposition of
two rules.
Id. at 713. First, CATV systems were required
to transmit to their subscribers the signals of any station into
whose service area they have brought competing signals. [
Footnote 23] Second, CATV systems
were forbidden to duplicate the programming of such local stations
for periods of 15 days before and after a local broadcast.
See
generally First Report and Order,
supra, at 719-730.
These carriage and nonduplication rules were expected to "insur[e]
many stations' ability to maintain themselves as their areas'
outlets for highly popular network and other programs. . . ."
Id. at 715. The Commission in 1965 issued additional
notices of inquiry and proposed rulemaking, by which it sought to
determine whether all forms of CATV, including those served only by
cable, could properly be regulated under the Communications Act. 1
F.C.C.2d 453. After further hearings, the Commission held that the
Act confers adequate regulatory authority over all CATV systems.
Second Report and Order,
supra, at 728-734. It promulgated
revised rules, applicable both to cable and to microwave CATV
systems, to govern the carriage of local signals and the
nonduplication of local programming. Further, the Commission
forbade the importation by CATV of distant signals into the 100
largest television markets, except insofar as such service was
offered on February 15, 1966, unless the Commission has
previously
Page 392 U. S. 167
found that it "would be consistent with the public interest,"
id. at 782;
see generally id. at 781-785,
"particularly the establishment and healthy maintenance of
television broadcast service in the area," 47 CFR § 74.1107(c).
Finally, the Commission created "summary, nonhearing procedures"
for the disposition of applications for separate or additional
relief. 2 F.C.C.2d at 764; 47 CFR § 74.1109. Thirteen days after
the Commission's adoption of the Second Report, Midwest initiated
these proceedings by the submission of its petition for special
relief.
II
We must first emphasize that questions as to the validity of the
specific rules promulgated by the Commission for the regulation of
CATV are not now before the Court. The issues in these cases are
only two: whether the Commission has authority under the
Communications Act to regulate CATV systems, and, if it has,
whether it has, in addition, authority to issue the prohibitory
order here in question. [
Footnote 24]
The Commission's authority to regulate broadcasting and other
communications is derived from the Communications Act of 1934, as
amended. The Act's provisions are explicitly applicable to "all
interstate and foreign communication by wire or radio. . . ." 47
U.S.C. § 152(a). The Commission's responsibilities are no more
narrow: it is required to endeavor to "make available . . . to all
the people of the United States a rapid, efficient, Nationwide, and
worldwide wire and radio communication service. . . ." 47 U.S.C. §
151. The
Page 392 U. S. 168
Commission was expected to serve as the "single Government
agency" [
Footnote 25] with
"unified jurisdiction" [
Footnote
26] and "regulatory power over all forms of electrical
communication, whether by telephone, telegraph, cable, or radio."
[
Footnote 27] It was for
this purpose given "broad authority." [
Footnote 28] As this Court emphasized in an earlier
case, the Act's terms, purposes, and history all indicate that
Congress "formulated a unified and comprehensive regulatory system
for the [broadcasting] industry."
F.C.C. v. Pottsville
Broadcasting Co., 309 U. S. 134,
309 U. S.
137.
Respondents do not suggest that CATV systems are not within the
term "communication by wire or radio." Indeed, such communications
are defined by the Act so as to encompass "the transmission of . .
. signals, pictures, and sounds of all kinds," whether by radio or
cable,
"including all instrumentalities, facilities, apparatus, and
services (among other things, the receipt, forwarding, and delivery
of communications) incidental to such transmission."
47 U.S.C. §§ 153(a), (b). These very general terms amply suffice
to reach respondents' activities.
Nor can we doubt that CATV systems are engaged in interstate
communication, even where, as here, the intercepted
Page 392 U. S. 169
signals emanate from stations located within the same State in
which the CATV system operates. [
Footnote 29] We may take notice that television
broadcasting consists in very large part of programming devised
for, and distributed to, national audiences; respondents thus are
ordinarily employed in the simultaneous retransmission of
communications that have very often originated in other States. The
stream of communication is essentially uninterrupted and properly
indivisible. To categorize respondents' activities as intrastate
would disregard the character of the television industry, and serve
merely to prevent the national regulation that "is not only
appropriate, but essential to the efficient use of radio
facilities."
Federal Radio Comm'n v. Nelson Bros. Co.,
289 U. S. 266,
289 U. S.
279.
Nonetheless, respondents urge that the Communications Act,
properly understood, does not permit the regulation of CATV
systems. First, they emphasize that the
Page 392 U. S. 170
Commission, in 1959 and again in 1966, [
Footnote 30] sought legislation that would have
explicitly authorized such regulation, and that its efforts were
unsuccessful. In the circumstances here, however, this cannot be
dispositive. The Commission's requests for legislation evidently
reflected in each instance both its uncertainty as to the proper
width of its authority and its understandable preference for more
detailed policy guidance than the Communications Act now provides.
[
Footnote 31] We have
recognized that administrative agencies should, in such situations,
be encouraged to seek from Congress clarification of the pertinent
statutory provisions.
Wong Yang Sung v. McGrath,
339 U. S. 33,
339 U. S.
47.
Nor can we obtain significant assistance from the various
expressions of congressional opinion that followed the Commission's
requests. In the first place, the views of one Congress as to the
construction of a statute adopted many years before by another
Congress have "very little, if any, significance."
Rainwater v.
United States, 356 U. S. 590,
356 U. S. 593;
United States v. Price, 361 U. S. 304,
361 U. S. 313;
Haynes v. United States, 390 U. S. 85,
390 U. S. 87, n.
4. Further, it is far from clear that Congress believed, as it
considered these requests for legislation, that the Commission did
not already possess regulatory authority over CATV. In 1959, the
proposed legislation was preceded by the Commission's declarations
that it "did not intend to regulate CATV," and that it preferred to
recommend
Page 392 U. S. 171
the adoption of legislation that would impose specified
requirements upon CATV systems. [
Footnote 32] Congress may well have been more troubled by
the Commission's unwillingness to regulate than by any fears that
it was unable to regulate. [
Footnote 33] In 1966, the Commission informed Congress
that it desired legislation in order to "confirm [its] jurisdiction
and to establish such basic national policy as [Congress] deems
appropriate." H.R.Rep. No. 1635, 89th Cong., 2d Sess., 16. In
response, the House Committee on Interstate and Foreign Commerce
said merely that it did not "either agree or disagree" with the
jurisdictional conclusions of the Second Report, and that "the
question of whether or not . . . the Commission has authority under
present law to regulate CATV systems is for the courts to decide. .
. ."
Id. at 9. In these circumstances, we cannot derive
from the Commission's requests for legislation anything of
significant bearing on the construction question now before us.
Second, respondents urge that § 152(a) [
Footnote 34] does not
Page 392 U. S. 172
independently confer regulatory authority upon the Commission,
but instead merely prescribes the forms of communication to which
the Act's other provisions may separately be made applicable.
Respondents emphasize that the Commission does not contend either
that CATV systems are common carriers, and thus within Title II of
the Act, or that they are broadcasters, and thus within Title III.
They conclude that CATV, with certain of the characteristics both
of broadcasting and of common carriers, but with all of the
characteristics of neither, eludes altogether the Act's grasp.
We cannot construe the Act so restrictively. Nothing in the
language of § 152(a), in the surrounding language, or in the Act's
history or purposes limits the Commission's authority to those
activities and forms of communication that are specifically
described by the Act's other provisions. The section itself states
merely that the "provisions of [the Act] shall apply to all
interstate and foreign communication by wire or radio. . . ."
Similarly, the legislative history indicates that the Commission
was given "regulatory power over all forms of electrical
communication. . . ." S.Rep. No. 781, 73d Cong., 2d Sess., 1.
Certainly Congress could not, in 1934, have foreseen the
development of community antenna television systems, but it seems
to us that it was precisely because Congress wished "to maintain,
through appropriate administrative control, a grip on the dynamic
aspects of radio transmission,"
F.C.C. v. Pottsville
Broadcasting Co., supra, at
309 U. S. 138,
that it conferred upon the Commission a "unified jurisdiction"
[
Footnote 35] and "broad
authority." [
Footnote 36]
Thus,
"[u]nderlying the whole [Communications Act] is recognition of
the rapidly fluctuating factors characteristic of the evolution of
broadcasting
Page 392 U. S. 173
and of the corresponding requirement that the administrative
process possess sufficient flexibility to adjust itself to these
factors."
F.C.C. v. Pottsville Broadcasting Co., supra, at
309 U. S. 138.
Congress, in 1934, acted in a field that was demonstrably "both new
and dynamic," and it therefore gave the Commission "a comprehensive
mandate," with "not niggardly, but expansive, powers."
National
Broadcasting Co. v. United States, 319 U.
S. 190,
319 U. S. 219.
We have found no reason to believe that § 152 does not, as its
terms suggest, confer regulatory authority over "all interstate . .
. communication by wire or radio." [
Footnote 37]
Moreover, the Commission has reasonably concluded that
regulatory authority over CATV is imperative if it is to perform
with appropriate effectiveness certain of its other
responsibilities. Congress has imposed upon the Commission the
"obligation of providing a widely dispersed radio and television
service," [
Footnote 38] with
a "fair, efficient, and equitable distribution" of service among
the
Page 392 U. S. 174
"several States and communities." 47 U.S.C. § 307(b). The
Commission has, for this and other purposes, been granted authority
to allocate broadcasting zones or areas, and to provide regulations
"as it may deem necessary" to prevent interference among the
various stations. 47 U.S.C. §§ 303(f), (h). The Commission has
concluded, and Congress has agreed, that these obligations require
for their satisfaction the creation of a system of local
broadcasting stations, such that "all communities of appreciable
size [will] have at least one television station as an outlet for
local self-expression." [
Footnote 39] In turn, the Commission has held that an
appropriate system of local broadcasting may be created only if two
subsidiary goals are realized. First, significantly wider use must
be made of the available ultra-high-frequency channels. [
Footnote 40] Second, communities
must be encouraged "to launch sound and
Page 392 U. S. 175
adequate programs to utilize the television channels now
reserved for educational purposes." [
Footnote 41] These subsidiary goals have received the
endorsement of Congress. [
Footnote 42]
The Commission has reasonably found that the achievement of each
of these purposes is "placed in jeopardy by the unregulated
explosive growth of CATV." H.R.Rep. No. 1635, 89th Cong., 2d Sess.,
7. Although CATV may in some circumstances make possible "the
realization of some of the [Commission's] most important goals,"
First Report and Order,
supra at 99, its importation of
distant signals into the service areas of local stations may also
"destroy or seriously degrade the service offered by a television
broadcaster,"
id. at 700, and thus ultimately deprive the
public of the various benefits of a system of local broadcasting
stations. [
Footnote 43] In
particular,
Page 392 U. S. 176
the Commission feared that CATV might, by dividing the available
audiences and revenues, significantly magnify the
characteristically serious financial difficulties of UHF and
educational television broadcasters. [
Footnote 44] The Commission acknowledged that it could
not predict with
Page 392 U. S. 177
certainty the consequences of unregulated CATV, but reasoned
that its statutory responsibilities demand that it "plan in advance
of foreseeable events, instead of waiting to react to them."
Id. at 701. We are aware that these consequences have been
variously estimated, [
Footnote
45] but must conclude that there is substantial evidence that
the Commission cannot "discharge its overall responsibilities
without authority over this important aspect of television
service." Staff of Senate Comm. on Interstate and Foreign Commerce,
85th Cong., 2d Sess., The Television Inquiry: The Problem of
Television Service for Smaller Communities 19 (Comm.Print
1959).
The Commission has been charged with broad responsibilities for
the orderly development of an appropriate system of local
television broadcasting. The significance of its efforts can
scarcely be exaggerated, for broadcasting is demonstrably a
principal source of information and entertainment for a great part
of the Nation's population. The Commission has reasonably found
that the successful performance of these duties demands prompt and
efficacious regulation of community antenna television systems. We
have elsewhere held that we may not,
"in the absence of compelling evidence that such was Congress'
intention . . . prohibit administrative action imperative for the
achievement of an agency's ultimate purposes."
Permian Basin Area Rate
Cases, 390 U.S.
Page 392 U. S. 178
747,
390 U. S. 780.
Compare National Broadcasting Co. v. United States, supra,
at
319 U. S.
219-220;
American Trucking Assns. v. United
States, 344 U. S. 298,
344 U. S. 311.
There is no such evidence here, and we therefore hold that the
Commission's authority over "all interstate . . . communication by
wire or radio" permits the regulation of CATV systems.
There is no need here to determine in detail the limits of the
Commission's authority to regulate CATV. It is enough to emphasize
that the authority which we recognize today under § 152(a) is
restricted to that reasonably ancillary to the effective
performance of the Commission's various responsibilities for the
regulation of television broadcasting. The Commission may, for
these purposes, issue "such rules and regulations and prescribe
such restrictions and conditions, not inconsistent with law," as
"public convenience, interest, or necessity requires." 47 U.S.C. §
303(r). We express no views as to the Commission's authority, if
any, to regulate CATV under any other circumstances or for any
other purposes.
III
We must next determine whether the Commission has authority
under the Communications Act to issue the particular prohibitory
order in question in these proceedings. In its Second Report and
Order,
supra, the Commission concluded that it should
provide summary procedures for the disposition both of requests for
special relief and of "complaints or disputes."
Id. at
764. It feared that, if evidentiary hearings were in every
situation mandatory, they would prove "time-consuming and
burdensome" to the CATV systems and broadcasting stations involved.
Ibid. The Commission considered that appropriate notice
and opportunities for comment or objection must be given, and it
declared that "additional procedures, such as oral argument,
evidentiary
Page 392 U. S. 179
hearing, or further written submissions" would be permitted "if
they appear necessary or appropriate. . . ."
Ibid.
See 47 CFR § 74.1109(f). It was under the authority of
these provisions that Midwest sought, and the Commission granted,
temporary relief.
The Commission, after examination of various responsive
pleadings but without prior hearings, ordered that respondents
generally restrict their carriage of Los Angeles signals to areas
served by them on February 15, 1966, pending hearings to determine
whether the carriage of such signals into San Diego contravenes the
public interest. The order does not prohibit the addition of new
subscribers within areas served by respondents on February 15 1966;
it does not prevent service to other subscribers who began
receiving service or who submitted an "accepted subscription
request" between February 15, 1966, and the date of the
Commission's order, and it does not preclude the carriage of San
Diego and Tijuana, Mexico, signals to subscribers in new areas of
service. 4 F.C.C.2d 612, 624-625. The order is thus designed simply
to preserve the situation as it existed at the moment of its
issuance.
Respondents urge that the Commission may issue prohibitory
orders only under the authority of § 312(b), by which the
Commission is empowered to issue cease and desist orders. We shall
assume that, consistent with the requirements of § 312(c), cease
and desist orders are proper only after hearing or waiver of the
right to hearing. Nonetheless, the requirement does not invalidate
the order issued in this case, for we have concluded that the
provisions of §§ 312(b), (c) are inapplicable here. Section 312(b)
provides that a cease and desist order may issue only if the
respondent "has violated or failed to observe" a provision of the
Communications Act or a rule or regulation promulgated by the
Commission under the Act's authority. Respondents here were not
found
Page 392 U. S. 180
to have violated or to have failed to observe any such
restriction; the question before the Commission was, instead, only
whether an existing situation should be preserved pending a
determination
"whether respondents' present or planned CATV operations are
consistent with the public interest and what, if any, action should
be taken by the Commission."
4 F.C.C.2d at 626. The Commission's order was thus not, in form
or function, a cease and desist order that must issue under §§
312(b), (c). [
Footnote
46]
The Commission has acknowledged that, in this area of rapid and
significant change, there may be situations in which its
generalized regulations are inadequate, and special or additional
forms of relief are imperative. It has found that the present case
may prove to be such a situation, and that the public interest
demands "interim relief . . . limiting further expansion," pending
hearings to determine appropriate Commission action. Such orders do
not exceed the Commission's authority. This Court has recognized
that "the administrative process [must] possess sufficient
flexibility to adjust itself" to the "dynamic aspects of radio
transmission,"
F.C.C. v. Pottsville Broadcasting Co.,
supra, at
309 U. S. 138,
and that it was precisely for that reason that Congress declined to
"stereotyp[e] the powers of the Commission to specific details. . .
."
National Broadcasting Co. v. United States, supra at
319 U. S. 219.
And compare American Trucking Assns. v. United States,
344 U. S. 298,
344 U. S. 311;
R. A. Holman & Co. v. S.E.C., 112 U.S.App.D.C. 43,
47-48, 299 F.2d 127,
Page 392 U. S. 181
131-132. Thus, the Commission has been explicitly authorized to
issue "such orders, not inconsistent with this [Act], as may be
necessary in the execution of its functions." 47 U.S.C. § 154(i).
See also 47 U.S.C. § 303(r). In these circumstances, we
hold that the Commission's order limiting further expansion of
respondents' service pending appropriate hearings did not exceed or
abuse its authority under the Communications Act. And there is no
claim that its procedure in this respect is in any way
constitutionally infirm.
The judgments of the Court of Appeals are reversed, and the
cases are remanded for further proceedings consistent with this
opinion
It is so ordered.
MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL took no part in the
consideration or decision of these cases.
* Together with No. 428,
Midwest Television, Inc., et al. v.
Southwestern Cable Co. et al., also on certiorari to the same
court.
[
Footnote 1]
Midwest's petition was premised upon its status as licensee of
KFMB-TV, San Diego, California. It is evidently also the licensee
of various other broadcasting stations.
See Second Report
and Order, 2 F.C.C.2d 725, 739.
[
Footnote 2]
47 CFR § 74.1107(a) provides that
"[n]o CATV system operating in a community within the predicted
Grade A contour of a television broadcast station in the 100
largest television markets shall extend the signal of a television
broadcast station beyond the Grade B contour of that station,
except upon a showing approved by the Commission that such
extension would be consistent with the public interest, and
specifically the establishment and healthy maintenance of
television broadcast service in the area. Commission approval of a
request to extend a signal in the foregoing circumstances will be
granted where the Commission, after consideration of the request
and all related materials in a full evidentiary hearing, determines
that the requisite showing has been made. The market size shall be
determined by the rating of the American Research Bureau, on the
basis of the net weekly circulation for the most recent year."
San Diego is the action's 54th largest television market.
Midwest Television, Inc., 11 Pike & Fischer Radio
Reg.2d 273, 276.
[
Footnote 3]
47 CFR § 74.1109 creates "procedures applicable to petitions for
waiver of the rules, additional or different requirements and
rulings on complaints or disputes." It provides that petitions for
special relief
"may be submitted informally, by letter, but shall be
accompanied by an affidavit of service on any CATV system, station
licensee, permittee, applicant, or other interested person who may
be directly affected if the relief requested in the petition should
be granted."
47 CFR § 74.1109(b). Provisions are made for comments or
opposition to the petition, and for rejoinders by the petitioner.
47 CFR §§ 74.1109(d), (e). Finally, the Commission
"may specify other procedures, such as oral argument,
evidentiary hearing, or further written submissions directed to
particular aspects, as it deems appropriate."
47 CFR § 74.1109(f).
[
Footnote 4]
Midwest asserted that respondents' importation of Los Angeles
signals had fragmented the San Diego audience, that this would
reduce the advertising revenues of local stations, and that the
ultimate consequence would be to terminate or to curtail the
services provided in the San Diego area by local broadcasting
stations. Respondents' CATV systems now carry the signals of San
Diego stations, but Midwest alleged that the quality of the
signals, as they are carried by respondents, is materially
degraded, and that this serves only to accentuate the fragmentation
of the local audience.
[
Footnote 5]
February 15, 1966, is the date on which grandfather rights
accrued under 47 CFR § 74.1107(d). The initial decision of the
hearing examiner, issued October 3, 1967, concluded that permanent
restrictions on the expansion of respondents' services were
unwarranted.
Midwest Television, Inc., 11 Pike &
Fischer Radio Reg.2d 273. The Commission has declined to terminate
its interim restrictions pending consideration by the Commission of
the examiner's decision.
Midwest Television, Inc., id. at
721.
[
Footnote 6]
The opinion of the Court of Appeals could be understood to hold
either that the Commission may not, under the Communications Act,
regulate CATV, or, more narrowly, that it may not issue the
prohibitory order involved here. We the the court's opinion, in
fact, to have encompassed both positions.
[
Footnote 7]
We note that the Court of Appeals for the District of Columbia
Circuit has concluded that the Communications Act permits the
regulation of CATV systems.
See Buckeye Cablevision, Inc. v.
F.C.C., 128 U.S.App.D.C. 262, 387 F.2d 220.
[
Footnote 8]
CATV systems are defined by the Commission for purposes of its
rules as
"any facility which . . . receives directly or indirectly over
the air and amplifies or otherwise modifies the signals
transmitting programs broadcast by one or more television stations
and distributes such signals by wire or cable to subscribing
members of the public who pay for such service, but such term shall
not include (1) any such facility which serves fewer than 50
subscribers, or (2) any such facility which serves only the
residents of one or more apartment dwellings under common
ownership, control, or management, and commercial establishments
located on the premises of such an apartment house."
47 CFR § 74.1101(a).
[
Footnote 9]
There is, however, no technical reason why they may not.
See Note, The Wire Mire: The FCC and CATV, 79 Harv.L.Rev.
366, 367. Indeed, the examiner was informed in this case that
respondent Mission Cable TV "intends to commence program
origination in the near future."
Midwest Television, Inc.,
supra, at 283.
[
Footnote 10]
The question whether a CATV system infringes the copyright of a
broadcasting station by its reception and retransmission of the
station's signals is presented in
Fortnightly Corp. v. United
Artists TV, Inc., No. 618, now pending before the Court.
[REPORTER's NOTE:
See post, p.
392 U. S.
390.]
[
Footnote 11]
The installation costs for CATV systems in 16 Connecticut
communities were, for example, found to range from $31 to $147 per
home. M. Seiden, An Economic Analysis of Community Antenna
Television Systems and the Television Broadcasting Industry 24
(1965).
[
Footnote 12]
CATV systems were evidently first established on a noncommercial
basis in 1949. H.R.Rep. No. 1635, 89th Cong., 2d Sess., 5.
[
Footnote 13]
CATV and TV Repeater Services, 26 F.C.C. 403, 408;
Note, The Wire Mire: The FCC and CATV,
supra at 368.
[
Footnote 14]
Note, The Wire Mire: The FCC and CATV,
supra, at
368.
[
Footnote 15]
Second Report and Order, 2 F.C.C.2d 725, 738. The
franchises are granted by state or local regulatory agencies. It
was reported in 1965 that two States, Connecticut and Nevada,
regulate CATV systems, and that some 86% of the systems are subject
at least to some local regulation. Seiden,
supra at 44-47.
See Conn.Gen.Stat.Rev. Tit. 16, c. 289 (1958); Nev.Stat.
1967, c. 458.
[
Footnote 16]
The term "distant signal" has been given a specialized
definition by the Commission, as a signal "which is extended or
received beyond the Grade B contour of that station." 47 CFR §
74.1101(i). The Grade B contour is a line along which good
reception may be expected 90% of the time at 50% of the locations.
See 47 CFR § 73.683(a)
[
Footnote 17]
Note, The Wire Mire: The FCC and CATV,
supra at 368
(notes omitted).
[
Footnote 18]
It has thus been suggested that
"a nationwide grid of wired CATV systems, interconnected by
microwave frequencies and financed by subscriber fees, may one day
offer a viable economic alternative to the advertiser supported
broadcast service."
Levin, New Technology and the Old Regulation in Radio Spectrum
Management, 56 Am.Econ.Rev. 339, 341 (Proceedings, May 1966).
[
Footnote 19]
See S. 2653, 86th Cong., 1st Sess.
[
Footnote 20]
S.Rep. No. 923, 86th Cong., 1st Sess.
[
Footnote 21]
See 106 Cong.Rec. 10416-10436, 10520-10548.
[
Footnote 22]
Id. at 10547. The Commission in 1966 made additional
efforts to obtain suitable modifications in the Communications Act.
See n 30,
infra.
[
Footnote 23]
See generally First Report and Order, supra, at
716-719. The Commission held that a CATV system must, within the
limits of its channel capacity, carry the signals of stations that
place signals over the community served by the system. The stations
are to be given priority according to the strength of the signal
available in the community, with the strongest signals given first
priority. Exceptions are made for situations in which there would
be substantial duplication or in which an independent or
noncommercial station would be excluded.
Id. at 717.
[
Footnote 24]
It must also be noted that the CATV systems involved in these
cases evidently do not employ microwave. We intimate no views on
what differences, if any, there might be in the scope of the
Commission's authority over microwave and nonmicrowave systems.
[
Footnote 25]
The phrase is taken from the message to Congress from President
Roosevelt, dated February 26, 1934, in which he recommended the
Commission's creation.
See H.R.Rep. No. 1850, 73d Cong.,
2d Sess., 1.
[
Footnote 26]
S.Rep. No. 781, 73d Cong., 2d Sess., 1.
[
Footnote 27]
Ibid. The Committee also indicated that there was a
"vital need" for such a commission, with jurisdiction "over all of
these methods of communication."
Ibid.
[
Footnote 28]
The phrase is taken from President Roosevelt's message to
Congress. H.R.Rep. No. 1850,
supra at 1. The House
Committee added that
"the primary purpose of this bill [is] to create such a
commission armed with adequate statutory powers to regulate all
forms of communication. . . ."
Id. at 3.
[
Footnote 29]
Respondents assert only that this "is subject to considerable
question." Brief for Respondent Southwestern Cable Co. 24, n. 25.
They rely chiefly upon the language of § 152(b), which provides
that nothing in the Act shall give the Commission jurisdiction over
"carriers" that are engaged in interstate communication solely
through physical connection, or connection by wire or radio, with
the facilities of another carrier, if they are not directly or
indirectly controlled by such other carrier. The terms and history
of this provision, however, indicate that it was "merely a
perfecting amendment" intended to
"obviate any possible technical argument that the Commission may
attempt to assert common carrier jurisdiction over point-to-point
communication by radio between two points within a single State. .
. ."
S.Rep. No. 1090, 83d Cong., 2d Sess., 1.
See also
H.R.Rep. No. 910, 83d Cong., 1st Sess. The Commission and the
respondents are agreed, we think properly, that these CATV systems
are not common carriers within the meaning of the Act.
See
47 U.S.C. § 153(h);
Frontier Broadcasting Co. v. Collier,
24 F.C.C. 251;
Philadelphia Television Broadcasting Co. v.
F.C.C., 123 U.S. App.D.C. 298, 359 F.2d 282;
CATV and TV
Repeater Services, supra, at 427-428.
[
Footnote 30]
See H.R. 13286, 89th Cong., 2d Sess. The bill was
favorably reported by the House Committee on Interstate and Foreign
Commerce, H.R.Rep. No. 1635, 89th Cong., 2d Sess., but failed to
reach the floor for debate.
[
Footnote 31]
See, for the legislation proposed in 1959,
CATV and
TV Repeater Services, supra, at 427-431, 438-439. The
Commission in 1966 explicitly stated in its explanation of its
proposed amendments to the Act that
"we believe it highly desirable that Congress . . . confirm [the
Commission's] jurisdiction and . . . establish such basic national
policy as it deems appropriate."
H.R.Rep. No. 1635,
supra, at 16.
[
Footnote 32]
See S.Rep. No. 923, 86th Cong., 1st Sess., 5-6.
[
Footnote 33]
Thus, the Senate Committee on Interstate and Foreign Commerce
observed in its 1959 Report that, although the Commission's staff
had recommended that authority be asserted over CATV, the
Commission had "long hesitated," and had only recently made clear
"that it did not intend to regulate CATV systems in any way
whatsoever." S.Rep. No. 923,
supra, at 5. Nonetheless, it
must be acknowledged that the debate on the Senate floor centered
on the broad question whether the Commission should have authority
to regulate CATV.
See, e.g., 106 Cong.Rec. 10426.
[
Footnote 34]
47 U.S.C. § 152(a) provides that
"[t]he provisions of this chapter shall apply to all interstate
and foreign communication by wire or radio and all interstate and
foreign transmission of energy by radio, which originates and/or is
received within the United States, and to all persons engaged
within the United States in such communication or such transmission
of energy by radio, and to the licensing and regulating of all
radio stations as hereinafter provided; but it shall not apply to
persons engaged in wire or radio communication or transmission in
the Canal Zone, or to wire or radio communication or transmission
wholly within the Canal Zone."
[
Footnote 35]
S.Rep. No. 781,
supra, at 1.
[
Footnote 36]
H.R.Rep. No. 1850,
supra, at 1.
[
Footnote 37]
Respondents argue, and the Court of Appeals evidently concluded,
that the opinion of the Court in
Regents v. Carroll,
338 U. S. 586,
supports the inference that the Commission's authority is limited
to licensees, carriers, and others specifically reached by the
Act's other provisions. We find this unpersuasive. The Court in
Carroll considered the very general contention that the
Commission had been given authority "to determine the validity of
contracts between licensees and others."
Id. at
338 U. S. 602.
It was concerned not with the limits of the Commission's authority
over a form of communication by wire or radio, but with efforts to
enforce a contract that had been repudiated upon the demand of the
Commission. The Court's discussion of the Commission's authority
under § 303 (r),
see id. at
338 U. S. 600,
must be read in that context, and, as thus read, it cannot be
controlling here.
[
Footnote 38]
S.Rep. No. 923,
supra, at 7. The Committee added that
"Congress and the people" have no particular interest in the
success of any given broadcaster, but if the failure of a station
"leaves a community with inferior service," this becomes "a matter
of real and immediate public concern."
Ibid.
[
Footnote 39]
H.R.Rep. No. 1559, 87th Cong., 2d Sess., 3; Sixth Report and
Order, 17 Fed.Reg. 3905.
And see Staff of the Senate Comm.
on Interstate and Foreign Commerce, 85th Cong., 2d Sess., The
Television Inquiry: The Problem of Television Service for Smaller
Communities 3-4 (Comm.Print 1959). The Senate Committee has
elsewhere stated that "[t]here should be no weakening of the
Commission's announced goal of local service." S.Rep. No. 923,
supra, at 7.
[
Footnote 40]
The Commission has allocated 82 channels for television
broadcasting, of which 70 are in the UHF portion of the radio
spectrum. This permits a total of 681 VHF stations and 1,544 UHF
stations. H.R.Rep. No. 1559,
supra, at 2. In December
1964, 454 VHF stations were on the air, 25 permittees were not
operating, and 11 applications were awaiting Commission action,
leaving 63 unreserved VHF allocations available. Seiden,
supra, 162, n. 11, at 10. At the same time, 90 UHF
stations were operating, 66 were assigned but not operating, 52
applications were pending before the Commission, and 1,108
allocations were still available.
Ibid. The Commission has
concluded that, in these circumstances, "an adequate national
television system can be achieved" only if more of the available
UHF channels are utilized. H.R.Rep. No. 1559,
supra, at
4.
[
Footnote 41]
S.Rep. No. 67, 87th Cong., 1st Sess., 8-9. The Committee
indicated that it was
"of utmost importance to the Nation that a reasonable
opportunity be afforded educational institutions to use television
as a noncommercial educational medium."
Id. at 3. Similarly, the House Committee on Interstate
and Foreign Commerce has concluded that educational television will
"provide a much needed source of cultural and informational
programing for all audiences. . . ." H.R.Rep. No. 1559,
supra, at 3. It is thus an essential element of "an
adequate national television system."
Id. at 4.
See
also H.R.Rep. No. 572, 90th Cong., 1st Sess.; S.Rep. No. 222,
90th Cong., 1st Sess.
[
Footnote 42]
Legislation was adopted in 1962 to amend the Communications Act
in order to require that all television receivers thereafter
shipped in interstate commerce for sale or resale to the public be
capable of receiving both UHF and VHF frequencies. 76 Stat. 150.
The legislation was plainly intended to assist the growth of UHF
broadcasting.
See H.R.Rep. No. 1559,
supra.
Moreover, legislation has been adopted to provide construction
grants and other assistance to educational television systems. 76
Stat. 68, 81 Stat. 365.
[
Footnote 43]
See generally Second Report and Order,
supra,
at 736-745. It is pertinent that the Senate Committee on Interstate
and Foreign Commerce feared even in 1959 that the unrestricted
growth of CATV would eliminate local broadcasting, and that, in
turn, this would have four undesirable consequences: (1) the local
community "would be left without the local service which is
necessary if the public is to receive the maximum benefits from the
television medium"; (2) the "suburban and rural areas surrounding
the central community may be deprived not only of local service,
but of any service at all"; (3) even "the resident of the central
community may be deprived of all service if he cannot afford the
connection charge and monthly service fees of the CATV system"; (4)
"[u]nrestrained CATV, booster, or translator operation might
eventually result in large regions, or even entire States, being
deprived of all local television service -- or being left, at best,
with nothing more than a highly limited satellite service." S.Rep.
No. 923,
supra, at 7-8. The Committee concluded that CATV
competition "does have an effect on the orderly development of
television."
Id. at 8.
[
Footnote 44]
The Commission has found that "we are in a critical period with
respect to UHF development. Most of the new UHF stations will face
considerable financial obstacles."
First Report and Order,
supra, at 712. It concluded that "one general factor giving
cause for serious concern,"
ibid., was that there is
"likely" to be a "severe" impact between new local stations,
particularly UHF stations, and CATV systems.
Id. at 713.
Further, the Commission believed that there was danger that CATV
systems would "siphon off sufficient local financial support" for
educational television, with the result that such stations would
fail, or not be established at all. It feared that "the loss would
be keenly felt by the public."
Second Report and Order,
supra, at 761. The Commission concluded that the hazards to
educational television were "sufficiently strong to warrant some
special protection. . . ."
Id. at 762. Similarly, a recent
study has found that CATV systems may have a substantial impact
upon station revenues, that many stations, particularly in small
markets, cannot readily afford such competition, and that, in
consequence, a "substantial percentage of potential new station
entrants, particularly UHF, are likely to be discouraged. . . ."
Fisher & Ferrall, Community Antenna Television Systems and
Local Television Station Audience, 80 Q.J.Econ. 227, 250.
[
Footnote 45]
Compare the following. Seiden,
supra, at
64-90; Note, The Federal Communications Commission and Regulation
of CATV, 43 N.Y.U.L.Rev. 117, 133-139; Note, The Wire Mire: The FCC
and CATV,
supra, at 376-383; Fisher & Ferrall,
supra. We note, in addition, that the dispute here is in
part whether local, advertiser-supported stations are an
appropriate foundation for a national system of television
broadcasting.
See generally Coase, The Economics of
Broadcasting and Government Policy, 56 Am.Econ.Rev. 440 (May 1966);
Greenberg, Wire Television and the FCC's Second Report and Order on
CATV Systems, 10 J.Law & Econ. 181.
[
Footnote 46]
Respondents urge that the legislative history of § 312(b)
indicates that the Commission may issue prohibitory orders only
under, and in conformity with, that section. We find this
unpersuasive. Nothing in that history suggests that the Commission
was deprived of its authority, granted elsewhere in the Act, to
issue orders "necessary in the execution of its functions." 47
U.S.C. § 154(i).
See also 47 U.S.C. § 303(r).
MR. JUSTICE WHITE, concurring in the result.
My route to reversal of the Court of Appeals is somewhat
different from the Court's. Section 2(a) of the Communications Act,
47 U.S.C. § 152(a), says that "
[t]he provisions of this
chapter shall apply to all interstate and foreign
communication by wire or radio. . . ." (Emphasis added.) I am
inclined to believe that this section means that the Commission
must generally base jurisdiction on other provisions of the Act.
This position would not, however, require invalidation of the
assertion of jurisdiction before us today. Section 301, 47 U.S.C. §
301, gives the Commission broad authority over broadcasting, and §
303, 47 U.S.C. § 303, confers authority to
"[m]ake such regulations not inconsistent with law as it may
deem necessary to prevent interference between stations and to
carry out the provisions of this chapter,"
and also the authority to establish areas or zones to be served
by any station. The Commission has ample
Page 392 U. S. 182
power under these provisions to prevent a Los Angeles television
broadcaster from interfering with broadcasting in San Diego. For
example, the Commission could stop a Los Angeles television station
from owning and operating a wire CATV system which carried the
station's signals into San Diego. The Commission should also be
able to prevent a third party from disrupting Commission-licensed
broadcasting in the San Diego market.
Even if §§ 301 and 303 in themselves furnish insufficient basis
for the Commission to enjoin extraneous interference with the San
Diego broadcasting scheme it has authorized, § 2(a),
supra, makes the provisions of the Act, including §§ 301
and 303, applicable to all wire and radio communication. Hence, the
Commission is authorized to regulate wire communications to
implement the ends of § 301 and 303, and authorized as well to use
its express authority over broadcasting to enforce its specific
powers over common carriers by wire.