Document ID: A:\SWESTERN.TXT UNITED STATES ET AL. v. SOUTHWESTERN CABLE CO. ET AL. No. 363 SUPREME COURT OF THE UNITED STATES 392 U.S. 157; 88 S. Ct. 1994; 1968 U.S. LEXIS 3148; 20 L. Ed. 2d 1001; 1 Media L. Rep. 2247 March 12-13, 1968, Argued June 10, 1968, Decided * * Together with No. 428, Midwest Television, Inc., et al. v. Southwestern Cable Co. et al., also on certiorari to the same court. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. DISPOSITION: 378 F.2d 118, reversed and remanded. SYLLABUS: Community antenna television (CATV) systems receive television broadcast signal C), although it found CATV "related to interstate transmission," stated that it "did not i ut not enacted. The CATV industry has had an explosive growth, has increased substantiall jurisdiction over CATV, and in 1965, following hearings, the FCC issued revised rules, ap of distant signals into the 100 largest television markets (except [***2] for such servi ons for separate or additional relief. Petitioner Midwest Television applied for special r C, after considering the petition and responsive pleadings, restricted the expansion of re at the FCC lacked authority under the Communications Act of 1934 to issue such order. Hel 1. The FCC has authority under the Act to regulate CATV systems. Pp. 167-178. (a) The FCC has broad authority over "all interstate and foreign communication by wire communication. Pp. 167-169. (b) The FCC's requests for legislation have no significant [***3] bearing on the res (c) The FCC has reasonably found that the successful performance of its responsibilitie ress intended otherwise, administrative action imperative for an agency's ultimate purpose (d) The FCC's authority recognized here is restricted to that reasonably ancillary to t 2. The FCC had authority to issue the prohibitory order in this case. Pp. 178-181. (a) The order was designed merely to preserve the situation as of the time of issuance, Pp. 179-180. (b) The FCC has authority to issue "such orders . . . as may be necessary in the execut ct. Pp. 180-181. COUNSEL: Henry Geller argued the cause for the United States et al. With him on the brief Ernest W. Jennes argued the cause for petitioners in No. 428. With him on the briefs w Arthur Scheiner argued the cause for respondent Southwestern Cable Co. in both cases. him on the brief were Frank U. Fletcher, Edward F. Kenehan, and James P. Riley. Michael Finkelstein filed a brief for the All-Channel Television Society, as amicus cur Briefs of amici curiae, urging affirmance, were filed by Robert A. Marmet, Thomas W. Wi Hills Video Corp. et al. JUDGES: Warren, Black, Harlan, Brennan, Stewart, [***5] White, Fortas, Douglas; Marsha OPINIONBY: HARLAN OPINION: [*159] [**1995] MR. JUSTICE HARLAN delivered the opinion ofthe Court. These cases stem from proceedings conducted by the Federal Communications Commission af tion of community antenna television (CATV) systems. Midwest averred that respondents' CAT ffected Midwest's San Diego station. n4 Midwest sought an appropriate order limiting the c respondents' service in areas in which they had not operated on February 15, 1966, pendi Ninth Circuit held that the Commission lacks authority under the Communications Act of 193 thority. n7 389 U.S. 911. For reasons that follow, we reverse. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Midwest's petition was premised upon its status as licensee of KFMB-TV, San Diego, C n2 47 CFR @ 74.1107 (a) provides that "no CATV system operating in a community within t the Grade B contour of that station, except upon a showing approved by the Commission tha . Commission approval of a request to extend a signal in the foregoing circumstances will as been made. The market size shall be determined by the rating of the American Research B Pike & Fischer Radio Reg. 2d 273, 276. [***7] n3 47 CFR @ 74.1109 creates "procedures applicable to petitions for waiver of the rules but shall be accompanied by an affidavit of service on any CATV system, station licensee, visions are made for comments or opposition to the petition, and for rejoinders by the pet ons directed to particular aspects, as it deems appropriate." 47 CFR @ 74.1109 (f). n4 Midwest asserted that respondents' importation of Los Angeles signals had fragmented services provided in the San Diego area by local broadcasting stations. Respondents' CAT d, and that this serves only to accentuate the fragmentation of the local audience. [***8 n5 February 15, 1966, is the date on which grandfather rights accrued under 47 CFR @ 74 e unwarranted. Midwest Television, Inc., 11 Pike & Fischer Radio Reg. 2d 273. The Commis n6 The opinion of the Court of Appeals could be understood to hold either that the Comm on, in fact, to have encompassed both positions. n7 We note that the Court of Appeals for the District of Columbia Circuit has concluded - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I. CATV systems [***9] receive the signals of television broadcasting stations, amplify do not produce their own programming, n9 and do not recompense producers or broadcasters n and other fees. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 CATV systems are defined by the Commission for purposes of its rules as "any facilit stations and distributes such signals by wire or cable to subscribing members of the publi the residents of one or more apartment dwellings under common ownership, control, or manag n9 There is, however, no technical reason why they may not. See Note, The Wire Mire: T in the near future." Midwest Television, Inc., supra, at 283. n10 The question whether a CATV system infringes the copyright of a broadcasting statio [REPORTER'S NOTE: See post, p. 390.] n11 The installation costs for CATV systems in 16 Connecticut communities were, for exa 4 (1965). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The CATV industry has grown rapidly since the establishment of the first commercial sys ving a total audience of 1,500,000 to 2,000,000 persons. n13 It has been more recently es 1965, it was reported that there were 1,847 operating CATV systems, that 758 others were he Commission has observed, "whatever the estimate, [**1998] CATV growth is clearly ex - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 CATV systems were evidently first established on a noncommercial basis in 1949. H. n13 CATV and TV Repeater Services, 26 F. C. C. 403, 408; Note, The Wire Mire: The FCC a n14 Note, The Wire Mire: The FCC and CATV, supra, at 368. n15 Second Report and Order, 2 F. C. C. 2d 725, 738. The franchises are granted by stat at least to some local regulation. Seiden, supra, at 44-47. See Conn. Gen. Stat. Rev., T - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***12] CATV systems perform either or both of two functions. First, they may supplement broad smit to subscribers the signals of distant stations entirely beyond the range of local ant nly 50 systems employed microwave relays, and the maximum distance over which signals were 3, 709. There are evidently now plans "to carry the programing of New York City independen p. D. C. 187, 385 F.2d 969; Hubbard Broadcasting, Inc. v. F. C. C., 128 U. S. App. D. C. 1 an centers . . . ." First Report and Order, supra, at 709. CATV systems, formerly no more d be transmitted to metropolitan areas throughout the country. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 The term "distant signal" has been given a specialized definition by the Commission tion may be expected 90% of the time at 50% of the locations. See 47 CFR @ 73.683 (a). n17 Note, The Wire Mire: The FCC and CATV, supra, at 368 (notes omitted). n18 It has thus been suggested that "a nationwide grid of wired CATV systems, interconn , New Technology and the Old Regulation in Radio Spectrum Management, 56 Am. Econ. Rev. 33 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***14] The Commission has on various occasions attempted to assess the relationship between co s, including CATV. CATV and TV Repeater Services, 26 F. C. C. 403. Although it found that er of the principal regulatory categories created by the Communications Act. Id., at 427- communications." Id., at 429. It refused to premise regulation of CATV upon assertedly adv The Commission instead declared that it would forthwith seek appropriate legislation "t enate [**1999] floor. n21 The bill was, however, ultimately returned to committee. n22 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 See S. 2653, 86th Cong., 1st Sess. n20 S. Rep. No. 923, 86th Cong., 1st Sess. n21 See 106 Cong. Rec. 10416-10436, 10520-10548. n22 Id., at 10547. The Commission in 1966 made additional efforts to obtain suitable m - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Despite its inability to obtain amendatory legislation, the Commission has, since 1960, rter Mountain Transmission Corp., 32 F. C. C. 459, aff'd, 321 F.2d 359. Finally, the Commi eport, supra. The proceeding was explicitly restricted to those systems that are served b upon potential and existing service has become too substantial to be dismissed." Id., at asting. Id., at 707. The Commission acknowledged that it could not "measure precisely th The Commission attempted to "accommodat[e]" the [*166] interests of CATV and of loc se service area they have brought competing signals. n23 Second, CATV systems were forbidd upra, at 719-730. These carriage and nonduplication rules were expected to "insur[e] many - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 See generally First Report and Order, supra, at 716-719. The Commission held that s are to be given priority according to the strength of the signal available in the commun or noncommercial station would be excluded. Id., at 717. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission in 1965 issued additional notices of inquiry and proposed rule-making, 1 F. C. C. 2d 453. After further hearings, the Commission held that the Act confers adeq e CATV systems, to govern the carriage of local signals and the nonduplication of local pr fered on February 15, 1966, unless the Commission has previously [*167] found that it adcast service in the area," 47 CFR @ 74.1107 (c). Finally, [**2000] the Commission cre irteen days after the Commission's adoption of the Second Report, Midwest initiated these II. We must first emphasize that questions as to the validity of the specific rules promulg he Communications Act to regulate CATV systems, and, if it has, whether it has, in additio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 It must also be noted that the CATV systems involved in these cases evidently do no ems. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's authority to regulate broadcasting and other communications is derived radio . . . ." 47 U. S. C. @ 152 (a). The Commission's responsibilities are no more narro ation service . . . ." 47 U. S. C. @ 151. The [*168] Commission was expected to serve aph, cable, or radio." n27 It was for this purpose given "broad authority." n28 As this Co e [broadcasting] industry." F. C. C. v. Pottsville Broadcasting Co., 309 U.S. 134, 137. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 The phrase is taken from the message to Congress from President Roosevelt, dated Fe n26 S. Rep. No. 781, 73d Cong., 2d Sess., 1. n27 Ibid. The Committee also indicated that there was a "vital need" for such a commis n28 The phrase is taken from President Roosevelt's message to Congress. H. R. Rep. No. te all forms of communication . . . ." Id., at 3. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Respondents do not suggest that CATV systems are not within the term "communication by by radio or cable, "including all instrumentalities, facilities, apparatus, and services s amply suffice to reach respondents' activities. Nor can we doubt that [***22] CATV systems are engaged in interstate communication, that television broadcasting [**2001] consists in very large part of programming devi riginated in other States. The stream of communication is essentially uninterrupted and p ational regulation that "is not only appropriate but essential to the efficient use of rad - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n29 Respondents assert only that this "is subject to considerable question." Brief for sdiction over "carriers" that are engaged in interstate communication solely through physi terms and history of this provision, however, indicate that it was "merely a perfecting a n by radio between two points within a single State . . . ." S. Rep. No. 1090, 83d Cong., mmon carriers within the meaning of the Act. See 47 U. S. C. @ 153 (h); Frontier Broadcas pra, at 427-428. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***23] Nonetheless, respondents urge that the Communications Act, properly understood, does n icitly authorized such regulation, and that its efforts were unsuccessful. In the circums er width of its authority and its understandable preference for more detailed policy guida rification of the pertinent statutory provisions. Wong Yang Sung v. McGrath, 339 U.S. 33, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 See H. R. 13286, 89th Cong., 2d Sess. The bill was favorably reported by the House n31 See, for the legislation proposed in 1959, CATV and TV Repeater Services, supra, at ess . . . confirm [the Commission's] jurisdiction and . . . establish such basic national - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***24] Nor can we obtain significant assistance from the various expressions of congressional her Congress have "very little, if any, significance." Rainwater v. United States, 356 U.S nsidered these requests for legislation, that the Commission did not already possess regul nd that it preferred to recommend [*171] the adoption of legislation that would impose unable to regulate. n33 In 1966, the Commission informed Congress that it desired legislat 2d Sess., 16. In response, the House Committee on Interstate and Foreign Commerce said m sion has authority under present law to regulate CATV systems is for the courts to decide tion now before us. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n32 See S. Rep. No. 923, 86th Cong., 1st Sess., 5-6. n33 Thus, the Senate Committee on Interstate and Foreign Commerce observed in its 1959 ar "that it did not intend to regulate CATV systems in any way whatsoever." S. Rep. No. 92 to regulate CATV. See, e. g., 106 Cong. Rec. 10426. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***26] Second, respondents urge that @ 152 (a) n34 does not [*172] independently confer re e. Respondents emphasize that the Commission does not contend either that CATV systems ar cteristics both of broadcasting and of common carriers, but with all of the characteristic - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n34 47 U. S. C. @ 152 (a) provides that "the provisions of this chapter shall apply to the United States, and to all persons engaged within the United States in such communicati ged in wire or radio communication or transmission in the Canal Zone, or to wire or radio - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***27] We cannot construe the Act so restrictively. Nothing in the language of @ 152 (a), in described by the Act's other provisions. The section itself states merely that the "provi was given "regulatory power over all forms of electrical communication . . . ." S. Rep. N t was precisely because Congress wished "to maintain, through appropriate administrative c ion a "unified jurisdiction" n35 and "broad authority." n36 Thus, "underlying the whole [C uirement that the administrative process possess sufficient flexibility to adjust itself t efore gave the Commission "a comprehensive mandate," with "not niggardly but expansive pow authority over "all interstate . . . communication by wire or radio." n37 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 S. Rep. No. 781, supra, at 1. n36 H. R. Rep. No. 1850, supra, at 1. n37 Respondents argue, and the Court of Appeals evidently concluded, that the opinion o ached by the Act's other provisions. We find this unpersuasive. The Court in Carroll cons t was concerned, not with the limits of the Commission's authority over a form of communic s authority under @ 303 (r), see id., at 600, must be read in that context, and as thus re - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***29] Moreover, the Commission has reasonably concluded that regulatory authority over CATV providing a widely dispersed radio and television service," n38 with a "fair, efficient, a een granted authority to allocate broadcasting zones or areas, and to provide regulations that these obligations require for their satisfaction the creation of a system of local br the Commission has held that an appropriate system of local broadcasting may be created o ities [**2004] must be encouraged "to launch sound and [*175] adequate programs to - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 S. Rep. No. 923, supra, at 7. The Committee added that "Congress and the people" h r of real and immediate public concern." Ibid. n39 H. R. Rep. No. 1559, 87th Cong., 2d Sess., 3; Sixth Report and Order, 17 Fed. Reg. er Communities 3-4 (Comm. Print 1959). The Senate Committee has elsewhere stated that "th n40 The Commission has allocated 82 channels for television broadcasting, of which 70 a 454 VHF stations were on the air, 25 permittees were not operating, and 11 applications we 66 were assigned but not operating, 52 applications were pending before the Commission, a " only if more of the available UHF channels are utilized. H. R. Rep. No. 1559, supra, at n41 S. Rep. No. 67, 87th Cong., 1st Sess., 8-9. The Committee indicated that it was "o t 3. Similarly, the House Committee on Interstate and Foreign Commerce has concluded that is thus an essential element of "an adequate national television system." Id., at 4. See n42 Legislation was adopted in 1962 to amend the Communications Act in order to require tat. 150. The legislation was plainly intended to assist the growth of UHF broadcasting. tat. 68, 81 Stat. 365. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***32] The Commission has reasonably found that the achievement of each of these purposes is " "the realization of some of the [Commission's] most important goals," First Report and Or ision broadcaster," id., at 700, and thus ultimately deprive the public of the various ben es, significantly magnify the characteristically serious financial difficulties of UHF and CATV, but reasoned that its statutory responsibilities demand that it "plan in advance of onclude that there is substantial evidence that the Commission cannot "discharge its overa s., The Television Inquiry: The Problem of Television Service for Smaller Communities 19 ( - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n43 See generally Second Report and Order, supra, at 736-745. It is pertinent that the this would have four undesirable consequences: (1) the local community "would be left with the central community may be deprived not only of local service but of any service at all" m"; (4) "unrestrained CATV, booster, or translator operation might eventually result in la ce." S. Rep. No. 923, supra, at 7-8. The Committee concluded that CATV competition "does n44 The Commission has found that "we are in a critical period with respect to UHF deve ing cause for serious concern," ibid., was that there is "likely" to be a "severe" impact d "siphon off sufficient local financial support" for educational television, with the res . The Commission concluded that the hazards to educational television were "sufficiently enues, that many stations, particularly in small markets, cannot readily afford such compe , Community Antenna Television Systems and Local Television Station Audience, 80 Q. J. Eco n45 Compare the following. Seiden, supra, at 64-90; Note, The Federal Communications C ddition, that the dispute here is in part whether local, advertiser-supported stations are Rev. 440 (May 1966); Greenberg, Wire Television and the FCC's Second Report and Order on C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission has been charged with broad responsibilities for the orderly development l source of information and entertainment for a great part of the Nation's population. Th n systems. We have elsewhere held that we may not, "in the absence of compelling evidence es, 390 U.S. 747, 780. [*178] Compare National Broadcasting Co. v. United States, supr er "all interstate . . . communication by wire or radio" permits the regulation of CATV sy There is no need here to determine in detail the limits of the Commission's authority t erformance of the Commission's various responsibilities for the regulation of television b ith law," as "public convenience, interest, or necessity requires." [**2006] 47 U. S. III. We must next determine whether the Commission has authority under the Communications Ac e summary procedures for the disposition both of requests for special relief and of "compl TV systems and broadcasting stations involved. Ibid. The Commission considered that appr earing, or further written submissions" would be permitted "if they appear necessary or ap rary relief. The Commission, after examination of various responsive pleadings but without prior hea whether the carriage of such signals into San Diego contravenes the public interest. The began receiving service or who submitted an "accepted subscription request" between Febru service. 4 F. C. C. 2d 612, 624-625. The order is thus designed simply to preserve the si Respondents urge that the Commission may issue prohibitory orders only under the author (c), cease-and-desist orders are proper only after hearing or waiver of the right to heari re. Section 312 (b) provides that a cease-and-desist order may issue only if the responde dents here were not found [*180] to have violated or to have failed to observe any suc esent or planned CATV operations are consistent with the public interest and what, if any, under @@ 312 (b), (c). n46 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46 Respondents urge that the legislative history of @ 312 (b) indicates that the Commi n was deprived of its authority, granted elsewhere in the Act, to issue orders "necessary - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***40] The [**2007] Commission has acknowledged that, in this area of rapid and significa the present case may prove to be such a situation, and that the public interest demands "i This Court has recognized that "the administrative process [must] possess sufficient flex reason that Congress declined to "stereotyp[e] the powers of the Commission to specific de . v. S. E. C., 112 U. S. App. D. C. 43, 47-48, 299 F.2d 127, 131-132. [***41] [*181] 47 U. S. C. @ 154 (i). See also 47 U. S. C. @ 303 (r). In these circumstances, we hold tions Act. And there is no claim that its procedure in this respect is in any way constit The judgments of the Court of Appeals are reversed, and the cases are remanded for furt It is so ordered. MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL took no part in the consideration or decis CONCURBY: WHITE CONCUR: MR. JUSTICE WHITE, concurring in the result. My route to reversal of the Court of Appeals is somewhat different from the Court's. S ire or radio . . . ." (Emphasis added.) I am inclined to believe that this section means t on of jurisdiction before us today. Section 301, 47 U. S. C. @ 301, gives the Commission b vent interference between stations and to carry out the provisions of this chapter" and al elevision broadcaster from interfering with broadcasting in San Diego. For example, the C n should also be able to prevent a third party from disrupting Commission-licensed broadc Even if @@ 301 and 303 in themselves furnish insufficient basis for the Commission to e nd 303, applicable to all wire and radio communication. Hence the [**2008] Commission ce its specific powers over common carriers by wire.