National Cable Television Association, Inc v. United States Federal Power Commission v. New England Power Company 8212 948, 72 8212 1162

• Decision Date: 04 March 1974
• Docket Number: Nos. 72,s. 72
• Citation: 94 S.Ct. 1155,39 L.Ed.2d 370,415 U.S. 352
• Parties: NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner, v. UNITED STATES and Federal Communications Commission. FEDERAL POWER COMMISSION, Petitioner, v. NEW ENGLAND POWER COMPANY et al. —948, 72—1162
• Court: U.S. Supreme Court

415 U.S. 352

94 S.Ct. 1155

39 L.Ed.2d 370

NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner,

v UNITED STATES and Federal Communications Commission.

FEDERAL POWER COMMISSION, Petitioner,

v. NEW ENGLAND POWER COMPANY et al.

Nos. 72—948, 72—1162.

Supreme Court of the United States

Argued Dec. 3, 1973.

March 4, 1974

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

These cases present two distinct issues involving interpretation of the Independent Offices Appropriation Act, 1952: first, whether sufficient 'work, service, . . . benefit, . . . or similar thing of value or utility' was conferred on the CATV operators or utility companies to warrant imposition of a fee under the statute; and, second, whether, if a fee was justifiably imposed, the amount of the fee was determined in accordance with a proper interpretation of the statutory standard that it be 'fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts.' 31 U.S.C. § 483a.

The Court, however, fails to recognize that these issues require independent analysis. Instead, permeating the Court's opinions on both issues is an attempt to draw metaphysical distinctions between a 'fee' and a 'tax.' I do not find this approach either helpful or appropriate; whatever the label, the questions presented in these cases involve simply whether the charges assessed by the Commissions were authorized by Congress. The Court's approach merely beclouds its analysis, producing results which seem to me inconsistent and affording guidance to the agencies in setting their fee policies which might be charitably described as uncertain.

This approach is allegedly based on the need to construe the statute narrowly to avoid constitutional difficulties. I do not believe that any serious question of the constitutionality of the Act would be presented if Congress had in fact authorized these charges. The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has been virtually abandoned by the Court for all practical purposes,¹ at least in the absence of a delegation creating 'the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of (constitutionally) protected freedoms,' United States v. Robel, 389 U.S. 258, 272, 88 S.Ct. 419, 428, 19 L.Ed.2d 508 (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, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); North Dakota Pharmacy Board v. Snyder's Stores, 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973)—if not more so. It is hardly surprising that, until today's de- cision, the Court had not relied upon Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), almost since the day it was decided.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, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Lichter v. United States, 334 U.S. 742, 783—786, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948). I therefore see no reason to construe the statute in an artificially narrow way to avoid nonexistent constitutional difficulties.

Even on a neutral reading of the statute and its legislative history, however, I am convinced that Congress did not intend to authorize 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 substantial number of which would lend themselves to equitable fees.' Id. at 4. The report listed the type of services for which assessment of fees would be appropriate: radio station construction permits, radio station operating licenses and renewals, authorization of assignment or transfer of licenses, radio operator licenses, and certificates of public convenience and necessity. Id. at 11.³

On the other hand, the report was careful to point out the limited nature of its recommendations. It emphasized that it was not proposing that Government regulation in general be made self-sustaining by shifting the costs to those regulated:

'There has been no quarrel with the philosophy governing the study that those who receive the benefit of services rendered by the Government especially for them should pay the costs thereof. In the several staff reports and press releases which have been issued, occasion has been taken to reiterate that philosophy and to give reassurance that there is no thought here to establish a system of fees for fundamental Government services, but only to explore the feasibility and fairness of shifting to special beneficiaries the expense now being borne for them by the taxpayers at large.' Id., at 3.

These themes were reiterated during the 1951 hearings which led directly to enactment of the Independent Offices Appropriation Act, 1952. Hearings on Independent Offices Appropriations for 1952 before the Subcommittee on Independent Offices of the House Committee on Appropriations, 82d Cong., 1st Sess. (1951). The questions of the committee members reflected their concern that the regulatory agencies were not recouping any part of the cost of services which benefited particular special interests. But it is apparent that the Committee had in mind imposition of fees for issuance of licenses, id., at 281, 681, certificates of public convenience and necessity, id., at 281, 524, and the like. And it was recognized that in the absence of this sort of special benefit, imposition of the cost of regulation on those regulated represented a different philosophical approach, as to which there had been in the past substantial resistance. Id., at 730.

The actual language of the Appropriation Act is quite general, and is certainly capable of varying interpretations. But the intended content of the statute's authorization of fees to be charged for 'any work, service publication, report, document, benefit, privilege authority, use, franchise, license, permit, certificate, registration or similar thing of value or utility' can be gleaned from this legislative history. When the Committee Report expressed its concern that 'the Government is not receiving full return from many of the services which it renders to special beneficiaries,' H.R.Rep.No.384, 82d Cong., 1st Sess., 2 (1951), and suggested that 'fees could be charged for other services' 'of the type here under consideration,' id., at 3, I think that it contemplated imposition of application fees, registration fees, and fees for grants of licenses, permits, or other similar authorizations. This interpretation is consistent with the statutory language, with its long enumeration of specific, readily identifiable, and discrete Commission actions for which fees can be charged. This interpretation is consistent, also, with the explanation of the statute on the floor of the House offered by Representative Yates, in which he cited the award of franchises, licenses, certificates of public convenience and necessity, and construction permits as 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...