Black Hills Video Corporation v. FCC
| Decision Date | 07 August 1968 |
| Docket Number | 18348,18813,No. 18052,18839.,18793,18052 |
| Citation | 399 F.2d 65 |
| Parties | BLACK HILLS VIDEO CORPORATION and Midwest Video Corporation, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. ALICE CABLE TELEVISION CORPORATION, etc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. BUCKEYE CABLEVISION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. MISSION CABLE TV, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harry M. Plotkin, of Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., for petitioner Black Hills Video and Midwest Video; Wayne W. Owen and C. Hamilton Moses, of Moses, McClellan, Arnold, Owen & McDermott, Little Rock, Ark., and Max D. Paglin and Philip R. Ehrenkranz, of Grove, Paglin, Jaskiewicz, Gilliam & Putbrese, Washington, D. C., on the briefs.
John D. Matthews, of Dow, Lohnes & Albertson, Washington, D. C., for petitioner Alice Cable Television Corp.; Thomas W. Wilson and Richard F. Swift, Washington, D. C., of the same firm and Robert H. Young, of Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief.
Henry Geller, General Counsel, Federal Communications Commission, Washington, D. C., for respondents; John H. Conlin, Associate General Counsel, and Lenore G. Ehrig, Counsel, Federal Communications Commission, Washington, D. C., and Donald F. Turner, Asst. Atty. Gen., and Lionel Kestenbaum and Howard E. Shapiro, Attys., Department of Justice, Washington, D. C., on the briefs.
Bruce E. Lovett, Atty. for National Community Television Association, Inc., Washington, D. C., for intervenor National Community Television Assn., Inc.; Gary L. Christensen, Elk Point, S. D., and Robert D. L'Heureux, Washington, D. C., on the briefs.
Ernest W. Jennes, of Covington & Burling, Washington, D. C., for intervenor Association of Maximum Service Telecasters, Inc.; John E. Vanderstar, Washington, D. C., on the brief.
Douglas A. Anello, Kenneth W. Gross and Mark E. Georgeou, Washington, D. C., for intervenor National Assn. of Broadcasters.
Before VAN OOSTERHOUT, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.
VAN OOSTERHOUT, Chief Judge.
This proceeding involves petitions filed pursuant to § 402(a) of the Communications Act of 1934 as amended (47 U.S.C. § 402(a)), the Judicial Review Act, 5 U.S.C. § 1031 et seq., and Rule 27 of the Rules of this court.1 Petitioners seek review of: (1) Rules and regulations promulgated by the Federal Communications Commission (FCC) in its First Report and Order released on April 23, 1965,2 relating to regulation of microwave fed community antenna television systems (CATV). (2) Rules and regulations promulgated by a Second Report and Order released on March 8, 1966, regulating all CATV systems including off-the-air as well as microwave systems.3 (3) The Commission's January 5, 1967, order denying various petitions for reconsideration of the Second Report and Order.4
Seven petitioners, all CATV systems, have sought review of the above described Commission actions. Black Hills Video Corporation and Midwest Video Corporation sought review of the First and Second Report and Order and the denial of the petitions for reconsideration. (Cases No. 18,052 and No. 18,348.)5
Buckeye Cablevision, Inc., Alice Cable Television Corporation, Mission Cable TV, Inc., Pacific Video Cable Co., and Trans Video Corp. all sought review of the Second Report and Order and the denial of the petitions for reconsideration in other circuits. These cases (No. 18,793, No. 18,813 and No. 18,839) were transferred to this circuit and consolidated with those originally filed in this court. National Community Television Association, Inc., a CATV trade association, intervened on behalf of the petitioners. National Association of Broadcasters and Association of Maximum Telecasters, Inc., intervened on behalf of the respondents.
Petitioner Black Hills Video Corporation has maintained since 1957 a micro-wave system which serves its affiliate Midwest Video Corporation at Rapid City, South Dakota, and other places. All other petitioners take their signals off-the-air and are not fed by micro-wave.
These cases were originally argued and submitted on October 16, 1967. On October 23, 1967, the Supreme Court granted certiorari in Southwestern Cable Co. v. United States, 9 Cir., 378 F.2d 118, in which case the Ninth Circuit held the FCC lacked jurisdiction or authority over CATV. The FCC in a letter to this court dated October 24, 1967, suggested that it might be desirable to withhold decision in these cases until the Supreme Court decided Southwestern Cable. Although such suggestion was opposed by petitioners, this court took the view that the decision in Southwestern Cable might well go far toward the disposition of these cases and hence withheld decision. United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001, was decided on June 10, 1968.
Description of CATV systems, covering both off-the-air and microwave fed types, the function of CATV and the history and the explosive development of CATV are fully discussed in the Supreme Court opinion in Southwestern Cable and in the First and Second Reports of the Commission, supra. Thus our discussion of background material will be confined to facts essential to the disposition of the issues presented.
The principal provisions of the regulations here under attack may be summarized as follows:
Section 74.1103(a), (b), (c) and (d), the carriage rule,6 provides that on request a CATV system must carry the programs of local and nearby stations. A system of priorities between stations and exceptions thereto is set up to implement the general rules.
Section 74.1103(e), (f) and (g) constitutes the nonduplication rule. Under this rule a CATV cannot carry a program from one station on the same day that a higher priority station on the system is broadcasting the same program. There are specific exceptions provided.
Section 74.1105 requires notification of intention to commence service (or to add a new distant signal) to be served on the following: all licensees and permittees within whose Grade B contour the system will operate; the Commission; the licensee or permittee of any 100 watt or higher translator operating in the community; and area school superintendents if the CATV is going to import an educational channel into a community with an unoccupied educational allocation. Service cannot be commenced until thirty days after this notice is served.
Section 74.1107 requires an evidentiary hearing before a CATV system may bring a distant signal (the signal of a television station carried beyond the station's Grade B contour) into any community within the Grade A service area of a television station in one of the top 100 markets. Section 74.1107(d) grandfathers any signal which was being supplied by a CATV system to its subscribers on or before February 15, 1966. A grandfathered system cannot extend service into "new geographical areas" if the Commission finds, upon petition filed by an area television station or other interested person, that such extension would be contrary to the public interest. Temporary relief can be given pending the resolution of such a petition.
Section 74.1109 provides a procedure for waiver of the rules or the imposition of "additional or different requirements" on an ad hoc basis. Temporary relief pending any hearing is also authorized.
Some variance exists in the attacks made by the various petitioners upon the rules and regulations adopted by the FCC in its First and Second Reports. For the sake of brevity, we will not separately state the contentions made by each of the petitioners but will summarize and discuss the substantial points made by any petitioner or the intervenor, National Community Television Association, Inc.
As a basis for upsetting the rules and regulations promulgated, the following points are asserted:
I. The FCC lacks statutory authority and jurisdiction to regulate CATV systems.
II. The rules adopted violate rights guaranteed the petitioners by the First and Fifth Amendments.
III. The rules were promulgated without adequate notice and opportunity to participate, in violation of §§ 14(a), (b) and (c) and 3(a) (3) of the Administrative Procedure Act.
IV. The selection of February 15, 1966, as the effective date of § 74.1107 makes such rule an invalid retroactive law.
V. The non-duplication and carriage rules are inconsistent with copyright laws and hence, invalid.
VI. The rules are unreasonable and discriminatory in their operation and therefore invalid.
We shall consider the points just set out in the order above stated. For reasons assigned hereinafter, we find the rules are not vulnerable to the attack made thereon and that the action of the Commission should be affirmed.
The threshold issue of whether the FCC has authority or jurisdiction to regulate CATV systems is raised by all petitioners. Such issue, which the FCC and the courts have found to be an extremely troublesome one, has now been authoritatively resolved by the Supreme Court in Southwestern Cable. In that case, the Supreme Court, after a full discussion and consideration of the question of whether the Communications Act of 1934 as amended, 47 U.S.C. § 151 et seq., confers jurisdiction upon the FCC to regulate CATV systems, concludes:
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