Midwest Video Corp. v. F. C. C., Nos. 76-1496 and 76-1839

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore STEPHENSON and WEBSTER, Circuit Judges, and MARKEY; MARKEY; WEBSTER
Citation571 F.2d 1025
Parties3 Media L. Rep. 1817 MIDWEST VIDEO CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., et al., Intervenors. AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., et al., Intervenors.
Docket NumberNos. 76-1496 and 76-1839
Decision Date21 February 1978

Page 1025

571 F.2d 1025
3 Media L. Rep. 1817
MIDWEST VIDEO CORPORATION, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Broadcasting Companies, Inc., et al., Intervenors.
AMERICAN CIVIL LIBERTIES UNION, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Broadcasting Companies, Inc., et al., Intervenors.
Nos. 76-1496 and 76-1839.
United States Court of Appeals,
Eighth Circuit.
Submitted Sept. 12, 1977.
Decided Feb. 21, 1978.

Page 1028

George H. Shapiro, Washington, D. C., for petitioner, Midwest Video Corp.; Wayne W. Owen and Harry E. McDermott, Jr., Moses, McClellan, Arnold, Owen & McDermott, Little Rock, Ark., and Harry M. Plotkin and Mary Candace Fowler, Arent, Fox, Kintner, Plotkin, Kahn, Washington, D. C., on brief.

Michael Botein, Rutgers Law School, Newark, N. J., for petitioner, American Civil Liberties Union; Joel M. Gora, American Civil Liberties Union, New York City, on brief.

Julian R. Rush, Jr., Counsel, F. C. C., Washington, D. C., for respondent, F. C. C.

James F. Ponsoldt, Atty., Dept. of Justice, Washington, D. C., for respondent, United States.

John H. Shenefield, Acting Asst. Atty. Gen., Carl D. Lawson and James F. Ponsoldt, Attys., Dept. of Justice, Washington, D. C., and Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Julian R. Rush, Jr., Counsel, F. C. C., Washington, D. C., on brief for respondents.

Charles M. Firestone, Citizens Communications Center, Washington, D. C., for intervenors, Natl. Black Media Coalition, et al.; Susan Dillon, Legal Intern, and Christopher Ma, Legal Intern, on brief.

John H. Midlen and Dennis F. Begley of Midlen & Reddy, Washington, D. C., on brief for intervenors, Coldwater Cablevision Inc. and Michigan CA-TV Co.

Stuart F. Feldstein, Frederick W. Finn and Arthur H. Harding, National Cable Television Assn., Inc., Washington, D. C., on brief amicus curiae for National Cable Television Assn., Inc.

Page 1029

Barry P. Simon, Teleprompter Corp., New York City, and Jay E. Ricks, Robert R. Bruce and Gardner F. Gillespie, Washington, D. C., on brief for Teleprompter Corp., amicus curiae in support of petitioner, Midwest Video Corp.

Before STEPHENSON and WEBSTER, Circuit Judges, and MARKEY, Chief Judge. *

MARKEY, Chief Judge.

Petitioners, Midwest Video Corporation (Midwest) and the American Civil Liberties Union (ACLU), seek review of the Federal Communications Commission's (Commission's) Report and Order in Docket No. 20508, 59 F.C.C.2d 294 (released May 13, 1976), reconsideration denied, 62 F.C.C.2d 399 (released December 21, 1976) (1976 Report ) 1 imposing mandatory access and channel capacity requirements upon certain cable television systems. 2

Midwest challenges the regulations as (1) inadequately supported by the record, (2) beyond the jurisdiction of the Commission, (3) violative of the free speech clause of the First Amendment, and (4) violative of the due process clause of the Fifth Amendment.

ACLU does not challenge the Commission's jurisdiction to issue the 1976 Report regulations, but objects to the softening modifications made to the 1972 Cable Report access rules, 3 alleging that the modifications (a) lack rational basis in their failure to consider interests of access program producers, (b) violate the Commission's mandate to regulate cable television as a common carrier, and (c) do not fully achieve general First Amendment goals. 4

We grant the petition for review and set aside the order because it exceeds the jurisdiction of the Commission.

Background

As the cable television industry sought to develop over the past twenty-five years, the Commission's effort to regulate it has led to numerous Commission proceedings, voluminous litigation, and substantial literature. 5

A cable system is composed of an antenna, to pick up local and distant broadcast signals, and cables for transmitting those signals to the home television sets of the system's paying subscribers. Some systems

Page 1030

have employed the services of microwave companies for long distances between their antennae. The cable system may also transmit its own programs, i. e., "cablecast," through its cables to its subscribers. For technical reasons, most cable systems began with 12 channels. 6

Having decided to preserve the "national television service" as it existed in 1952, Sixth Report and Order on Rules Governing Television Broadcast Stations, 17 Fed.Reg. 3905 (1952), the Commission initially ignored cable television, considering it no threat to broadcasting or to its regulatory domain. On receipt of broadcaster complaints in 1958, the Commission ruled that cable systems were not common carriers and refused to regulate them. Frontier Broadcasting Co., 24 F.C.C. 251, 253-54 (1968), aff'd, Report and Order on Inquiry Into the Impact of Community Antenna Systems, Television Translators, Television "Satellite" Stations, and Television "Repeaters" on the Orderly Development of Television Broadcasting, 26 F.C.C. 403, 441 (1959). The Commission's position that cable systems were not engaged in common carrier operations was upheld in WSTV, Inc., 23 Rad.Reg. P 184 (1962) and in Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 300, 359 F.2d 282, 284 (1966). In all this, the Commission decided that it had no jurisdiction over cable television as common carriers under Title II of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq. (1970) (Act), or as broadcasters under Title III of the Act, and that it had no plenary power to regulate an industry just because that industry may have an impact on broadcasting, over which it did have jurisdiction. 7

Becoming persuaded, and announcing with admirable candor, that cable systems might represent a competitive threat to its regulatees in television broadcasting, the Commission decided to assert jurisdiction. 8 The Commission's approach to Congress for appropriate statutory authority was frustrated. To date, the Congress has refrained from exercising its legislative authority to provide that the Commission shall or shall not regulate cable systems, and, if they shall, in what manner and to what purpose and extent. The subject of cable regulations has thus been left substantially entirely to the Commission and the Courts. 9

Page 1031

Proceeding on its own, the Commission has attempted not just to keep pace, but to anticipate the course of communications advances, facing the virtually impossible task of outrunning our modern technological juggernaut. Beginning with indirect regulation through its jurisdiction over microwave companies used by some cable systems, and exhibiting an apparent hostility toward letting cable grow as its own ingenuity and consumer acceptance may have dictated, the Commission imposed an extended "freeze" on cable's growth, see Wentronics, Inc. v. FCC, 118 U.S.App.D.C. 36, 331 F.2d 782 (1964).

The Commission has since attempted to frame a place for cable television while preserving broadcast television intact. The effort has resulted in the establishment of a Cable Television Bureau under the Commission, and 60 pages of cable regulations at 47 C.F.R. §§ 76.1-78.115 (1976). 10 As a substitute for the license it is statutorily empowered to grant or refuse to broadcasters, the Commission issues a "Certificate of Compliance," for cable operators. 47 C.F.R. § 76.11. It sets for state and local franchising authorities the conditions they may impose on cable enterprises seeking a franchise to string cable underground or on poles. 47 C.F.R. § 76.31. It requires cable operators to submit forms and reports. 47 C.F.R. §§ 76.401-411.

Much of the Commission's cable-regulating has involved the planting of new and dramatic seeds of regulation, based on soaring, euphoric predictions (some from cable owners) of great things to come from cable television, seeds which had to be plowed under, when germination failed in the bright sunlight of commercial, economic, and technological reality. 11

The Commission's jurisdiction over cable retransmission of distant (Los Angeles) broadcast television signals into a local (San Diego) broadcast station's "contour" was upheld as "reasonably ancillary" to its regulatory responsibilities for broadcast television in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). In the following year, the Commission adopted a "mandatory origination" rule, requiring cable systems with over 3499 subscribers to originate some programs of their own. First Report and Order in Docket No. 18397, 20 F.C.C. 201, 202-04 (1969). This court set that rule aside as beyond the Commission's jurisdiction. Midwest Video Corp. v. United States, 441 F.2d 1322 (8th Cir. 1971). In a split decision, the Supreme Court reversed, sustaining the mandatory origination rule as also "reasonably ancillary" to the Commission's responsibilities for broadcast television. United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972). 12

Having carried the fight to victory in the Supreme Court, the Commission never enforced

Page 1032

its mandatory origination rule. 13 Instead, it conducted new proceedings, leading to the 1972 Cable Report, imposing "mandatory access" rules, under which cable systems in the largest 100 markets, were required, inter alia, to build a 20-channel capacity, to reserve three "access" channels for free use by public, educational, and governmental bodies, and to reserve a fourth channel for leased access. 36 F.C.C.2d at 240-41. All access was to be on a first come, nondiscriminatory basis, with no control by cable operators over program content. A compliance deadline of March 31, 1977 was set. 14

In 1974, the Commission formally rescinded the mandatory origination rule, 39 Fed.Reg. 43302, and simultaneously issued rules on equipment availability, Report and...

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26 practice notes
  • CBS, Inc. v. F. C. C., Nos. 79-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1980
    ...as text (as opposed to dictum in a footnote) in CBS v. DNC, 412 U.S. 94, 113-32, 93 S.Ct. 2080, 2091-2101, 36 L.Ed.2d 772 (1972). 108 571 F.2d 1025, 1053-57 (8th Cir. 1978), aff'd, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 109 See Brandywine-Main Line Radio, Inc. v. Federal Communications......
  • Jones v. Wilkinson, No. 85-2157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 8, 1986
    ...(9th Cir.1985), aff'd on other grounds, --- U.S. ----, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); see also Midwest Video Corp. v. F.C.C., 571 F.2d 1025, 1055-56 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 The district court resolved the present case on cr......
  • Cable Alabama Corp. v. City of Huntsville, Ala., No. CV-91-N-0640-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 6, 1991
    ...90 L.Ed.2d 977 (1986); Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir.1982); Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir.1978), aff'd, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979); Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.Cir.), cert. denied, 4......
  • Quincy Cable TV, Inc. v. F.C.C., Nos. 83-1283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 19, 1985
    ...1336 (D.C.Cir.1985); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052-1057 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Most of these courts, mindful of the Sup......
  • Request a trial to view additional results
26 cases
  • CBS, Inc. v. F. C. C., Nos. 79-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1980
    ...as text (as opposed to dictum in a footnote) in CBS v. DNC, 412 U.S. 94, 113-32, 93 S.Ct. 2080, 2091-2101, 36 L.Ed.2d 772 (1972). 108 571 F.2d 1025, 1053-57 (8th Cir. 1978), aff'd, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 109 See Brandywine-Main Line Radio, Inc. v. Federal Communications......
  • Jones v. Wilkinson, No. 85-2157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 8, 1986
    ...(9th Cir.1985), aff'd on other grounds, --- U.S. ----, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); see also Midwest Video Corp. v. F.C.C., 571 F.2d 1025, 1055-56 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 The district court resolved the present case on cr......
  • Cable Alabama Corp. v. City of Huntsville, Ala., No. CV-91-N-0640-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 6, 1991
    ...90 L.Ed.2d 977 (1986); Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119 (7th Cir.1982); Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir.1978), aff'd, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979); Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.Cir.), cert. denied, 4......
  • Quincy Cable TV, Inc. v. F.C.C., Nos. 83-1283
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 19, 1985
    ...1336 (D.C.Cir.1985); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052-1057 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Most of these courts, mindful of the Sup......
  • Request a trial to view additional results

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