# Appendix — FCC v. Midwest Video Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0972%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 440 U.S. 689 ## Text re Supreme Court, U. $ “Y FILED 77-1575 No. —_—_—_—_—_—— . _——_—_——_——— , CLERK MAY 4 1978 . ee Iu the Supreme Court of the United States OCTOBER TERM, 1977 FEDERAL COMMUNICATIONS COMMISSION, PETITIONER Vv. MIDWEST VIDEO CORPORATION, ET AL. PETITIONFER’S APPENDIX DANIEL M. ARMSTRONG, Associate General Counsel, JULIAN R. RUSH, JR., Counsel, Federal Communications Commission Washington, D.C. 20554. INDEX TO APPENDICES Appendix A: Opinion of the United States Court of Appeals for the Eighth Circuit — Appendix B: Report and Order of the Federal Commu- I i eueeeebneneamesciieiiin Appendix C: Memorandum Opinion and Order of the Federal Commuvications Commission ......................... Appendix D: Order of the United States Court of Ap- peals for the Eighth Circuit granting Motion for Stay Or a edoiseniaiienbadalin Appendix E: Communications Act of 1934, as amended, 47 U.S.C.: RG Saar ee Re SEED sentinnmneeseemniencnnennasiijiniaronmnmnnnsnammmnnptaesataetnae RUPEE echirsvundnnierctaeteneneeanniiiittiiannemmnniinciienmseats Appendix F: Rules and Regulations of the Federal Com- munications Commission, 47 C.F.R..: Se ED GUE UNNE cecennepnispiccvesisinsniinssnccnesiigipiinenczainitaneniaian Page 207 209 209 210 210 210 211 212 1 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 76-1496 MIDWEST VIDEO CORPORATION, PETITIONER, Vv. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS. AMERICAN BROADCASTING COMPANIES, INC., et al., INTERVENORS. No. 76-1839 AMERICAN CIVIL LIBERTIES UNION, PETITIONER, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS. AMERICAN BROADCASTING COMPANIES, INC., et al., INTERVENORS. On Petition for Review of an Order of the Federal Communications Commission Submitted: September 12, 1977 Filed: February 21, 1978 Before STEPHENSON, Circuit Judge, WEBSTER, Circuit Judge, 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 Com- mission’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)* im- posing mandatory access and channel capacity re- quirements upon certain cable television systems.” * The Honorable Howard T. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation. 1The 1976 Report modifies and replaces earlier regulations on mandatory access and channel capacity, Cable Television Report and Order, 36 F.C.C.2d 148, affirmed on reconsidera- tion, 36 F.C.C.2d 326 (1972) (Cable Report). Our holding, that the access rules of the 1976 Report exceed the jurisdic- tion of the Commission, carries with it the substantially identical, though more onerous, rules of the Cable Report. 2 Community-wide, coaxial cable television systems were earlier called “Community Antenna Television” or “CATV” Midwest challenges the regulations as (1) inade- quately supported by the record, (2) beyond the jurisdiction of the Commission, (3) viviative 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 juzis- diction to issue the 1976 Report regulations, but ob- jects to the softening modifications made to the 1972 Cable Report access rules,’ alleging that the modi- fications (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.‘ We grant the petition for review and set aside the order because it exceeds the jurisdiction of the Com- mission. Background As the cable television industry sought to develop over the past twenty-five years, the Commission’s systems. The Commission now uses the more inclusive “cable television,” Cable Report, as do we. See 47 C.F.R. § 76.5(a) (1976). * See note 1 supra. * Briefs Amicus Curiae or as Intervenors were filed by Na- tional Cable Television Association, Inc.; Teleprompter Cor- poration; National Black Media Coalition, Citizens For Cable Awareness in Pennsylvania, and Philadelphia Community Cable Coalition, jointly; and Coldwater Cablevision Incor- porated and Michigan CA-TV Company, jointly. 4 effort to regulate it has led to numerous Commission proceedings, voluminous litigation, and substantial literature.’ 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 sys- tems have employed the services of microwave com- panies for long distances between their antennae. The cable system may also transmit its own pro- grams, i.e., “cablecast,” through its cables to its sub- scribers. For technical reasons, most cable systems began with 12 channels.* ’Of the extensive commentary, these are representative: Barrow, Program Regulation in Cable TV: Fostering Debate in a Cohesive Audience, 61 Va. L. Rev. 515 (1975); Bretz, Public Access Cable TV: Audiences, J. of Com., Summer 1975 at 15; Doty, Public Access Cable TV: Who Cares, J. of Com., Summer 1975 at 23; Price, Requiem for the Wired Nation: Cable Rulemaking at the FCC, 61 Va. L. Rev. 541 (1975); Lapierre, Cable Television and the Promise of Programming Diversity, 42 Fordham L. Rev. 25 (1973); S. Rivkin, Cable Television: A Guide to Federal Regulations (1973); Barrow, The New CATV Rules: Proceed on Delayed Yellow, 25 Vand. L. Rev. 681 (1972); Park, Cable Television, UHF Broadcast- ing, and FCC Regulatory Policy, 15 J. Law & Econ. 207 (1972); Posner, The Appropriate Scope of Regulation in the Cable Television Industry, 3 Bell J. Econ. & Mtg. Sci. 98 (1972); R. Smith, The Wired Nation: Cable TV: The Elec- tronic Communications Highway (1972); Sloan Commission on Cable Communications, On the Cable: The Television of Abundance (1971); Note, The Wire Mire: The FCC and CATV, 79 Harv. L. Rev. 366 (1965). *The 12 channels are in the “low band” and “high band” portions of the MHz spectrum. The 20 channel capacity re- quirement in the 1976 Report necessitates use of the “mid- 5 Having decided to preserve the “national television service” as it existed in 1952, Sixth Report and Order on Rules Governing Television Broadcast Sta- tions, 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 com- mon 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 Trans- lators, Television “Satellite” Stations, and Television “Repeaters” on the Orderly Development of Televi- sion Broadcasting, 2€ F.C.C. 408, 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-H) $184 (1962) and in Philadelphia Television Broadcasting Co. v. FCC, 359 F.2d 282, 284, (D.C. Cir. 1966). In all this, the Commission decided that it had no jurisdic- tion over cable television as common carriers under Title II of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seg. (1970) (Act), band,” and a concomitant expense of construction and re- building. Technophiles say that present technology enables installa- tion of as many as 80 channels, and that the advent of laser- ray carriage of television signals, with virtually unlimited channels, may replace cable. See Field, Laser Video Is Intrigu- ae Is It Useful? N.Y. Times, Sept. 18, 1972, at 37, col. 3. 6 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.’ Becoming persuaded, and announcing with admir- able candor, that cable systems might represent a competitive threat to its regulatees in television broadcasting, the Commission decided to assert jurisdiction.* The Commission’s approach to Con- gress for appropriate statutory authority was frus- trated. To date, the Congress has refrained from exercising its legislative authority to provide that * The Commission candidly and repeatedly admitted an in- ability to determine the fact of adverse impact, Report and Order on Inquiry, supra, 26 F.C.C. at 421-22, 424, 436; First Report and Order on Grant of Authorizations in the Business of Radio Service for Microwave Stations to Relay Television Signals to Community Antenna Systems, 38 F.C.C. 683, 710-11 (1965), and Second Report and Order on Grant * * * Antenna Systems, 2 F.C.C.2d 725, 773, 781 (1966). Yet the Commission refused a request for an experiment to test impact, Suburban Cable TV Co., 9 F.C.C.2d 1013 (1967). ® Whether agencies become captives of their regulatees, and whether the “barter process” before agencies must be accepted in place of “ideal” rulemaking, see Jaffe, The Illusion of the Ideal Administration, 86 Harv. L. Rev. 1183 (1973), and whether, to use an imperfect analogy, the motion picture in- dustry could have advanced as rapidly against vaudeville under a Federal Entertainment Commission, or the airlines as rapidly under a Federal Transportation Commission regulat- ing railroads and airlines, the wisdom and implications to social progress of a regulatory system that enlists the power of government to preserve established industry against new technological competition, as distinguished from reliance on consumer preference at a perceived risk of market chaos, is a matter for the Congress, not the courts. 7 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 reg- ulations has thus been left substantially entirely to the Commission and the Courts.’ Proceeding on its own, the Commission has at- tempted not just to keep pace, but to anticipate the course of communications advances, facing the vir- tually impossible task of outrunning our modern technological juggernaut. Beginning with indirect regulation through its jurisdiction over microwave companies used by some cable systems, and exhibit- ing 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, 331 F.2d 782 (D.C. Cir. 1964). The Commission has since attempted to frame a place for cable television while preserving broadcast television intact. The effort has resulted in the estab- lishment of a Cable Television Bureau under the * A bill giving the Commission full licensing authority over cable television failed on the Senate floor. S. 2653 S. Rep. No. 923, 86th Cong., Ist Sess. (1959). The Commission’s own legislation was introduced in 1961. S. 1044 and H.R. 6840, 87th Cong. 1st Sess. (1961). Congress took no legislative action. The matter was again considered in 1965 and 1966. Hearings on H.R. 7715 Before the Subcomm. on Communica- tions and Power of the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess. (1965); Hearings on H.R. 12914, H.R. 13286, and H.R. 14201 Before the House Committee on Interstate and Foreign Commerce, 89th Cong., 2d Sess. (1966). 8 Commission, and 60 pages of cable regulations at 47 C.F.R. $§ 76.1-78.115 (1976).” 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 franchis- ing 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 re- quires 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 sun- light of commercial, economic, and_ technological reality.” 2” Cable owners may welcome the Commission, as regulator- protector-servant. Dealing en masse with the Commission, which dictates to local franchising authorities, 47 C.F.R. § 76.258, may be easier than facing those authorities one-on- one; the Chief of the Cable Television Bureau desired to regu- late pay movies in hotel rooms as competitors to cable televi- sion. 12 Weekly TV Digest, Oct. 16, 1972 at 2. Cable and broadcast industries may one day require “protection” against the threat that direct satellite-to-home television will replace both. ™ For more detailed discussion of: (1) the potential techno- logical capacities of cable telecommunications; (2) the Com- mission’s initial declination of jurisdiction; (3) its later, grow- ing effort to regulate; (4) its changes in justification, from 9 The Commission’s jurisdiction over cable retrans- mission 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 (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). Ina split decision, the Supreme Court reversed, sustain- ing the mandatory origination rule as also “reason- for broadcast television. United States v. Midwest Video Corp., 406 U.S. 649 (1972).* Having carried the fight to victory in the Supreme Court, the Commission never enforced its mandatory protection of local VHF broadcasting stations, to fostering of UHF growth, to a fight against “unfair competition;” (5) the utopian forecasts of cable’s potential, and ensuing disappoint- ments; and (6) the oft-repeated pattern of regulations with- drawn, waivered, and abandoned, see the literature listed in note 5, supra, particularly Lapierre, Cable Television and the Promise of Programming Diversity, 42 Fordham L. Rev. 25 (1973), and Price, Requiem For the Wired Nation: Cable Rulemaking at FCC, 61 Va. L. Rev. 541 (1975). % Four Justices joined a plurality opinion; four dissented. The Chief Justice concurred in the result. 10 origination rule.“ Instead, it conducted new proceed- ings, 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 “ac- cess” 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 pro- gram content. A compliance deadline of March 31, 1977 was set.“ In 1974, the Commission formally rescinded the mandatory origination rule, 39 Fed. Reg. 43302, and simultaneously issued rules on equipment availability, Report and Order in Docket No. 19988, 49 F.C.C.2d 18 In Midwest Video, supra, 441 F.2d at 1328, this court said it was “highly speculative whether there is sufficient expertise or information available to support a finding that the origina- tion rule will further the public interest.” In reversing, the plurality considered that holding “patently incorrect” 406 U.S. at 671. * Midwest was not operating in one of the top 100 markets and its standing to challenge these rules would have been doubtful. See Midwest Video Corp. v. United States, supra, 441 F.2d at 1328. ACLU complained of the Commission’s failure (1) to impose common carrier obligations, and (2) to limit cable owners to one channel. The Ninth Circuit denied ACLU’s petition for review. American Civil Liberties Union v. FCC, 523 F.2d 1344 (9th Cir. 1975). The Commission em- phasizes here a phrase of the opinion in that case as indicating judicial approval of its access rules, but there was no chal- lenge to its jurisdiction to issue its access rules before that court. 11 1090 (1974), requiring cable systems with over 3499 subscribers to purchase, and make available to the public, equipment for producing local programs and cable time for their presentation. Midwest petitioned this court for review but withdrew its petition as moot in view of the challenge here to the 1976 Re- port, which merged the equipment availability and mandatory access rules. Midwest Video Corp. v. FCC, No. 75-1671, dismissed on petitioner’s motion (8th Cir. April 12, 1976). In March, 1974, the Commission appointed task forces to investigate the effect of the 1972 Cable Report rules. In responding to the task forces’ re- port, the Commission invited comment on postpone- ment of the March 31, 1977 deadline, Notice of Pro- posed Rulemaking in Docket No. 20363, FCC 75-211, 51 F.C.C.2d 519 (Released Feb. 26, 1975), and acknowledged concerns of various parties that: (1) industry revenues were insufficient to create new plants, distribution networks, amplifiers, converters, and modulators; (2) more time was needed to build revenue; (3) the poor economy and large debt of most cable systems meant they were unable to borrow for non-revenue producing activities; and (4) the Commission was unreasonable in expecting financial interests to provide capital while it required fran- chise authorities to enforce access and equipment rules, a process entailing the cable system’s very authority to operate. The Commission received esti- mates that the cost of rebuilding to meet the 1972 rules was between $133 million and $430 million. 12 In its Notice of Proposed Rulemaking in Docket No. 20508, 53 F.C.C.2d 782, 784 (Released June 27, 1975), the Commission added to deadline postpone- ment consideration of alternative methods by which “we might reaffirm our commitment to access cable- casting while recognizing the economic realities of today’s marketplace.” It noted the substantial cost of technological changes required by its 1972 access rules and great variances in the burden on different cable systems. In its Notice in Docket No. 20508, supra, the Com- mission rejected all suggestions that it require con- struction of channel capacity and provision of ac- cess only upon indication of community demand for such services. The suggesters felt that in many communities the channels and equipment would go unused, yet the cost would be borne by cable con- sumers (“subscribers”) totally uninterested in view- ing access programs. The Commission said, “TW]hile we may consider this approach at some point in the future, we do not believe for the fol- lowing reasons that the general adoption of an ap- proach strictly tied to demand would at this time be wise.” The Commission listed ten “reasons”: (1) cable television is new and evolving; (2) avail- ability * of cable channels for dissemination of in- 1° How adoption of a demand-governed approach after con- struction could save the construction costs was not explained. 1° Of course access channels were not actually “available” on most systems, hence the Commission’s felt need to order their construction. 13 formation is even newer; (3) demand for access services is a function of community awareness of their existence; (4) awareness and full utilization of cable’s potential requires time; (5) some older systems have provided minimal access on a voluntary basis or no access; (6) in those communities aware- ness has not had opportunity or time to develop; (7) if its requirements resulted in blank channels, it believed that would shorten the time to realize the full potential for access services, because blank channels are visible and continuing inducements to be filled; (8) it considered that true for the channel user and the system operator; (9) if it required the system operator to provide access channels, he could be expected to encourage their use; (10) if it now altered its rules to reflect existing demand for access services, it would raise a barrier to growth of that demand and a disincentive to new services “we expect of cable.” 53 F.C.C.2d at 787, 788. Though the Commission said “There is mounting evidence that access cablecasting in an increasing number of communities is beginning to fill that need,” Commissioner Robinson stated, “If the com- mission has such evidence they have kept it re- markably well hidden from me.” 53 F.C.C.2d at 801. Commissioner Quello suggested deference to local franchise authorities, who might require one access channel “upon demand and need therefore,” and called on the Commission to obtain “practical, sta- tistical data on current uses of cable facilities” and to project the future based “on statistical data rather 14 than ‘blue sky’ expectations as in the past,” saying, “In short, I think the Commission has burdened the cable industry unnecessarily with requirements and restrictions which cannot be statistically or practically supported.” 53 F.C.C.2d at 799. On May 13, 1976, having invited and received com- ments, the Commission released its Report and Order in Docket 20508, the 1976 Report here under review. The 1976 Report rescinded earlier requirements based on assu:nptions admittedly proven false, and made three major changes in the 1972 mandatory ” 17 We deal here only with mandatory access. Nothing in present law or in this opinion precludes a cable system opera- tor from voluntarily providing public access. Moreover, the present case involves only the jurisdiction of the Commission to issue its Federal access and equipment rules. The only direct effect of our opinion on the election of local franchising authorities, to require or waive access re- quirements in the light of community need and interests, is to free those authorities from the Commission’s restrictions, found in 59 F.C.C.2d at 324-25. 47 C.F.R. § 76.258. The Commission mis-relies on the presumed right of fran- chising authorities to condition local franchises on provision of access channels as justification for its doing so. The Com- mission’s jurisdiction must come from Congress, not from local authorities. ACLU implies the demise of all public access if mandatory access rules are not upheld. Nothing of record so indicates. Conjecture could equally invisage voluntary continuation and expansion of existing access programs. In all events, the Com- mission’s jurisdiction is not expandable through application of unauthorized regulations, nor can application convert unau- thorized regulations into authorized regulations, over the short term and prior to direct court challenge. Though ACLU argues that mandatory access must be con- tinued to protect the “investment” of present access users, no ae 15 access rules. First, it applied them to all cable sys- tems with over 3499 subscribers, eliminating the top 100 markets criteria. 59 F.C.C.2d at 303-06; 47 C.F.R § 76.252-56 (1976). Second, it extended the March 31, 1977, deadline for compliance with the 20-channel construction requirement to June 21, 1986, for most, but not all, existing systems. 59 F.C.C.2d at 321-24; 47 C.F.R. § 76.252(b) (1976).* Third, it required fovr access channels only of sys- tems having sufficient capacity and demand for full time access, requiring other systems to conglomerate access on one or more channels. 59 F.C.C.2d at 314- 16; 47 C.F.R. § 76.254 (1976). Thus an evolutionary process has led to the Com- mission action under review, the 1976 Report, which provides: (1) that operators of cable systems having 3500 or more subscribers designate at least four channels for access users, one channel each for public access, education access, local government access, and leased access. 47 C.F.R. § 76.254(a). one can be said to have reasonably relied on, or established an equity in continuation of, Commission cable regulations which have been consistently and continually revised, unenforced, withdrawn, waivered, and abandoned. Nor may vested inter- ests be normally acquired in continuation of regulations ex- ceeding ab initio the jurisdiction of the issuing agency. *® The March 31, 1977 deadline was previously cancelled in Report and Order in Docket No. 20363, 54 F.C.C.2d 207 (1975). Petition for review is pending in National Black Media Coalition v. FCC, D.C. Cir. Appeal No. 75-1792, a case held in abeyance pending outcome of these consolidated cases. 16 (2) that, until demand exists for full time use of all four access channels, access pro- gramming may be combined on one or more channels. 47 C.F.R. § 76.254(b). (3) that at least one full channel for shared access be provided, but if a system had insufficient activated channel capacity on June 21, 1976, it could provide whatever portions of channels are available for such purposes. 47 C.F.R. § 76.254(c). (4) that at least one public access channel be forever supplied without charge. 47 C.F.R. § 76.256(c) (2). (5) that a reasonable charge for production costs may be charged for live studio pro- grams longer than five minutes. 47 C.F.R. § 76.256(c) (3). (6) that operators establish rules providing for access on a first-come, nondiscrimina- tory basis and prohibiting the transmis- sion of lottery information, obscene or in- decent matter, and commercial and politi- cal advertising. 47 C.F.R. § 76.256(d) (1) (on public channel). 47 C.F.R. § 76.256 (d)(2) (on educational channels). In its Clarification of Section 76.256 of the Commission’s Rules and Regulations, 59 F.C.C.2d 984, 986 (1976), the Com- mission amended these regulations to provide that cable oper- ators enforce the rules which they are required to establish against obscenity and indecency. In American Civil Liberties Union v. FCC, No. 76-1695 (D.C. Cir.), ACLU has chailenged the rules found at 47 C.F.R. § 76.256(d) (1)-(3) as unconstitutionally imposing a prior censorship obligation on cable operators. Upon an order of ~ en Ao eS me eo ~ - en ee eee a 17 (7) that cable operators exercise ao other con- trol over content of access programs. 47 C.F.R. § 76.256(b). (8) that educational and local government ac- cess be offered without charge for the first five years. 47 C.F.R. § 76.256(c) (1). (9) that operators establish rules for leased access channels on a first-come, nondis- criminatory basis, requiring sponsorship identification and an appropriate rate schedule, with no control over program content except to prohibit lottery infor- mation and obscene or indecent material. 47 C.F.R. § 76.256(d) (3). (10) that each cable supply equipment and fa- cilities for local production and presenta- tion of access and lease programs. 47 C.F.R. § 76.256(a).” the court in that pending case, issued August 26, 1977, 47 C.F.R. § 76.256(d) (1)-(3) has been stayed to the extent that it prohib . the presentation of obscene or indecent matter pending the conclusion of proceedings upon remand to the Commission. However, the Commission may decide not to repeal this provision. Thus, to prevent multiple remands, we view this provision as before us as part of the 1976 Report az clarified. 59 F.C.C.2d 984. *° The Commission interpreted this rule as requiring equip- ment availability beyond normal business hours, Reconsidera- tion of Report and Order in Docket No. 20508, 62 F.C.C.2d 399, 406 (1976), and as not permitting a charge for use of automated services to play tapes and films, id. at 407, even if the playing runs longer than five minutes. The Commission requires cable operators to permit the in- stallation of converters by third parties who wish to use the operators’ facilities and who will pass the cost of converters 18 (11) that equipment in new cable systems have a capacity of two-way, nonvoice communi- cation and a minimum of 20 channels. 47 C.F.R. § 76.252 (a).” to subscribers desiring to view the program of the third party. It also insists that cable operators with limited capacity defer their own programming in favor of access users. “We shall scrutinize the actions of operators who, while providing their own programming, assert that their activated capability is insufficient to permit the leasing of a channel to potential competitors.” 1976 Report at 316. The Commission believes that time and weather channels, though of “substantial benefit to subscribers,” should also give way to access programs. /d. at 316 n.19. If only one channel is available for use by access seekers, the cable operator will be in “bad faith” if he uses that channel for pay programming. /d. at 317. % Jurisdiction to require minimum channel capacity and two-way capacity has not been argued separately from the mandatory access requirement. Channel capacity is apparently necessary to provide access channels. The Commission has linked two-way capacity with the 20-channel requirement in the same regulation, apparently because the cost is lower if such capacity be added when the 20 channels are built. The relationship of mandatory access to a two-way capacity re- quirement is not as clear as that of the 20-channel require- ment, but to the extent that two-way capacity relates to the “access concept” or that two-way capacity cannot be separated from the 20-channel requirement, it must fall with the 20- channel and other regulations of the 1976 Report. If cable systems offer two-way communications services, those services may be subject to regulation in accord with their nature, which is distinct from that of program distribution services affected by access requirements. In adopting its two-way capacity requirement, the Commis- sion recognized that it could not preempt state or local regu- lation of intra-state, two-way, non-video communications, cit- ing Nat'l Ass’n of Reg. Util. Comm’rs v. FCC, 533 F.2d 601 (D.C. Cir. 1976). The Commission interpreted that decision narrowly, stating that it did not foreclose authority to order EEE EN + ne Ce ee 19 (12) that cable systems in operation within a major television market before March 31, 1972, and other systems in operation be- fore March 31, 1977, shall have ten years from the effective date (June 21, 1976) of the 1976 Report to comply. 47 C.F.R. § 76.252 (b). Issue The dispositive issue is whether the regulations promulgated in the 1976 Report exceed the Commis- sion’s jurisdiction.” two-way capacity, and that some functions of that capacity — to broadcast program distribution. 59 F.C.C.2d at 310- In broadcast television, British viewers may acquire the “teletext” device, enabling them to call up on their sets data blocks (100 magazine pages) in which the desired information can be found, or the “viewdata” system, employing telephone lines, for calling up on their sets the specific information de- sired. British Hook Up TV To Printed Magazine, Washington Post, Dec. 25, 1977, at D4. Whether the Commission has con- sidered any requirement for “two way capacity” on broadcast television is not of record. Two-way capacity service may well acquire consumer in- terest and demand. See, e.g., Columbus Folk Can Talk Back When TVs Become Annoying, The Cincinnati Enquirer, Dec. 1, 1977, at A-6. *2 Because we hold the regulations under review to have gone too far, it is unnecessary to discuss at length all other contentions raised by Midwest, amici curiae, and intervenors, or to treat ACLU’s contention that the regulations did not go far enough. 20 OPINION I Jurisdiction The mandatory access, channel capacity, and equipment regulations of the 1976 Report exceed the Commission’s jurisdiction because: (1) the statute provides no jurisdiction; (2) the regulations are not “reasonably ancillary” to the Commission’s responsi- bilities for regulation of broadcast television; (3) objectives do not confer jurisdiction; (4) the Com- mission’s ends do not justify its means; (5) the means are forbidden within the Cemmission’s statu- tory jurisdiction. (1) The Statute and the Commission’s Jurisdic- tion Over Cable Television The Commission’s charter, its basic grant of power to regulate, is the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seg. (1970) (Act), in which Congress delegated regulatory authority over (1) common carriers of communications by wire or radio, Title II, 47 U.S.C. §§ 201-21 (1970), and (2) broadcasters using channels of radio transmission, Title III, 47 U.S.C. §§ 301-29 (1970). Because §3(b) includes “transmission by radio of * * * pic- tures * * *,” 47 U.S.C. §153(b) (1970), the Act encompasses broadcast television. Cable systems, first developed in the 1950’s, are neither common carriers nor broadcasters.** Hence the Act contains In its 1976 Report and elsewhere, the Commission has recognized that cable systems are neither common carriers nor Se et ae a Pei aa ») 21 no specific grant of authority over cable systems, and there can have been no Congressional intent regard- ing them. Whether the Commission and the courts should relieve Congress of the need to revise statutes in the light of new technology, General Telephone Co. of Cal. v. FCC, 413 F.2d 390 (D.C. Cir. 1969), cert. denied, 396 U.S. 888 (1969),** neither the nonexist- ence of cable technology in 1934, nor Congressional abstention over the past quarter century, need be broadcasters, but has justified its rules by labelling cable sys- tems as a “hybrid” of both, without explanation of how a system, when it does not offer a service of transmitting the communications of others, incorporates any aspect of “com- mon” carriage, or how a system that employs no frequency of the broadcast spectrum to cablecast, and that sends its transmissions only to its own specific subscribers and not into the airwaves, incorporates any aspect of “broadcasting.” The operative fact would appear to be that cable systems, because they retransmit broadcast programs, and because their sub- scribes may also receive over-the-air broadcast programs, may affect the broadcast television industry. Whether that effect be viewed as a competitive threat to broadcasters, as detri- mental to conventional television service to the public, or as impeding the legitimate statutory goals of the Act, the Com- mission has deemed it necessary, in the absence of Congres- sional guidance, to devote a major effort over recent years to attempted regulation of cable television. ** Concerning the new satellite communication technology, Congress appears to have had little difficulty in adopting ap- propriate legislation, i.e., the Communications Satellite Act of 1962, 47 U.S.C. §§ 701-44 (1970). Further, when Congress has wished to include cable systems in a provision of the Act, it has done so. 47 U.S.C. § 314 (1970), as amended by Act of Oct. 15, 1974, Pub. L. No. 93-443, Titles I, IV, §§ 205(b), 403, 88 Stat. 1278, 1291. 22 considered the sole reason for the present absence of specific, plenary statutory power to regulate the in- dustry called “Cable Television.” Neither the basic rationale for regulation of common carriers (to in- sure fair and equal access to the carrier’s service) nor that for regulation of broadcast transmissions (to preclude bedlam on broadcast frequencies), is applicable to cable systems per se. Congressional! silence does not, however, end the inquiry in every case. Though a statutory void cannot itself create jurisdiction in an agency, and though neither agencies nor courts receive the legis- lative powers not exercised by the Congress, the rapid growth of communications technology requires a unified system of regulation, and sufficient flexibility and breadth of mandate to permit an agency, con- fronted with new technology not covered by statute but having serious impact on technology that is, to adopt such regulations as will enable the agency to protect the public interest.” 25 As authority for its 1976 Report, the Commission lists Sections 2, 3, 4 (i) and (j), 301, 303, 307, 308, 309, 315, and 817 of the Act. 1976 Report, 59 F.C.C.2d at 327. Section 2 states those to whom the statute applies. Section 3 is “defini- tions.” Section 4(i) gives authority for all acts necessary to the Commission’s function. Section 4(j) specifies proceedings. Sections 361, 307, 308, and 309 cover ..censing of broadcast- ers. Section 303 covers powers and duties of the Commission. Section 317 covers announcements by broadcasters. Section 315 covers equal time for political candidates. The sole refer- ence to cable systems appears in Section 315. The 1976 Re- port has no relation to equal time for political candidates on 23 In GTE Service Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), the court held that statutory silence did not preclude regulation of the interaction of data processors and common carriers, while denying Com- mission. authority to regulate data processors them- selves. And there lies the rub. Regulation to protect the public’s vested interest in an established service, against injury from interaction of new technology, is one thing. It is quite another when an agency steps beyond its authority. The former may well be in the public interest. The latter never is.* Respecting the Commission’s jurisdiction over cable systems, the Supreme Court has supplied a measure. Under that guidance, the statute is to be given a broad, not restrictive, interpretation. Fur- cable television, which is covered in a separate reguiation, 47 C.F.R. § 76.205. Realism impels recognition that delegation is a necessary part of the modern legislative function. There being no dele- gation of power over cable systems, we do not here determine a normal “breadth of delegation” question. In a sense, the Commission’s rationale, and the Court’s “reasonably ancil- lary” standard, may be analogized to the “necessary and proper” clause, Const. art. I, § 8, cl. 18, applicable to the Con- gress. If so, the power to issue the present construction and access rules, as discussed infra, is not necessary and proper to “carry into execution” the Commission’s delegated powers over broadcast television. 2° That the compliance deadline for some cable systems was rolled forward to 1986, and that the Commission stands ready to “waive” its requirements for those systems able to sustain the burden of proving undue hardship on them individually, cannot justify an agency action exceeding its jurisdiction ab initio. 24 25 ther, wr cali Peg rs super-Commissioners, — ability of Los Angeles programs in San Diego would inexpert view of the wisdom of the regulations under Ccnemeent, Gon eultann af Gin, lose enneniional tele: review is not to be substituted for the experience and ! vision station, risking loss of advertising revenues expertise of the Commission. To shy, however, on and curtailment or termination of the local station’s those grounds from determination of the legal ques- ; : _ * tls ype service to the public. Petitioner argued that the tion touching the Commission’s jurisdiction, would Commission had no jurisdiction whatever over cable be a denial of effective judicial review of regulatory fon , , ' elie ; be | systems. Citing broad purposes in $1 of Title I, actions “not in accordance with law,” 5 U.S.C. § 706 : . (2)(A) (1970), and an exercise in judicial abdi | 47 U.S.C. §151, the Court described the Commis- tion. Th setae ail . i oy —= omar | sion’s authority over cable television as restricted to — . ere a Sere ee that “reasonably ancillary to the effective perform- for jurisdiction, we determine the jurisdictional issue . e a > 4 , *. af *s*,* f in accord with the “reasonably ancillary” standard ance of the Commission’s various responsibilities for the regulation of television broadcasting.” 392 U.S. expressed in Southwestern, supra, and Midwest Video, supra. at 178. | The rule at issue in Midwest Video, requiring cable (2) The “Reasonably Ancillary’ Standard | systems to originate programs, was also held “rea- Because the Supreme Court sustained its authority a ay © Oe Ces ape o> cumin tim sited: ti then nak tk | ties for broadcast television. Noting that “§ 2(a) ade Vv re io Comaiinden cnn Cant. bas nnd | does not in and of itself prescribe any objectives for , Pree Peas: | which the Commission’s regulatory power over CATV rane bc scapregpr ting: Ren: dhe mec feable television] might properly be exercised,” 406 , Gy | U.S. at 661, the plurality found such objectives in rere a SPIE GUNN Beg | the broad policy statements of §§ 1 and 303(g) * of The jurisdiction found in Southwestern was suffi- , | be permitted until the Commission had had a chance to fully cient to encompass prohibition of importation by | consider the matter. 392 U.S. at 160. cable systems of distant broadcast signals into the 28 Section 303(g) of the Act provides: top 100 markets without a Commission finding of 303. Powers and duties of Commission.— consistency with the public interest. 392 U.S. at ee ee 166-67.*" The Commission’s concern was that avail- (g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger 2* The actual Commission order before the Court was in the | ae. tone tuesee Cees in the public interest nature of a “stay,” under which no further importation would : [Footnote continued on page 26] 26 the Act. The four dissenting justices said the upshot of the plurality’s holding was “to make the Commis- sion’s authority over activities ‘ancillary’ to its re- sponsibilities greater than its authority over any broadcast licensee.” 406 U.S. at 681. The Chief Justice, concurring in the result, concluded that until Congress acts, the Commission should be allowed wide latitude, but also stated: Candor requires acknowledgement, for me at least, that the Commission’s position strains the outer limits of even the open-ended and perva- sive jurisdiction that has evolved by decisions of the Commission and the courts. [406 U.S. at 676. | In our view, the present mandatory access, chan- nel construction, and equipment availability rules burst through the outer limits of the Commission’s delegated jurisdiction.” The 1976 Report nowhere states, and the Commission nowhere argues, that these rules were created and applied to cable sys- 28 [Continued] The plurality opinion did not mention the distinction be- tween “radio,” which transmits in the electronic broadcast frequency spectrum, and cable systems, which do not. 2° We are not alone in the view that the Commission’s juris- diction found in Midwest Video must represent the “outer limits.” The D.C. Circuit, speaking of Midwest Video and Southwestern, has said, “That these cases establish an outer boundary to the Commission’s authority we have no doubt ***” Home Box Office, Inc. v. FCC, No. 75-1280 et al., slip opinion at 34, (D.C. Cir. Mar. 25, 1977), cert. denied, No. 76- 1724 et al. (Oct. 3, 1977). 27 tems to protect a broadcast station’s “contour” as in Southwestern; or to require, as in Midwest, the origi- nation of programs, like broadcasters do; or to gov- ern an activity involving the airwaves; or to protect the growth of broadcast television; or to protect the public interest in continued broadcast television services;* or to protect broadcasting against “un- fair competition” from cable, or to allow the Com- mission “to perform with appropriate effectiveness” ” its responsibilities for broadcast television. The standard established by the Court is “reason- ably ancillary,” not merely “ancillary.” The standard is already broad, and the term “reasonably,” re- quiring some nexus with the Commission’s statutory responsibility, must not be read out of it. Nor can there be deleted what the Court said cable actions must be “reasonably ancillary” to, 2.e., “the effective performance of the Commission’s various responsi- * The 1976 Report, 59 F.C.C.2d at 326, itself divorces the present access rules from cable regulations based on the public interest in commercial television: In the former case [channel capacity and access rules] we seek to promote the expansion of communications services as well as the expansion of the public’s access thereto, while in the latter [limitations on broadest pro- grams retransmittable to cable consumers] we seek to insure that the interest of the public in maintaining a healthy commercial television structure will not be un- dermined. Although there is some relationship between the two considerations, each must be considered on its merits. = Midwes? Video, supra, 406 U.S. at 661. EE eT 28 bilities for the regulation of television broadcasting.” 392 U.S. at 178 (emphasis added). The Commission has not shown the slightest nexus between its 1976 Report access rules and its responsi- bilities for broadcast television. Because the free public access concept, on newly constructed, separately designated channels, has nothing to do with retransmission of broadcast sig- nals on existing channels, the relationship or inter- action between cable and broadcast systems present in Southwestern and in Midwest Video is totally ab- sent here. The present rules are not designed to govern some deleterious interrelationship of cable systems to broadcasting, or to require that cable systems do what broadcasters do, but relate to cable systems alone, and are designed to force them into activities not engaged in or sought; activities having no bearing, adverse or otherwise, on the health and welfare of broadcasting.” Though neither Southwestern nor Midwest Video supports jurisdiction here, it is a “reasonably ancil- lary” standard we apply, and it is the 1976 Report rules we review. Each regulation of cable television must individually stand or fall, not on legal precedent 32 At the time of Midwest Video, cable operators made “no contribution” for the broadcast signals they retransmitted, and the Chief Justice referred to cable systems’ “on stream”- with-broadcasting activities as incurring some burden. Though broadcasters might have been earning more from ad- vertisers through cable’s increase in their audience, cable operators are now required to pay a royalty on retransmission. See 17 U.S.C. § 111 (1976). 29 concerning other regulations, but on whether or not the regulation under the review meets the standard established by the Court.” The Commission reliance on Southwestern and Midwest Video ignores the in- dications in those cases that it has no sweeping jurisdiction over cable television, that whatever juris- diction it may have is contingent upon its delegated powers, and that each attempt to regulate cable sys- tems must be individually justified. Nat'l Ass’n of Reg. Util. Comm’rs v. FCC, 533 F.2d 601, 612 (D.C. Cir. 1976). Thus the Commission argues that the Court’s ap- proval of the mandatory origination rule in Midwest Video constituted effective approval of the present construction and access rules. The contention is dis- ingenuous. The Court was aware that one way of satisfying the origination requirement was to cable- cast programs “produced by others.” ** But that 88 The Commission appears to have no need for the Court’s “reasonably ancillary” standard. In the 1976 Report, 59 F.C.C. 2d at 299, the Commission reaffirmed its view that cable tele- vision “is a hybrid that requires identification and regulation as a separate force in communications.” The difficulty with that self-serving view is manifold: it lacks statutory basis; it is open ended, authorizing almost any regulation; and its “separate force” concept ignores the “reasonably ancillary” standard. A private industry does not “require” federal regu- lation just because a federal agency says it does. *%In discussing the definition of cablecasting the plurality stated: “Cablecasting” was defined as “programing distributed on a CATV system which has been originated by the CATV operator or by another entity, exclusive of broad- oe 30 form of “access” was not the mandatory access required by the present rules. Nor did that form of “access” involve the extensive and expensive con- struction, and equipment purchase and installation, required by the present rules. Further, the plurality opinion specifically stated that no regulation, pro- posed or adopted, other than the program origination requirement, was before the Court, and that no views were intimated on the validity of any other regulations. 406 U.S. at 652 n.4. The Commission’s argument equating its origina- tion rule and the present access rules disregards fundamental differences between them. Under the former, had it been enforced, cable operators would have had discretion and ee content, could have sought financial support, and would have been forced to act like broadcasters. Under the latter, cable operators can have no discre- cast signals carried on the system.” * * * As this defini- tion makes clear, cablecasting may include not only pro- grams produced by the CATV operator, but “films and tapes produced by others, and CATV network program- ing.” * * * Although the definition now refers to pro- graming “subject to the exclusive control of the cable operator,” this is apparently not meant to effect a change in substance or to preclude the operator from cablecasting programs produced by others [406 U.S. at 653 n.6.] The plurality opinion also indicates an awareness that, prior to its Midwest Video decision, mandatory public access re- quirements had been introduced in the 1972 Cable Report, but the only regulations before the Court in Midwest Video were those promulgated in the First Report and Order, 20 F.C.C.2d 201 (1969). See 406 U.S. at 654 n.8. 31 tion or responsibility for program content, may make essentially no charge, and are forced to act like com- mon-carriers.” Nothing, therefore, in the plurality’s approval of the erstwhile origination rule as “reasonably ancil- lary” in Midwest Video may serve to bring the en- tirely distinct mandatory access rules within that standard. To be “reasonably ancillary,” the Commission’s rules must be reasonably ancillary to something. As discussed below, the Commission has-no jurisdic- tion within its statutory grant, under the broadest view of that grant, to force the present free public access rules upon broadcasters, or to make broad- casters into common carriers. Because, as we shall see, the 1976 Report regulations are an attempt to do just that to cable systems, they can fare no better. The Commission having no power to impose these access rules on either broadcast or cable systems, the 1976 Report regulations cannot be “‘reasonably ancil- lary to the effective performance of the Commission’s various responsibilities for the regulation of televi- sion broadcasting.” ss A further difference is that under the origination rule programs would have at least been produced, though program quality and viewer interest were not assured. The present rules merely insure that cable owners will spend money to construct studios and channels and install equipment, passing some or all of the cost to their consumer-subscribers. 82 (3) Objectives (a) Statutory v. Commission Objectives The Commission’s fundamental argument, in sup- port of jurisdiction to issue its 1976 Report regula- tions, is based on “‘objectives.”** That view permeates the 1976 Report and the Commission’s brief here, the latter stating the issues as (1) whether the rules are a “reasonable exercise of agency authority to promote statutory objectives,” in the face of argu- ments “rejected” in Midwest Video, and (2) whether the constitutional arguments, “also similar to those rejected in Midwest Video,” are without merit. Even if a statutory statement of objectives constituted a grant of power, the objectives on which the Commis- sion relies are not those stated in the statute.” The statutory objectives stated in §1 of the Act (not cited as authority in the 1976 Report) are “to make available, so far as possible, to all the people of the United States a rapid, efficient, nation-wide and world-wide wire and radio communication serv- %* The Commission’s argument built on Midwest Video con- centrates on what is claimed to be the Court’s “approval” of the Commission’s “objectives” in that case. ** The entire tone of the Commission’s Notice of Proposed Rulemaking in Docket No. 20508, 53 F.C.C.2d 782, and its 1976 Report, indicates a devotion to the goal, per se, of public access to cable television. “Accordingly, we specifically reaf- firm the commitment which we made to the public, educational, governmental and leased access concepts contained in the Report and Order [Cable Report],” 53 F.C.C.2d at 790, and “reaffirm our commitment to access * * * [and] to pursue our access goals * * *,” 53 F.C.C.2d at 795 (emphasis added). 33 ice * * *.” The Commission does not argue that this, or any one of the statutory sections cited as authority in the 1976 Report, see note 25 supra, contains ob- jectives achieved or approached by the present regu- lations. And well it doesn’t. For the Act, however broadly read, contains no objectives so broad as to encompass whatever is necessary to get everybody on television. If that major foray be a legitimate goal, it must be established not by the Commission or the courts, but by Congress. The “objectives,” cited and relied on by. the Com- mission in its brief here, are of its own design: “increasing the number of outlets for community self-expression and augmenting the public’s choice of programs and types of services.” The Commission draft of objectives in its brief is not the statement submitted to the Supreme Court in Midwest Video, where the full statement read, “to further long established regulatory goals in the field of television broadcasting by increasing the number of outlets of community self-expression and augment- ing the publice’s choice of programs and types of services.” 406 U.S. at 667-68 (emphasis adde . The Commission’s brief thus tailors a set of objec- tives to fit the rules it desires here to sustain. To condone that practice would be to turn judicial re- view of the regulatory process on its head.” %* The Commission says its objectives were “recognized” in Midwest Video. The plurality there did say that the Commis- sion had reasonably determined that the origination rule would further achievement of the objectives cited to the Court, 406 34 If any specific “long established goals in the field of television broadcasting” are here involved, we are not told what they are. In the statement used to persuade the plurality in Midwest Video, “increasing outlets” and “augmenting choices” follow “by,” and are thus set forth as actions leading to the broad- casting goals. We are cited to no instance in which “increasing outlets” and “augmenting choices” have themselves been approved as cable jurisdiction- spawning goals.” If “increasing outlets” and “aug- menting choices” are goals, they cannot be divorced from the context of broadcasting. That, context de- U.S. at 667-68, but the relationship of even those objectives to mandatory access rules was not before or discussed by the Court. It was also indicated generally in Midwest Video that the Commission was not limited to preventing cable’s adverse impact on broadcasting, but could regulate cable systems to- ward achievement of statutory objectives, and that the Com- mission’s objectives were within its “mandate for the regu- lation of television broadcasting.” 406 U.S. at 668 (emphasis added). Though the Court in Midwest Video stated that § 2 of the Act, 47 U.S.C. § 152, contained no objectives “for which the Commission’s regulatory power over CATV might prop- erly be exercised,” 406 U.S. at 661, the Commission cited § 2 as among the statutory sections authorizing the present ac- cess rules. %® As discussed at p. 45 infra, whatever the “long-established goals” are, their achievement cannot lawfully be attempted “in the field of television broadcasting” by means of the access rules here at issue. That fact weighs heavily against the claim of jurisdiction to issue these rules as “reasonably ancillary” to the Commission’s “responsibilities for broadcast television.” Moreover the notion that a federal agency may lawfully com- pel a private industry, in any field, to build facilities, to dedi- cate them to free public use, and to police that use against obscenity, appears at best unique. 35 fines and limits the means by which those goals may be sought. Moreover, if the objectives cited in Mid- west Video and those cited here had been stated identically, that circumstance would not sustain the present rules. The only possible objectives—rules relationship in Midwest Video applied to origination. Because the rules are fundamentally different, re- lationship to an origination rule provides no support for rules enabling anyone and everyone to ‘get on” cable television.” Doubtless “increasing outlets” and “augmenting choices” are laudable, praiseworthy, and desirable actions. Communication is the life blood of a free society, and “freedom of communication” is virtually synonymous with “freedom of speech” and “ficcdom of the press.” It can be assumed that no agency will act toward objectives perceived as evil, but the world has come to regret many actions taken in the name of attractive euphemisms and appeals to goals be- loved by many. “(T]he widest possible dissemination of informa- tion from diverse and antagonistic sources is essen- tial to the welfare of the public.” Associated Press v. United States, 326 U.S. 1, 20 (1945). See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Though those cases did not deal with access-by-all, the quoted principle is unchallengeable. To enliven and enrich the public dialogue is a commendable # “Tn the future everybody will be world famous for fifteen minutes.” Andy Warhol, Boston Book and Art, 3d ed., p. 12 (1970). 36 intent. We are here concerned, however, not with the Commission’s psyche, but with its action. The ques- tion before us is not the sincerity of the Commission or the glorious nature of its objectives. The sole question is whether compelling cable systems to build and dedicate facilities to essentially free public use was within the Commission’s jurisdiction. The Commission calls “increasing outlets’’ and “augmenting choices” its “regulatory policy,” point- ing not to the Act but to the only former action ap- pearing to support that policy, z.e., Midwest Video, which dealt with entirely different regulations. Whether we find the “policy” attractive is irrelevant. A court may favor an agency-esponsed policy, while condemning the agency’s exercise of unauthorized power in a specific action taken in pursuit of that policy. The nobility of a goal or policy cannot justify usurpation, by the Commission or by us, of a power to pursue it in whatever manner we think might “work.” The fundamental principle that governmental agencies are limited to the exercise of power dele- gated by the Congress would be nullified if an agency (like Disraeli, who is said to have preferred the power to write the public’s slogans over the power to write its laws) were at liberty to expand its juris- diction, as far and wide as it wished, by the facile, case-by-case step of re-writing the objectives found in the delegating statute. If “jurisdiction” be syn- onymous with agency-drafted, ad hoc “objectives,” 37 Congress and the courts become essentially super- fluous.** In its 1976 Report and before us, however, the Commission overrides all concerns, practical, statu- tory, legal, and constitutional, upon a single analy- sis, i.¢., it is enough that its objectives be good and that its action be reasonably related to them. But the list of good “objectives” conceivable by the nu- merous regulatory agencies of the federal govern- ment, and perhaps achieveable if they had carte blanche, is endless. And every act of every agency would be justified, jurisdictionally sound, and ju- dicially approved, if values sought were the sole criterion.” “ Congress would still be needed to create and fund agen- cies, and courts might still be needed to rubber-stamp every action likely to achieve the broad “objectives” improvised by the agency. “ The illogic of considering agency objectives as sole jus- tification for agency action is illustrated here. The goal of “increasing the number of outlets for local self-expression” can be facilitated by requiring not just cable systems, but theatres, newspapers, broadcast stations, museums, concert halls, universities, and all who have acquired an audience, to grant free public access to their facilities and to a possible “shot” at their audiences. ACLU points to Nat’l Citizens Comm. for Broadcasting v. FCC, No. 75-1064 (D.C. Cir. March 1, 1977) in support of a presumption in favor of diversity of expression. In that case, however, the court dealt only with broadcasters, holding that the Commission could not refuse to order divestiture of cross- owned radio and television stations, because divestiture in- creases the likelihood that the public will hear broadcasters with diverse views, and because lack of access by a broad- caster to the airwaves impinged on First Amendment policies. 38 The Commission has on other occasions faced the delicate task of softening our troubled edges, when there occurs a restriction of someone’s right to speak. Government may have to act to prevent single owner- ship of all television, radio, and newspaper voices in a community. The Commission’s mandatory access, channel capacity, and equipment rules are quite another matter. Here the Commission engages in no protection of the right to speak. On the contrary, it has embarked, with positive commands, on a crusade to create a public right to use cable facilities. True, the Commission acted here with a view to- ward expanding what it considers the goals of the First Amendment.” Every regulatory agency should have all constitutional “goals” and restrictions on government in mind in carrying out its duties (the more so where, as here, the agency is operating out- There is no conflict with that case in our holding that the Commission lacks jurisdiction to impose access by the public to private cable facilities. That increased opportunities for diverse expression remain high among our society’s desiderata does not confer jurisdiction to do what the Commission did here. **Dean Griswold’s “decisional leapfrogging,” though ap- plied to the Constitution and the courts, may be applied to agencies, which may also decide that, “Well, it really is a good idea.” (Here the obviously good idea of increasing opportuni- ties to exercise freedom of speech) See Griswold, The Judicial Process, 28 Rec. of N.Y.C.B.A. 14, 25 (1973). The present rules are not designed to meet a constitutionally forbidden “abridging” of the right to speak. Nor do they involve the “balanced presentation of ideas” concept of the Fairness Doc- trine. They merely attempt to create a public right to speak on cable television. 39 side its stautory jurisdiction) but we deal here with the Federal Communications Commission not the Fed- eral First Amendment Commission. We are aware of nothing in the Act and have been cited to no other proper source, which places with the Commission an affirmative duty or power to advance First Amend- ment goals by its own tour de force, through get- ting everyone on cable television or otherwise. Rhet- orice in praise of objectives cannot confer jurisdiction. If the Commission desires to operate in an area beyond its statutory borderline of jurisdiction, and to direct an industry, at that industry’s expense, to provide and police new opportunities to speak, prior Concressional direction appears a minimum require- ment.** Composing its own statement of “objectives” will not alone provide the required jurisdictional power.“ (b) Objectives and Retransmission The Commission’s brief justifies its zeal for free publie access to cable television, as it has most of its ** We do not here consider, of course, whether the Congress could constitutionally so direct. ** The Commission’s submission of an objectives statement in support of origination, and its submission of part of that statement here in support of free public access, is a further illustration of the unreliability of broad, malleable, agency- created, all purpose “objectives” as the sole basis for testing jurisdiction. There is no question that public access necessar- ily increases outlets and augments choices. The present agency rationale for requiring cable systems to build additional chan- nels, for example, would support the jurisdiction to order a cable system built where none existed, for that would “in- crease outlets” and “augment choices.” 40 cable regulations, on cabie’s reception and retrans- mission of broadcast signals, i.e., its “free ride” on broadcast television, for which cable should “pay” by meeting Commission “objectives.” In its Cable Re- port, 36 F.C.C.2d at 190, and in its present brief, the Commission states: Broadcast signals are being used as a basic component in the establishment of cable systems, and it is therefore appropriate that the funda- mental goals of a national communications struc- ture be furthered by cable * * *.'*! To the extent that cable systems must now pay royalties for broadcast programs retransmitted, note 32 supra, the Commission’s “free ride” rationale may crumble. Beyond that question, however, the Commission does not “own” broadcast programs, and may not lawfully condition their retransmission on compliance with any and every rule it may devise. In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), a copyright case con- cerned with whether cable systems “performed” re- transmitted broadcast programs, the Court discussed eable’s retransmission activity: Essentially, a CATV [cable television] system no more than enhances the viewer’s capacity to “©The Commission went on to state that cable could not have the economic benefits of signal carriage without having public responsibilities as well. Cable Report, 36 F.C.C.2d at 354. The National Black Media Coalition, et al., also empha- sizes cable’s “free” acquisition of broadcast signals which no longer obtains. See note 32, supra. 41 receive the broadcaster’s signals; it provides a well-located antenna with an efficient connection to the viewer’s television set. * * *. The function of CATV systems has little in common with the function of broadcasters. CATV systems do not in fact broadcast or rebroadcast. Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers. [392 U.S. at 399-400 (footnotes omitted). ]!*"! In Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), then Judge, now Chief Justice Burger said, “{N either is [a broadcaster] a purely private enterprise like a newspaper or an automobile agency. * * * A broad- caster seeks and is granted the free and exclusive use of a limited and valuable part of the public do- main; when he accepts that franchise it is burdened by enforceable public obligations.” 359 F.2d at 1003. A cable system is on this record a private enterprise. No statute requires or authorizes federal franchising of cable systems. In retransmitting broadcast pro- grams, cable systems use no “limited and valuable part,” or any other part, of the federal public do- main. The Commission nowhere tells us, nor is it **In Fortnightly, the Court held that cable systems did not “perform” programs retransmitted and did not, therefore, have to pay royalties. 392 U.S. at 400-01. 42 readily apparent, why the mere retransmission of broadcast signals makes it “appropriate” that cable be shackled to every Commission notion of what is good for the public—or why the mere transmission of broadcast signals makes it “appropriate” that cable be chained (by requiring it and it alone to build, dedicate, and police new and separate facilities for public use) to the Commission’s vision of the future. The Commission does not say that the absence of 20 cable channels, and free public access thereto, has in any manner impeded “the fundamental goals of a national communications structure.” What the Commission does say is that the cable industry must be regulated to give public access because cable is there, and has a “potential” to build a many-chan- neled capacity. A fortiori, says the Commission, cable systems must build and dedicate that capacity, to achieve the Commission’s “objectives.” But noth- ing whatever in the Act, or anywhere else, gives the Commission the unlimited right to say to any private industry, “We believe we have seen the future, and you must construct it.” Because an industry can do something cannot be the sole basis for a federal agency’s peace-time jurisdiction to make it do it. (ce) Objectives v. Unsupported Visions The regulatory philosophy repeatedly expressed in the 1976 Report is that the imponderable whims of cable consumers cannot be relied upon, but that fa- 43 cilities, if built and offered free, will encourage their own use: “ Should compliance with our requirements result in the maintenance of blank or partially blank channels, it is our belief that the time required to realize the full potential for access services will be shortened, for these channels are them- selves a visible and continuing inducement to be filled. [Notice of Proposed Rulemaking, supra, 53 F.C.C.2d at 787-88.] Building for the future, says the Commission, will enable it to take advantage of cable’s “capability,” relying thus on a type of trickle-out theory to facili- tate its social-engineering effort. The rules under re- view are thus self-fulfilling: they first compel the cre- ation of excess capacity, and then impose a public access obligation on the ground that the capacity exists.“* The Commission must have broad discretion ** The 1976 Report resulted from the realization that many equipment and construction requirements of the 1972 Cable Report had proven excessively burdensome, counterproduc- tive, and unrealistic. A major value in a competitive, con- sumer-choice system lies in the limitation of losses to those entrepreneurs who, like the purveyor of the Edsel, guess wrong about consumer preferences. A major detriment re- sides in regulatory action requiring massive construction by an entire industry to meet an agency-envisaged future, and with no evidence of consumer demand. If the guess is wrong, everybody loses. ** Some, but only some, cable systems have already built 20 or more channels, some in response to the Cable Report. That circumstance does not create a jurisdiction in the Commission to compel public access to the facilities of any cable system. 44 “to respond to changes which necessarily emanate from a dynamic industry,” General Telephone Co. of Cal. v. FCC, supra, 413 F.2d at 405, but the present access rules are not a response to change; they are the creation of change, in the “belief” that what the Commission describes as a “societal good,” 1976 Re- port, 59 F.C.C.2d at 296, will result. Visions of theoreticians are in proper context of great value. To achieve, man must visualize. And regulatory agencies must take into account both the future and the future effects of their regulations, as best those effects may be estimated on a proper rec- ord. But visions of the future, with their low batting average for accuracy, serve poorly as the sole basis for regulations having the force of law; ” and prophe- cies of even the wisest regulator are no substitute for u lawful grant of jurisdiction. Regulations like those before us, profoundly alter- ing the obligations of a private business, requiring a fundamental change in its nature, and imposing costs on its consumer-subscribers, should be based on more than an uncertain trumpet of expectation alone. In enforcing regulations designed by the regulator to make futuristic visions come true, courts must pro- ceed with a care proportional to the risk of delivering %® As discussed infra, the Commmission rescinded its manda- tory origination rule because, inter alia, there was no demand for such programs. In its 1976 Report, the Commission re- fused to consider whether any viewer demand existed for access programs, though the “access concept” and its Cable Report had been extant for years. See p. 12 supra. 45 thereby into the regulator's hands an awesome power. For that way may lie not just a totally regulated fu- ture, unpalatable as that may be to a free people, but a government-designed, government-molded, govern- ment-packaged future. The public interest rubric encourages judicial def- erence to an agency’s expertise, not to its prescience. Findings may be presumptively correct. Not so futur- istic guesses. Most importantly, jurisdiction is not acquired through visions of Valhalla. An agency can neither create nor lawfully expand its jurisdiction by merely deciding what it thinks the future should be like, finding a private industry that can be restructured to make that future at least possible, and then forcing that restructuring, in the mere hope that if it’s there it will be used. The Commission asserts that it has a mandate to meet the always-with-us “need for additional means of community expression,” Notice, supra, 53 F.C.C. 2d at 790. We need not determine whether the Com- mission has such mandate. It is enough to hold that, if it does, it cannot pursue it by forcing broadcasters, cable systems, ham radio operators, pay-TV systems, subscription-TV systems, closed-circuit-to theatres systems, data processors, or any other communica- tions industry, to construct facilities and donate them to anyone who walks in. In short, the Commission has not been charged, even impliedly, with a responsibility of “increasing outlets for local expression and augmenting program choices,” by mandating massive rebuilding and by attempting to deliver the audience of A over to B, at A’s expense, just and solely because B wants to get an audience,” and in total disregard of what the paying audience wants. Whether lodgement of that responsi- bility in the Commission be good or bad is not for us to say. It has not occurred. (d) Objectives and the Public Interest Jurisdiction having been found wanting, we dis- cuss the public interest parameters in response to the Commission’s insistence that its public interest ob- jectives authorize its access rules. We do not decide a public interest question, other than to hold that the public interest is not served by agency actions beyond their jurisdiction. See National Broadcasting Co. v. United States, 319 U.S. 190, 224 (1943). The Commission founded its access rules on its be- lief that the “public interest can be significantly ad- vanced by opening of cable channels for use by the public and other specified users who would otherwise not likely have access to television audiences,” 1976 Report, 59 F.C.C.2d at 296, and refused to be de- terred by evidence indicating little likelihood of any- one ever watching access programs. The cable con- sumer was thus made hostage to the Commission’s "A responsibility clearly distinguishable from that of guarding a local broadcaster’s audience against cable invasion from afar, as in Southwestern, supra. em Soeses ee ee en 2 * = 47 faith that the equipment he was forced to buy would be used.” The Commission referred to a “need” for access services, but refused to undertake a search for evi- dence of that need, recommended by two Commission- ers. Notice, supra, 53 F.C.C.2d at 799-801. Absent evidence that the public is or may be interested in listening, the mere belief that the public interest lies in forcing cable operators to build and deliver to each citizen an electronic soapbox would appear entirely conclusory. As did the public interest in mandating origination, p. 73 infra, it may also prove illusory.” In insisting that channels be built, so their blank- ness will be “an inducement to be filled,” the Commis- sion made no reference to the consumer, but stated, “This consideration is true both for the potential channel user as well as the cable operator * * *.” 53 F.C.C.2d at 788. But, as with the tango, communica- tion takes two. Speaker minus listener equals zero. * The Act, § 1, includes as a statutory objective, the pro- vision of an “efficient” communication service. The Commis- sion does not explain, in its 1976 Report or in its brief here, how the construction of channels and installation of equipment that may never be used, so far as this record and the Commis- sion’s experience with mandatory origination would indicate, contributes to efficiency of cable systems or serves the public interest in achievement of this statutory objective. ** Intervenors National Black Media Coalition et al. suggest, in their brief at 46, a rule that cable owners be required to promote access, by seeking access users and advertising access programs to their subscribers, because it is otherwise “im- possible to build an audience for access programs.” (emphasis---~ added). 48 The 1976 Report is concerned with access by the pub- lic, not with access to the public. Absent evidence that there is, or is likely to be, a substantial national demand by “users who would otherwise not likely have access to television audi- ences,” and whether there is, or is likely to be, any demand at all for viewing by consumers, who would have to pay for access equipment (even if no access programs are produced; or no viewers ever watch), the Commission’s argument that its objectives require a public interest conclusion that cable systems must be rebuilt, and mandatory access provided, is serious- ly undermined.” It would appear that satisfaction of the Commis- sion’s desire to advance First Amendment interests in increased communication via its access concept can actually be assured only (1) by an Orwellian require- ment that users must produce and cable consumers must watch access programs,” or (2) by a cable sys- * Evidence of strong viewer demand would not alone confer upon the Commission a jurisdiction sufficient te authorize its 1976 Report mandatory access rules; nor, if jurisdiction were present, would such evidence warrant anything less than the most careful evaluation of First Amendment values involved in the “access concept.” Evidence of user demand, i.e., of de- mand for the free use of another’s property, while perhaps less difficult to find or generate, would appear to provide even less warrant for either a finding of jurisdiction or dismissal of the First Amendment concerns expressed at p. 58 infra. ** Illustrating the problems and dangers inherent in some regulatory attempts to achieve positive goals, as distinguished from prevention of improper, injurious, or criminal conduct. [Footnote continued on page 49] as 2.2 49 tem’s provision of access programs in response to its subscribers’ desire to view them. If, in broadcasting where viewing is free, “the interest of the viewer is paramount,” Columtja Broadcasting System, Ine. v. Democratic National Committee, 412 U.S. 94 (1972) (CBS); Red Lion Broadcasting, supra, it would ap- pear more so in cable systems, where subscribers must pay. A public interest question may be stated as: Who decides whether cable consumers shall pay millions for equipment to enable access programs? The Com- mission, or the consumer? Nothing of record reflects a public interest in denying consumers that choice, or in forcing consumers to buy what they may refuse to purchase voluntarily. Certainly a merely conjec- tural connection between mandatory access and like- lihood of its increasing true local communication, even if jurisdictionally permissible, would caution us, were we deciding where the public interest lay, against > [Continued] One intervenors’ brief views public access as an opportunity for a minority spokesman to address members of his minority grouping. Contra, are those who find that use undesirable, as a potential splintering of society. Lapierre, supra note 5, at 120 n.536. Competitive forces in radio broadcasting, with limited fre- quencies but without mandatory access rules, have not encour- aged sameness, but have produced “specialty” stations: ail news, black, classical, country, rock and underground. See Note, Filthy Words, The FCC, and the First Amendment: Regulating Broadcast Obscenity, 61 Va. L. Rev. 579, 617 (1975). 50 concluding that the public interest would be harmed if the choice remained with the consumer.” Given the general desirability of the Commission’s objectives, we find no basis, in the record made, for concluding that those objectives render the access rules before us “reasonably ancillary” to the Commis- sion’s responsibilities for regulation of broadcast tele- vision, or that those objectives confer upon the Com- mission a jurisdiction broad enough to encompass the present access rules. (4) Ends v. Means To countenance regulation without at least implied authorization of the peorie’s representatives, because the purpose be benign, is to adopt the view that “the end justifies the means” and stop there. But in gov- ernment as in life, a good end does not justify any °° Cable subscribers represent only a small portion of the television viewers of America, and the 1976 Report exempts from its impact the cable systems serving some of them. The relationship of the public interest in “increasing community outlets” and “augmenting program choices and services” to free public access on cable facilities would be more apparent if the Commission “objectives” were also sought among the vast majority of television viewers to whom programs are supplied within the Commission’s broadcasting jurisdiction, and if the 1976 Report regulations had not required that cable systems hold open a channel for access, even if no one desires access, and precluded the cable owner from using that channel to increase program diversity with his own or pay-cable pro- gramming. 1976 Report, 59 F.C.C.2d at 316-17. The net re- sult of most attempts to regulate cable systems appears to have been to restrict, not augment, the number and type of programs available to cable consumers. aS = eek. et et! + 51 and every means. As above indicated, origination and madatory access are very different means indeed, and, as discussed below, the Commission is statutorily pro- hibited from enforcing its present mandatory access rules within its statutory jurisdiction over broadcast- ers. _ It is not jur'sdictionally so that means are imma- terial, so long as broadly encompassing “objectives” can be restated from the purpose statement in § 1, or from the powers and duties statement in § 303(g), of the Act. Referring to Southwestern and Midwest Video, the D.C. Circuit has stated: That these cases establish an outer boundary to the Commission’s authority we have no doubt . and if judicial review is to be effective in keeping the Commission within that boundary, we think the Commission must either demon- strate specific support for its actions in the lan- guage of the Communications Act or at least be able to ground them in a well-understood and consistently held policy developed in the Commis- sion’s regulation of broadcast television. [Home Box Office, Inc. v. FCC, supra note 29, at 34.] A “well-understood and consistently held policy de- veloped in the Commission’s regulation of broadcast television” includes regulatory means as well as regu- latory goals. In Home Box Office, after noting that the Commission was without authority to control the program content of broadcast television in the man- ner sought under the anti-siphoning rules there at is- sue, the court said: 52 Moreover, given the similarities between cable- casting operations and broadcasting, we seriously doubt that the Communications Act could be construed to give the Commission “regulatory tools” over cable-casting that it did not have over broadcasting. * * * Thus, even if the siphon- ing rules might in some sense increase the pub- lie good, this consideration alone cannot justify the Commission’s regulations. [Home Box Of- fice, Inc. v. FCC, supra note 29, at 41-42.]'°" In Home Box Office, the Commission was employ- ing means not available in broadcast regulation to control cablecasting activities already underway. Its present effort to employ means not available in broad- cast regulation is even further beyond its jurisdic- tion, for here the Commission is attempting to compel the initiation of particular (access) cablecascing ac- tivities. It is at best anomalous to assert that broad- casting objectives are furthered by use of regulatory tools not lawfully useable to regulate broadcasting.” °* Home Box Office may be interpreted as denying the Com- mission “regulatory tools” over cable it does not have over broadcasting, as equating government power over cable sys- tems with that over newspapers in the context of intrusion into First Amendment rights, or as confining the Commission to regulation of cable activities having a nexus with cable’s carriage of broadcast signals. Each interpretation would apply here, and each necessitates the setting aside of the 1976 Report access rules. ** In a post-hearing submission, the Commission cites Nat'l Citizens Comm. for Broadcasting v. FCC, No. 74-1700 et al. (D.C. Cir. Nov. 11, 1977) and the indication therein that the Commission should consider whether broadcasters could sat- isfy their fairness doctrine obligations by voluntarily provid- | | | 53 As we have said, regulatory action cannot be “reason- ably ancillary” to nothing. We need not determine what distinctions the Com- mission may draw between broadcasting and cable systems. It is sufficient to hold that, in making any such distinction, the Commission may not exceed its jurisdiction. However attractively the Commission’s objectives are interpreted, reinterpreted, or re-pack- aged, regulatory actions forbidden as means to ach- ieve them within its statutory jurisdiction cannot be considered “reasonably ancillary” to that jurisdic- tion.” ing public access. We are at a loss to understand what bearing the cited case has on the present proceeding, which does not involve the fairness doctrine, but which does involve com- pelled access and an effort to impose common carrier type obligations, or to understand how, if at all, the case can be thought to have overturned the Commission’s policy respecting forced access to broadcast facilities reflected in Columbia Broadcasting System, Ine. v. Democratic Nat’l Comm., 412 U.S. 94 (1973) or to have repealed the statutory prohibition against treating broadcasters as common carriers, p. 53 infra. * To the extent, if any, that “increasing the number of out- lets for community self-expression and augmenting the pub- lic’s choice of programs and types of services” are legitimate goals achieveable in broadcasting, they would appear auto- matically achievable with respect to those broadcast programs retransmitted by cable. The retransmitted broadcast pro- grams have already had the benefit of Commission regulation. Where cable provides the only television service, and monopo- lization is a legitimate concern, 2 reyuirement that public in- formation programs of broadcast television be retransmitted would appear to be an application of the same regulatory tool used to achieve the same public interest goals achieved within the Commission’s jurisdiction over broadcasters. 54 (5) The Means Are Forbidden Within The Commission’s Statutory Jurisdiction (a) Forced Access Counsel for the Commission admitted at oral argu- ment that the mandatory access rules here at issue could not be enforced upon broadcasters. Though counsel said the reason lay in scarcity of broadcast frequencies, it appears to have escaped Commission attention that it is the scarcity of broadcast signals that excuses its limited regulatory intrusion on First Amendment and other rights of broadcasters. The Commission’s notion that the absence of scarcity in the potential number of cables removes the limits on its authority has things backward. The absence of scarcity removes the excuse for intrusion. The reasons why access-to-cable cannot be justified as related to the broadcast milieu are fundamental and pervasive. First, as indicated throughout this opinion, many impedimenta to enforcement of manda- tory access have nothing to do with scarcity of broad- cast frequencies. Second, the Commission’s breadth of regulatory power over “semi-public” broadcasters, though limited, is expressly statutory and greater, not less, than any ancillary power it may have over pri- vate media, like cable systems. See National Broad- casting Co. v. United States, supra, at 216-219 (1943). Third, the Commission’s confirmed policy is that no private individual or group has a right to use broadcast frequencies, and it has recognized that ac- tion contrary to that policy is beyond its jurisdiction. 55 If there be a relation between public access and the Commission’s “long established regulatory goals in the field of television broadcasting,” it escapes detec- tion in the Commission’s actions within its jurisdic- tion. The Commission firmly rejected an opportunity to move even partially toward those goals, as it here interprets them, when it was requested to force paid and limited, not free and fullblown, access on broad- casters. Its resistance was sustained by the Supreme Court, which established that no person has a consti- tutional right of access to broadcast television. CBS, supra.” * The Commission correctly says that CBS held that it need not force access on broadcasters, not that it could not do so, and that the Court referred to Commission plans to apply access to cable systems. As indicated in CBS, 412 U.S. at 113, the Commission and the Congress have consistently recognized the serious statutory and constitutional prohibitions against enforcement of public access upon broadcast facilities. The Court in CBS did make a passing reference to proposed access rules for cable systems, but only in the course of discussing the possibility of some form of “limited” access to broadcast- ing at some future date, id. at 131, and no Commission rule, access or other, was before the Court. Nor were these access rules before the court in Home Box Office, supra note 29. The Commission inappropriately argues that footnote 82 in the latter opinion shows that the D.C. Circuit “would approve an access obligation.” In all events the non-dicta statements of the Court in CBS, and those in Home Box Office, are far more persuasive than passing remarks and footnotes relating to matters not before the courts. Concentrating on the latter, the Comriission disregards language indicating the impro- priety of ‘ts access rules, e.g., the non-public interest in access as favoring the wealthy, 412 U.S. at 123; the difficulty of ap- plying the Fairness Doctrine and how its suspension would 56 Indeed, if there be a “public interest’ in achieve- ment of the Commission’s “long established goals’’ through access, the Commission has not attempted to serve that public interest by requiring broadcasters, who reach the vast majority of television viewers and are clearly within its jurisdiction, to give (or even sell), even limited time to the public on a first come, nondiscriminatory basis; nor does the Commission deny broadcasters the right to control the material going out over their facilities. This court will not interpret the Commission’s “long established goals” one way when the Commis- sion is operating near the ancillary fringes of its statutory jurisdiction, and another way when it is operating clearly within its statutory jurisdiction; nor can we believe that the Commission’s “long estab- lished goals,”’ interpreted by the Commission as auth- izing public access, are legitimate when applied to cable‘systems and illegitimate when applied to broad- casters. Still, at the very time the Commission was telling us that only practicality impeded its full authority to force the present free public access ru’es upon broadcasters, it refused even to inquire into the need for broadcasters to give even a little time (petition- ers sought 90 seconds out of every 7,200 seconds) to Public Service Announcements (PSAs), and to adopt rules enabling citizen groups, minority spokesmen, lose more than gained, id. at 124; and Congress’ conclusion that “the public interest in being informed requires periodic accountability * * *,” id. at 125. 57 and in general the same access-seekers involved here, to have their announcements aired. Petition to Insti- tute a Notice of Inquiry and Proposed Rule Making on the Airing of Public Service Announcements by Broadcast Licensees, FCC 77-685 (Released Oct. 13, 1977). The petitioners’ “objectives” were paraphrases of those relied on here by the Commission, i.e., an in- crease in “diversification” of “programming,” com- munity service, meeting local needs, favoring “those citizen groups whose voices typically have not been heard on the broadcast media,” and providing “need- ed assistance to citizen groups in communicating their programs to the public.” Petitioners also asked that broadcasters make facilities and technical assistance available. Broadcasters argued, in Petition, supra, that the ‘“nroposed rules would be an impermissable intrusion into [their] programming prerogatives,” that “re- quiring a broadcaster to air a particular type of pro- gram matter constitutes censorship,” that providing technical assistance would be a “heavy burden” on small staffs, and that giving “special access to certain groups” was contrary to “the Commission’s policy that no private individual or group has a right to the use of broadcast facilities.” In its decision deny- ing an inquiry, the Commission stated: After considering these arguments we believe that even if the First Amendment and Section 326 of the Communications Act are not an abso- lute barrier, adoption of the instant proposal would be an inappropriate intrusion into the sen- 58 sitive area of programming. For this reason and because of the licensee’s knowledge of his com- munity, he is accorded broad discretion in pro- gramming matters, including the scheduling and selection of PSAs. * > * * * * * As to providing a preference for citizen group announcements, we note that no private individual or group has a right of special access to the airwaves. [Petition, supra, at 4, 6] '*' Again, in a recent proceeding, Changes in the En- tertainment Formats of Broadcast Stations, Notice of Inquiry, 57 F.C.C.2d 580 (1976), Memorandum Opinion and Order, 60 F.C.C.2d 858 (1976), the Commission concluded that it lacked authority to reg- ulate broadcast program formats, because that action is analogous to imposing common carrier responsibili- ties on broadcasters and is thus prohibited by Section 3 of the Act, 60 F.C.C.2d at 859; and because “[i]t is impossible to determine whether consumers would be better off [with a particular format] without ref- erence to the actual preferences of real people.” /d. at 864. The Commission’s 1976 Report attempts to impose a “public forum” format on cable systems, * At this point, the Commission added a footnote: “See Columbia Broadcasting System, Inc. Vv. Democratic National Committee, 412 U.S. 94 (1973), in which the Commission’s long-standing policy against such special access was upheld.” The Commission did not, as it does here, refer to the Court’s passing remark about the possibility of developing a “limited” form of access, though the remark related, as did CBS and the Petition, to a demand for limited access to broadcasting. LL TE Re th 59 and, as discussed below, it does impose common car- rier responsibilities, and it totally ignores the prefer- ences of cable consumers, who are “real people.” Thus the Commission exceeded its own recognized jurisdictional limitations in the field of television broadcasting, when it attempted to impose its 1976 Report mandatory access, channel construction and equipment rules on cable systems.” The Commission does not in truth rely here on any “reasonably ancil- lary” jurisdiction. The jurisdictional genesis for the present access rules is not even allegedly lurking in the lacuna of the Act.” It arises not from a power over broadcasting but from a Commission act of cre- ation. Creation, however, is a function of the Al- mighty, and in the creation of jurisdictional authori- ty, the almighty is Congress, not the Commission. (b) Common Carrier Section 3(h) of the Act, 47 U.S.C. § 153(h), pro- vides that “a person engaged in radio broadcasting shall not * * * be deemed a common carrier.” In *? The present rules are an effort by the Commission to exer- cise the “authority over activities ‘ancillary’ to its responsi- bilities greater than its authority over any broadcast licensee” referred to in the Midwest Video dissent. 406 U.S. at 681. **The Commission’s power to license broadcasters exists only “insofar as there is demand for same * * *,” 47 U.S.C. § 307(b) (1970), and the issuances of licenses is the means “to provide a fair, efficient, and equitable distribution of radio service * * *,” 47 U.S.C. §307(b) (1970). Nothing in the Act authorizes the Commission to create licensees, or to force anyone to become public access broadcasters, whether to “in- crease outlets” or for any other reason. National Association of Regulatory Utility Commis- sioners v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) cert. denied, 425 U.S. 992 (1976), and in National Association of Regulatory Utility Commissioners v. FCC, 533 F.2d 601, 608-09, (D.C. Cir. 1976), the court defined the two prerequisites of communications common carriage: (1) provision of service to users indiscriminately; and (2) transmission of intelligence of the user’s own design and choosing. The 1976 Re- port mandatory access rules require: (1) provision of cable service to users indiscriminately; and (2) transmission of intelligence of the user’s own design and choosing. Thus the 1976 Report imposes common carrier responsibilities on cable systems, and the at- tempt to bludgeon cable systems into becoming com- mon carriers is an exercise specifically forbidden the Commission within its delegated powers. It is no more jurisdictionally sound than the same action would be if exerted against broadcasters.” The 1976 Report creates a dilemma and impales itself on the horns. The regulations require that a cable system cablecast access users’ programs. If the Commission’s equation of “cablecast’” to “broadcast” be made, the cable system, as broadcaster, cannot ** The Commission is statutorily prohibited from censorship. 47 U.S.C. $326 (1970). The present access rules not only impose common carrier obligations, it imposes prior censor- ship duties, see p. 66 infra, on cable operators. There being no public access to broadcasting, such prior censorship duties have never been imposed on broadcasters, which the Commis- sion is empowered to regulate directly. le ab et 61 have the Commission’s common carrier type access rules enforced upon it without violation of the Act.” There can be no question that the 1976 Report mandatory access rules are an attempt to convert cable systems into common carriers with respect to their bandwidths not used to retransmit broadcast signals. In the parent Cable Report, the Commission emphasized that it contemplated “a multipurpose cable operation combining carriage of broadcast sig- nals with program origination and common carrier service. 36 F.C.C.2d at 197. (emphasis added) It repeated that contemplation in its Reconsideration, 36 F.C.C.2d at 352.” “If “cablecaster” and “cablecasting” be read as “broad- caster” and “broadcasting,” the access rules actually require that a cable operator become a common-carrier type broad- caster, or a broadcasting-type common carrier. In rejecting petitioner’s First Amendment arguments, the 1976 Report, 59 F.C.C.2d at 299, defends the access rules as permissible, “C(w]hen broadcasting, or related activity by cable television systems is involved * * *.” The Commission did not explain why, if “broadcasting * * * is involved,” it did not apply its broadcast rules. Moreover, because cablecasts are sent only through the cable system’s cables, and only to the system’s paying subscribers, the equation of cablecasting to “broad- casting,” i.e., to sending a communication out over radio fre- quencies for free pick-up by anyone with a receiver, appears at best tenuous. * That Congress has recognized the giving of the micro- phone to everyone, even if they pay for it, is making the micro- phone owner a common carrier, is reflected in the quotations from legislative history quoted in CBS, supra, at 105-110. ACLU argues that cable systems have in recent times adopted practices which it says are common carrier in nature, citing Nat'l Ass’n of Reg. Util. Comm’rs v. FCC, 533 F.2d 601 To keep its “Certificate of Compliance,” a cable system must comply with the Commission’s manda- tory access regulations (or seek a waiver, which has no jurisdictional effect). In Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 592, 599 (1926), the Court found it an unwarranted intrusion into the conduct of a private enterprise for the govern- ment to mandate that trucking companies offer their services as common carriers or not at all, rejecting the argument that the state could so condition the use of highways. We find it an unwarranted intrusion into the conduct of a cable enterprise for the Commis- sion to mandate that cable companies offer services as common carriers or not at all, and we reject the argu- ment that it may so condition broadcast program re- transmission, which has not even the nexus to cable- casting that highways may have to trucking. Tele- prompter Corp. v. Columbia Broadcasting System, Ine., TOSI, 405 (1974). Prior to promulgation of mandatory access rules, cable operators had full discretion to decide what originated programming to distribute over their fa- (1976), which dealt with point-to-point, two-way, nonvideo communications, not free public access to cable systems facili- ties. To the extent that cable systems elect to engage in or interact with common carrier activities, those activities or interactions may be subject to regulation; the problem comes when the Commission attempts to force common carrier ac- tivities. ACLU’s insistence that the access rules of the 1972 Cable Report be resurrected, by essentially full common car- rier regulation under Title II, with freedom to set lease rates that will attract capital, illustrates the identity of access rules and coercion of cable systems into common carrier activities. cilities. That would have remained true if the Com- mission had enforced its origination rule, under which cable operators need not have transmitted communi- cations of all comers. Access rules, removing discre- tion from cable operators and forcing them to act as common carriers, do not prevent a business entity from acting in a manner injurious to the public inter- est. The present rules merely accomplish the coercion into common carrier operations of a business neither acting as, nor holding itself out as, a common carrier. The Commission chooses not to meet disectly Mid- west’s argument that it lacks jurisdiction to force common carrier responsibilities upon cable systems. It merely relies on the broad allegation that its access rules “are reasonably related to achieving objec- tives.” That reliance must fail, for imposftion of common carrier responsibilities to achieve broadcast goals impermissibly intermixes the two fields which Congress expressly kept asunder, by its enactment of § 3(h) of the Act, and its separate treatment of com- mon carriers (Title I1) and broadcasters (Title III) in the Act. ** “So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been as- signed jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow ‘com- mon carrier’ in nature. The proper question * * * is * * * whether the rules adopted promote statutory objectives” 1976 Report, 59 F.C.C.2d at 299. The {gemmission does not tell us how or why its access rules are not far more than merely denominated as “somehow” common carrier in nature, or why they are not in fact common-carrier-type rules. 64 Though the Commission tells us that Midwest Video legitimized its present common carrier type ac- cess regulations, the Commission told the Supreme Court that the origination rule there involved was an attempt to require cable systems “to meet some of the same basic standards of responsibility to the pub- lic that are imposed on broadcasters.” Brief for ap- pellants United States and FCC at 15 n.12, Midwest Video, supra.” Because the Commission’s 1976 Re- port regulations are an attempt to require cable sys- tems to meet “standards of responsibility to the pub- lie’ that cannot lawfully be “imposed on broadcast- ers;” they are necessarily divorced from, rather than reasonably ancillary to, the Commission’s regulation of broadcasting. II Constitutional Considerations The 1976 Report access regulations having exceed- ed the Commission’s jurisdiction, it is unnecessary to rest our decision on constitutional grounds and we de- cline to do so. Benanti v. United States, 355 U.S. 96, 99 (1957); Neese v. Southern Railway, 350 U.S. 77, 78 (1955); Peters v. Hobby, 349 U.S. 331, 338 (1954). Moreover, communications technology is dy- namic, capable tomorrow of making today obsolete. Referring to First Amendment rights of broadcasters and the public, in CBS, supra, the Court said, “At ** There was no common carrier question raised in Midwest Video. The origination rule had at least the merit of com- pelling cable operators to do no more than what broadcasters must do, i.e., originate programs. Mates os 65 the very least, courts should not freeze this neces- sarily dynamic process into a constitutional holding.” 412 U.S. at 132. Though we find it unnecessary to resolve the seri- ous constitutional issues raised, we do hold that where, as here, potential incursions into sensitive con- stitutional rights are involved, careful scrutiny is required in delineating the scope of authority that Congress intended the agency to exercise. Even the broadest opinion, that of the plurality in Midwest Video Corp., recognizes that the Com- mission can act only for ends for which it could also regulate broadcast television. Indeed, even this standard will be too commodious in certain cases, since * * * the scope of the Commission’s constitutionally permitted authority over broad- cast television in areas impinging on the First Amendment is broader than its authority over cable television. [Home Box Office, Inc. vy. FCC, note 29 supra, at 33-34.] Moreover, the First Amendment overtones, and other constitutional considerations present in the 1974 Report, are such as to reinforce our conclusion on the jurisdictional issue.” ** That the origination rule in Midwest Video was free of the potential First Amendment problems created by manda- tory access rules serves to further strengthen our conclusion that the “reasonably ancillary” standard, though it legitimized origination, cannot encompass mandatory access. If jurisdiction existed, necessitating resolution of the con- stitutional issues, we would not interpret the Commission’s 66 (a) The First Amendment This is the first case raising the First Amendment implications of a Commission effort to enforce un- limited public access requirements. The Commission has shown a proper care and concern for the First Amendment rights of broadcasters, and for the Act’s ($ 326) prohibition of censorship, as illustrated by its resistance to demands for lirnited access to broad- east television. CBS, supra; Petition, FCC 77-685, supra. That care and concern is remarkably absent from the 1976 Report, compelling unlimited access to cable television. Nor does the Commission make any effort before us to indicate that, in its 1976 Report, it engaged in the required, though difficult, “balancing” task in which it has traditionally engaged with respect to First Amendment values in exercising its jurisdic- tional responsibilites for broadcast television. Con- centrating on creating a public right to exercise free- dom of speech on cable television, the Commission gave no thought, on this record, to freedom of the press. The Commission points to no First Amendment right which it believes overrides the First Amend- ment rights it has recognized in broadcasters but re- fused to recognize in cable operators. Instead, the Commission’s brief dismisses Midwest’s concern for statutory grant as permitting violation of constitutional rights. Greene Vv. McElroy, 360 U.S. 474, 506-508 (1959); Kent Vv. Dulles, 357 U.S. 116, 125-130 (1957). 67 its First Amendment rights in four paragraphs, say- ing only that cable systems retransmit broadcast sig- nals, that Midwest Video authorizes rules designed to achieve the Commission’s program diversity ‘‘ob- jectives,” and that First Amendment goals are pro- moted by access rules, citing Red Lion Broadcasting Co., supra, and language therein concerning an “un- inhibited marketplace of ideas” and “monopolization of that market.” Assessment of the proper balance of First Amend- ment rights must be based on a record, not merely on argument regarding precedent or on resort to an “ob jectives” rubric. Government control of business op- erations must be most closely scrutinized when it af- fects communication of information and ideas, and prior restraints in those circumstances are presump- tively invalid. See Bantam Books, Inc. vy. Sullivan, 372 U.S. 58, 70 (1963). “The line between informing and entertaining is too elusive for the protection * * *” of First Amendment rights to turn on that distinction. Winters v. New York, 333 U.S. 507, 510 (1948). In wresting from cable operators the control of privately owned facilities for transmission of pro- grams not acquired from public airwaves, the Com- mission makes no effort to show that action to have been necessary to protect a “clear public interest, threatened not doubtfully or remotely, but by clear and present danger,” or to show “the gravest abuses, endangering paramount interests [which would] give occasion for permissible limitation.” Thomas v. Col- 68 lins, 323 U.S. 516, 530 (1945). As the Court de- scribed the majority error below in CBS, supra at 126, the Commission appears to have “minimized the difficult problems” created by its access rules, and thus “failed to come to grips” with the important First Amendment considerations present—‘“the risk of an enlargement of government control over the content of [cablecast] discussion of public issues.” In its desire to accommodate “users who would otherwise not likely have access to television audi- ences,” 1976 Report, 59 F.C.C.2d at 296, the Com- mission made no delineation of whether cable sys- tems, absent imposition of its access rules, are public forums. If they are not, it would appear that the present access rules cannot withstand constitutional muster. Every individual’s right to speak, precious and paramount as it is, does not include every indi- vidual’s right to be given the possibility of an audi- ence by government fiat, or to speak in a non-public forum, like a newspaper, a magazine, or on the Sen- ate floor. See American Communications Associa- tion v. Douds, 339 U.S. 382, 394 (1950); Avins v. Rutgers, State University of New Jersey, 385 F.2d 151, 153 (3rd Cir. 1967), cert. denied, 390 U.S. 920 (1968). The First Amendment rights of cable opev- ators rise from the Constitution; the public’s “right” to “get on television” stems from the Commission de- sire to create that “right.” It is not enough, therefore, to merely cite the re- transmission of broadcast signals by cable systems. As above indicated, no nexus exists between the func- 69 tion of retransmitting broadcast signals and the dis- tinct function of cablecasting. Teleprompter Corp. v. Columbia Broadcasting System, Inc., supra. Cable- casting is communicating, requiring thorough and penetrating consideration of the communicator’s First Amendment rights.” Cablecasting, however, involves no transmitting over the airwaves or the use of sig- nals acquired from the airwaves.” If there be any arguable relationship between cablecasting and retransmission, it would appear far too tenuous and uncertain to warrant a eavalier over- riding of First Amendment rights present in cable- casting. Concurring in Home Box Office, supra note 29, Judge Weigel expressed well the concern noted here, in stating: [T]he Commission lacks the power to control the content of programs originating in the studios of cablecasters. Such programs involve neither retransmission of signals received over the air from conventional television broadcasting nor transmission over television broadcasting fre- quencies. They are offered to users of television *° Communication via cable has been held to constitute pro- tected speech, Weaver v. Jordan, 64 Cal.2d 235, 411 P.2d 289, cert. denied, 385 U.S. 844 (1966); as have movies, Joseph Burstyn, Inc. Vv. Wilson, 343 U.S. 495 (1952). "The Commission’s authority to regulate with respect to the technicalities invoived in cable systems’ use of microwaves was recognized by this court in Black Hills Video Corp. v. FCC, 399 F.2d 65 (8th Cir. 1968). 70 sets on terms the users are free to accept or reject. * * * In relation to cablecasting, the power is so fraught with the potential for impingement upon First Amendment rights that it should not be sanctioned by implication. Under its 1976 Report access rules, the Commis- sion is present in each cable operator’s studio, hold- ing open the door to all who wish to enter and use it, (turning its back, however, as we shall see, when the pornographer enters). Under some circumstances, the Commission’s access rules effectively silence the cable operator, denying him all use of his own facili- ties, for any exercise of his First Amendment rights. 1976 Report, 59 F.C.C.2d at 316-17. The Fairness Doctrine applicable to cablecasting, 47 C.F.R. § 76.209, would involve the Commission when circum- stances give rise to its application, but application of that doctrine to access programs has not on this rec- ord been considered by the Commission.” The con- stitutional considerations generated by its access rules require the Commission to evaluate carefully the ex- tent to which it may reside in the studios of cable- casters as one of the issues too sensitive to permit superficial dismissal on the mere ground that cable 72 One commentator believes that access rules were the Com- mission’s way out of “the fairness cave.” Price, supra note 5, at 551-52 n.61. See note 62 supra, regarding the dilemma noted by the Court in CBS, respecting the application or waiver of the Fairness Doctrine when public access is man- dated. 71 Operators, in a separate activity, retransmit broad- cast signals. Though neither Southwestern nor Midwest Video dealt with First Amendment concerns, the Commis- sion says it “contemplated” third party access as among its “objectives” in issuing the origination rule approved in Midwest Video. If that be so, what may have rested on the backroads of the Commission’s mind is irrelevant. Our interest is in what the Com- mission did; and what it did in Midwest Video is entirely distinct from what it did here. Moreover, our concern at this point is with a fun- damental First Amendment difference, which the Commission appears to ignore. Under origination the cable operator may permit access of third parties of his selection, and retain ultimate editorial discretion and responsibility regarding what programming ma- terial goes out over his lines. Under the present ac- cess rules he may choose neither user nor material. The irrelevance of “objectives,” as a sole basis for jurisdiction, is even more apparent when objectives are cited as sole justification ior access rules, regard- less of their effect on First Amendment rights. Red Lion, supra, involved application of the Fairness Doc- trine to broadcast television. Its language cannot vali- date the present access rules or justify a disregard of the constitutional concerns they entail. Citation of Midwest Video and Red Lion cannot serve as a basis for failure to make the First Amendment evaluations required here. 72 The Commission does not favor us with any views as to: (1) why cable systems are not entitled to the same First Amendment rights as other private media, such as newspapers and movie theatres; (2) how compelled access to cable facilities is distinguishable, in a First Amendment context, from compelled ac- cess to broadcast facilities; or (3) how its rule, 47 C.F.R. § 76.256(d) (1)-(3), requiring cable operators to exercise prior restraint of obscenity,” and the ex- posure of cable owners to law suits resulting from its access rules, can be justified. Though we refrain from resting our decision on the Constitution, we note the emphasis in the Commission’s brief on the notion that access is old and established ground; but when serious First Amendment questions are raised, deja vu will not do. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court held unconstitutional a state effort to compel access to the pages of a news- paper, even for the limited purpose of attack-response. In Home Box Office, supra note 29, at 72, the court said: [S]earcity which is the result solely of economic conditions is apparently insufficient to justify even limited government intrusion into the First "> The Commission’s request for remand in American Civil Liberties Union v. FCC, Case No. 76-1695 (D.C. Cir.), indi- cating the possibility of repeal of prior censorship responsi- bilities, has no effect here. The Commission may elect not to repeal the rule, and repeal would not resolve other problems involved in the access rules generally. See note 19 supra. 73 Amendment rights of the conventional press, see Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247-256 (1974), and there is nothing in the record before us to suggest a constitu- tional distinction between cable television and newspapers on this point. [footnote omitted] The present access rules strip from cable operators, on four of their channels, all rights of material selec- tion, editorial judgment, and discretion enjoyed by other private communications media, and even by the “semi-public” broadcast media. Cable operators must allow use of their facilities, for transmission toward their paying subscribers, of any program material, no matter the quality, interest, rele [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0972%3A04. Public record. Not legal advice.