UNITED STATES SUPREME COURT DECISIONS ON-LINE

The Federal Communications Commission (FCC) promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by public, educational, local governmental, and leased-access users, and to furnish equipment and facilities for access purposes. Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. During the rulemaking proceedings, the FCC rejected a challenge to the rules on jurisdictional grounds, maintaining that the rules would promote

"the achievement of longstanding communications regulatory objectives by increasing outlets for local self-expression and augmenting the public's choice of programs."

On petition for review, the Court of Appeals set aside the FCC's rules as beyond the agency's jurisdiction. The court was of the view that the rules amounted to an attempt to impose common carrier obligations on cable operators, and thus ran counter to the command of § 3(h) of the Communications Act of 1934 that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier."

Held: The FCC's rules are not "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U. S. 157, 392 U. S. 178, and hence are not within the FCC's statutory authority. Pp. 440 U. S. 696-709.

(a) The FCC's access rules plainly impose common carrier obligations on cable operators. United States v. Midwest Video Corp., 406 U. S. 649, distinguished. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis; operators are prohibited from determining or influencing the content of access clubjuris

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programing; and charges for access and use of equipment are delimited. Pp. 440 U. S. 699-702.

(b) Consistently with the policy of the Act to preserve editorial control of programming in the licensee, § 3(h) forecloses any discretion in the FCC to impose access requirements amounting to common carrier obligations on broadcast systems. The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. Although § 3(h) does not explicitly limit the regulation of cable systems, Congress' limitation on the FCC's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Pp. 440 U. S. 702-707.

(c) In light of the hesitancy with which Congress has approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common carrier basis, this Court is constrained to hold that the FCC exceeded the limits of its authority in promulgating its access rules. The FCC may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. Authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress. Pp. 440 U. S. 708-709.

571 F.2d 1025, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J.,and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 440 U. S. 709. clubjuris

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