United States v. Midwest Video Corporation

PETITIONER: United States
RESPONDENT: Midwest Video Corporation
LOCATION: Christian County, Kentucky

DOCKET NO.: 71-506
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 406 US 649 (1972)
ARGUED: Apr 19, 1972
DECIDED: Jun 07, 1972

ADVOCATES:
Harry M. Plotkin - for respondent
Lawrence G. Wallace - argued the cause for the United States et al

Facts of the case

Question

Media for United States v. Midwest Video Corporation

Audio Transcription for Oral Argument - April 19, 1972 in United States v. Midwest Video Corporation

Warren E. Burger:

We will hear arguments next in number 71-506 United States against Midwest Video Corporation.

Mr. Wallace, you may proceed whenever you’re ready.

Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the court.

In this case, upon the challenge of the respondent, which is an operator of cable television systems in Missouri, New Mexico and Texas, the Court Of Appeals for the Eighth Circuit held invalid, a rule of the federal communications commission, which provides that a cable television system having 3,500 or more subscribers may not in the absence of waiver of the rule by the commission, which is not stated in the rule but it had become clear in subsequent reports, may not distribute the signals of television broadcast stations unless it “also operates to a significant extent as a local outlet by cablecasting” and by having available “facilities for local production and presentation of programs, other than automated services”.

The cablecasting simply means the providing of programming on the system, without the use of broadcast signals.

Most cable television service does originate as broadcast programming of the system that brings in through its antennas.

Cablecasting would be programming that it provides itself, rather than from broadcast services.

The background of the rule is this.

In June of 1968, this Court in the South Western Cable Company decision in 392 US upheld the FCC’s authority to stay cable transmission of distant broadcast signals into a community pending a hearing.

The situation there involving the 100 largest television markets.

The court held in that case that cable television systems engage in interstate communication by wire or radio within the meaning of Section 2(a) of the Communications Act and that the systems are therefore subject to the commission’s regulatory jurisdiction at least to the extent, that the commission's regulation is reasonably ancillary in the words of the court to the effect of performance of the commission's various responsibilities for the regulation of television broadcasting.

With uncertainties about the commission’s jurisdiction in regulatory authority over cable television thus dispelled at least to this extent, which I will argue as basically all we need here.

The commission has undertaken a major effort to integrate the rapidly burgeoning cable systems into the national communication systems in ways that will be consistent with and in furtherance of the public interest policy objectives of the Communications Act.

Since the decision in South Western, the commission has so far devoted more than three years of intensive study to cable television.

In a series of rulemaking proceedings, which began in December of 1968 with the notice of rulemaking, reprinted in the appendix, which resolved and the rule is at issue here.

Byron R. White:

That notice announced that the commission would explore “how best to obtain consistent with the public interest standard of the Communications Act, the full benefits of developing communications technology for the public, with particular immediate reference to CATV technology and potential services.”

Well, I think there is nothing expressed in the Act that says that a cablecasting as such is subject to the commission's regulation.

Let's assume which, is true that a cablecaster carried no broadcast signals, he just originated programs.

Is there something in the Act?

Lawrence G. Wallace:

There is nothing in the Act on that subject.

Byron R. White:

It had to be a common carrier by wire to be subject I take it.

Lawrence G. Wallace:

Well, we needn't reach that issue that there is nothing in the Act on that subject, it would still be communication by wire, there might be interstate aspects to it.

Byron R. White:

Commission does have jurisdiction over interstate communications by wire?

Lawrence G. Wallace:

Yes, it does.

Byron R. White:

Are they common carriers?

Lawrence G. Wallace:

Well under Southwestern, we don't think that that's limited to common carriers but this case no more in a Southwestern requires the court to reach that issue.

Byron R. White:

But if there was some real statutory authority, obvious statutory authority over just wired communications, we wouldn't have had this argument.

Lawrence G. Wallace:

Well, presumably, the Court of Appeals would have decided the case differently.

I agree, Your Honor, but I --