United States v. Southwestern Cable Company

PETITIONER: United States
RESPONDENT: Southwestern Cable Company
LOCATION: Telephone Booth

DOCKET NO.: 363
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 392 US 157 (1968)
ARGUED: Mar 12, 1968 / Mar 13, 1968
DECIDED: Jun 10, 1968

Facts of the case

Question

Media for United States v. Southwestern Cable Company

Audio Transcription for Oral Argument - March 12, 1968 in United States v. Southwestern Cable Company

Audio Transcription for Oral Argument - March 13, 1968 in United States v. Southwestern Cable Company

Earl Warren:

Number 363, United States et al.Petitioner, versus Southwestern Cable Company et al. and Number 428, Mid West Television Incorporated et al. versus Southwestern Cable Company et al.

Mr. Geller, you may proceed with your argument.

Henry Geller:

The interim relief order which the Commission issued preserving the status quo was appealed to the Court of Appeals for the Ninth Circuit.

And that Court held that we lacked jurisdiction over community and antenna television, relying chiefly on opinion of this Court in Regents v. Carroll and that brings me to the first legal issue in the case, our jurisdiction over the off the air CATV.

Potter Stewart:

Is it clear to you what the Court of Appeals on the Ninth Circuit did hold and that it did hold that?

Henry Geller:

We believe, yes, they did hold that that they we're saying that we lacked jurisdiction over a non-licensee CATV and we think subsequent cases, the Valley Vision Case particularly has borne that out.

There was no question of an interim relief order in Valley Vision.

They state our order and cited only the Southwestern Case here.

Potter Stewart:

And all that is crystal clear from this opinion law, is it?

Henry Geller:

No.

The opinion is subject to construction.

Although, we think that reading it – we read it a saying that we lacked jurisdiction over CATV when it relies upon Carroll to say that we cannot extend our orders to a non-licensee and that would not just be interim relief order because there would also be rules.

And as I say in a subsequent case where there was no question of interim relief valley vision, the Court state our order and made clear in the all argument Judge Barnes was on the panel that they felt they had got to the jurisdictional issue and had held that we lacked jurisdiction over the off the air CATV.

So this is from the appellant?

Henry Geller:

That is correct.

That case was not brought up here?

Henry Geller:

It was not brought.

In the Buckeye Case, our jurisdictional position was fully sustained.

We believe that our jurisdiction stems directly from the explicit provisions of the Act.

Section 1 of the Act calls for the establishment of -- as efficient and nationwide system of wire and radio communication as possible and says that authority is being centralized in the FCC to achieve that.

Section 2 (a) of the Act says that the provisions of this Act are applicable to all interstate communication by wire and radio and Sections 4 (i) and 303 give us broad rule making powers to carry out the provisions.

Now, CATV comes within the provisions because it is an interstate communication by wire within the definition in 3 (a) and 3 (e) and that is not really in dispute here.

It also comes within the provisions that we think in another basis that it’s a -- it comes within the definition in 3 (b) of radio communication because it is an instrumentality incidental to the transmission of energy by radio and the definition includes that too, but it does come thus within two way.

The provisions of the Act are applicable and we have made rules to carry out certain provisions and the provisions which we are carrying out, we say, are, 307 (b) which calls for this nationwide plan of local television, 303 (h) which is very important here and which says that the Commission can establish the service area stations so as to achieve that nationwide plan, and 303 (s) which is the all channel law which calls for the promotion of UHF, again, is to get this system of local television.

And what -- it is that the CATV is in effect extending the service area stations.

That is what it does and the heart of our position is that since the provisions of the Act are applicable to it, we can regulate that extension of the service area by CATV in order to prevent the frustration of this nationwide plan of local service.

Now, we argue that our action therefore comes explicitly within the terms of the Act, but it also we urge, comes within the spirit and the purpose of the Act.

As this Court said in Pottsville, the very reason for the creation of the FCC was to keep a grip on this dynamic new technology that changes so much to prevent a chaotic allocation situation from resulting and in NBC, the Court said, we have been given comprehensive powers to achieve that purpose.

And how does ever been the purpose of you and the submission of that?

Henry Geller:

Yes, Your Honor.