the 1979 case of FCC v. Midwest Video Corp., the United States
Supreme Court held that the Federal Communications Commission did
not have the statutory authority to regulate public access to cable
television. The legal decision, known more simply as the Midwest
Video Case, marks the first time the Supreme Court refused to extend
the FCC's regulatory power to the cable industry. In May of 1976,
the FCC used its rule-making authority to regulate the public's
access to cable television "air" time and production facilities.
Under the rules, cable television systems with 3,500 or more subscribers
were required to upgrade to at least twenty channels by 1986 and
set aside up to four of those channels exclusively for low-cost
access by community, educational, local governmental and leased-access
users. Cable operators would have had to make channel time and studios
available on a first-come, first-served basis to virtually anyone
who applied and without discretion or control over programming content.
an FCC hearing, and, later, before the D.C. Court of Appeals, Midwest
Video and other cable systems objected to the FCC's regulatory intervention
into their operations, arguing, among other claims, that the Commission's
cable access rules were beyond the scope of the agency's jurisdiction
as set forth in the Communications Act of 1934. Citing more than
a decade of favorable legal precedent, the FCC rejected the cable
industry's position as an overly narrow interpretation of its jurisdiction.
the Communications Act does not explicitly grant cable television
jurisdiction to the FCC, the Supreme Court had previously held in
1968 that FCC regulations which are "reasonably ancillary to the
effective performance of the Commission's various responsibilities
for the regulation of television broadcasting" fell within the Commission's
mandate. In that case, United States v. Southwestern Cable Co.,
the Court upheld FCC rules that required cable systems to retransmit
the signals of local broadcast stations and seek prior FCC approval
before making certain programming decisions. Similarly, in a 1972
case known as United States v. Midwest Video Corp., America's
highest court upheld FCC rules that required cable systems with
3,500 or more subscribers to create original programming and provide
studio facilities for the production and dissemination of local
specifically that the intent of the 1976 public access rules was
no different from the programming rules at issue in the 1972 Midwest
Video Case, the FCC maintained that controlling public access to
cable was just a logical extension of its broadcasting authority.
The Supreme Court, however, disagreed. Although the Court suggested
that the public access rules might violate cable operators' first
amendment rights to free speech and fifth amendment protections
against the "taking" of property without due process of law, the
justices declined to make a broad constitutional ruling. Instead,
the Court distinguished the public access rules from the FCC's previous
cable rules by declaring them in violation of Section 3 (h) of the
Communications Act of 1934 which limits the FCC's authority to regulate
broadcasters, common carriers are communication systems that permit
indiscriminate and unlimited public access. Although the FCC has
authority to regulate common carriers such as telephone networks
and CB radio, it is expressly prohibited from subjecting broadcasters
to common carrier rules under Section 3 (h). Because the Court felt
that public control of local cable access would have, in effect,
turned cable systems into common carriers, Midwest Video Corp.--and
the cable industry--prevailed.
Ronald. Cable Television: A Reference Guide To Information.
New York: Greenwood, 1988.
Douglas H., Michael H. Botein, and Mark D. Director. Regulation
Of The Electronic Mass Media: Law And Policy For Radio, Television,
Cable, And The New Video Technologies. St. Paul, Minnesota:
T. "The Cable Fable Revisited: Discourse, Policy And The Making
Of Cable Television." Critical Studies in Mass Communication
(Annandale, Virginia), 1987.
States v. Midwest Video Corp., 406 U.S. 649 1972 (Midwest Video
Case I); United States v. Midwest Video Corp., 440 U.S. 689 1979(Midwest
Video Case II).
T. "Cable I, II, III." (Three part article). The New Yorker
(New York), 20, 27 May; 3 June 1985.
Communications Commission; Distant