In 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.

At 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.

Although 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 cable programs.

Arguing 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 "common carriers."

Unlike 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.

-Michael Epstein