Filed: Jan. 18, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60502 _ CITY OF DALLAS, TEXAS, Petitioner, VERSUS FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. * * * * * * * * * * * * * * * * * * * * _ No. 96-60581 _ CITY OF DALLAS, TEXAS, Petitioner, VERSUS FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. * * * * * * * * * * * * * * * * * * * * _ No. 96-60844 _ NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner, VERSUS FEDER
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60502 _ CITY OF DALLAS, TEXAS, Petitioner, VERSUS FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. * * * * * * * * * * * * * * * * * * * * _ No. 96-60581 _ CITY OF DALLAS, TEXAS, Petitioner, VERSUS FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. * * * * * * * * * * * * * * * * * * * * _ No. 96-60844 _ NATIONAL CABLE TELEVISION ASSOCIATION, INC., Petitioner, VERSUS FEDERA..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-60502
_______________
CITY OF DALLAS, TEXAS,
Petitioner,
VERSUS
FEDERAL COMMUNICATIONS COMMISSION
and
UNITED STATES OF AMERICA,
Respondents.
* * * * * * * * * * * * * * * * * * * *
_______________
No. 96-60581
_______________
CITY OF DALLAS, TEXAS,
Petitioner,
VERSUS
FEDERAL COMMUNICATIONS COMMISSION
and
UNITED STATES OF AMERICA,
Respondents.
* * * * * * * * * * * * * * * * * * * *
_______________
No. 96-60844
_______________
NATIONAL CABLE TELEVISION ASSOCIATION, INC.,
Petitioner,
VERSUS
FEDERAL COMMUNICATIONS COMMISSION
and
UNITED STATES OF AMERICA,
Respondents.
BELLSOUTH TELECOMMUNICATIONS, INC.,
Petitioner,
VERSUS
FEDERAL COMMUNICATIONS COMMISSION
and
UNITED STATES OF AMERICA,
Respondents.
UNITED STATES CONFERENCE OF MAYORS
and
NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS,
Petitioners,
VERSUS
FEDERAL COMMUNICATIONS COMMISSION
and
UNITED STATES OF AMERICA,
Respondents.
_________________________
Petitions for Review of Orders of the
2
Federal Communications Commission
_________________________
January 19, 1999
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The petitioners seek review of two orders of the Federal
Communications Commission (“FCC” or “Commission”) interpreting the
open video system (“OVS”) provisions of the Telecommunications Act
of 1996 (“the Act”), Pub. L. No. 104-104, 110 Stat. 56 (1996).1 We
grant the petitions for review and affirm in part and reverse in
part the Commission's orders.
I. Introduction.
Consistent with the Act’s primary goal of encouraging
competition in networked communication industries, the OVS pro-
visionsSSchiefly § 653 of the Act, 47 U.S.C. § 573SSaim to encourage
local exchange carriers (“LEC's”) to enter the market for video
programming delivery as OVS service providers. OVS's, which are
designed to compete with traditional cable television service,
resemble both common carriers and cable systems: Like common
carriers, they must share carriage capacity with unaffiliated
programming providers, but they may provide some programming of
1
See Implementation of Section 302 of the Telecommunications Act of 1996,
Second Report and Order, FCC 96-249 (released June 3, 1996) (“Rulemaking Order”),
on reconsideration, Third Report and Order, FCC 96-334 (released Aug. 8, 1996)
(“Reconsideration Order”).
3
their own, as cable companies may do. See 47 U.S.C.
§ 573(b)(1)(A).
To hasten the development of OVS's, Congress directed the FCC
to “complete all actions necessary (including any reconsideration)
to prescribe regulations” governing OVS's “[w]ithin 6 months after”
February 8, 1996, “the date of enactment of the [1996 Act].”
47 U.S.C. § 573(b)(1). Pursuant to this command, the agency
promulgated the orders under review.
Five petitioners challenge various aspects of the orders. The
challenges fall into three categories. The National Association of
Telecommunications Advisors and Officers (“NATOA”), the City of
Dallas, and the U.S. Conference of Mayors (collectively, the
“Cities”) complain of the impact of the Commission's OVS rules on
local governments. The National Cable Television Association
(“NCTA”) challenges the agency's treatment of cable operators under
the OVS rules. Finally, BellSouth, a LEC, attacks the requirement
that OVS operators obtain FCC approval of their certifications
before commencing construction related to their OVS's.
Agreeing with the Cities that the FCC exceeded its statutory
authority in granting OVS operators an enforceable right of access
to local rights-of-way, we reverse the rule preempting local
franchise requirements for OVS's. While we do not decide the issue
of what additional fees localities may charge OVS operators, we
affirm the limitations on fees localities may charge pursuant to
4
§ 653(c)(2)(B) of the Act, 47 U.S.C. § 573(c)(2)(B). We also
affirm the FCC's decision not to authorize local governments to
require OVS operators to provide institutional networks.
As for NCTA's claims, we reverse the agency's determination
that LEC's who are also cable operators may not provide OVS service
in the absence of effective competition. We invalidate and remand
the Commission's rules generally prohibiting in-region cable
operators from providing video programming on unaffiliated OVS
systems but permitting OVS operators to waive this prohibition. We
affirm, however, the rule prohibiting non-LEC cable operators who
do not face effective competition from operating OVS systems, and
the rule imposing the effective competition requirement on cable
operators whose franchises have expired. As BellSouth urges, we
reverse the requirement that carriers obtain the Commission's
approval before constructing new physical plants needed to operate
OVS systems.
II. Historical Background of the OVS Provisions.
We begin by tracing the history of cable regulation and
considering how OVS service differsSSboth in how it operates and in
how it is regulatedSSfrom traditional cable service and from common
carriers. Cable television first became publicly available in the
1950's. For more than a decade, the FCC refrained from regulating
the new service, believing it lacked authority to do so under
either the common carrier provisions of title II of the Communica-
5
tions Act or the radio transmission provisions of title III.
By the mid-1960's, however, the FCC had concluded that it
could not effectively discharge its statutory duty to regulate
broadcasting in the public interest without regulating cable, whose
proliferation could significantly affect broadcasting. The Supreme
Court upheld the agency's authority to adopt cable regulations that
were “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, 178 (1968). In 1970, the Commission, concerned with
preventing the expansion of local monopolies, adopted rules
prohibiting telephone companies from providing cable service in
their telephone service areas (the “cable-telephone company cross-
ownership ban”).
Almost twenty years after the FCC began regulating cable,
Congress weighed in for the first time, enacting the Cable
Communications Policy Act of 1984, which added title VI provisions
governing cable operators to the Communications Act. To preserve
the role of municipalities in cable regulation, title VI provided
that, with limited exceptions, “a cable operator may not provide
cable service without a franchise.” 47 U.S.C. § 541(b)(1).
Title VI also codified the cable-telephone company cross-ownership
ban.2
2
See 47 U.S.C. § 533(b) (1985), repealed by Telecommunications Act of 1996
(continued...)
6
The robust growth of the cable industry in the 1980's caused
the FCC to reassess the need for the cable-telephone company cross-
ownership ban, and in 1992 the Commission recommended that Congress
lift the ban. When Congress did not immediately do so, the FCC
amended its rules to permit the provision of “video dialtone,” a
new service that would offer video programming over telephone
company facilities without violating the cross-ownership restric-
tion.
The Commission planned to regulate video dialtone under
title IISSthe common carrier provisions of the Communications Act.
Despite the Commission’s good intentions, the video dialtone policy
failed to provide any significant competition for cable systems.
Meanwhile, incumbent cable operators largely maintained their
monopoly positions.
Faced with this situation, Congress, in enacting the Telecom-
munications Act of 1996, sought to introduce competition into the
market for video programming delivery. Most significantly, the
statute repealed § 613(b), 47 U.S.C. § 533(b), the cable-telephone
company cross-ownership ban. See 1996 Act, § 302(b)(1). In
addition, § 653 of the 1996 Act, 47 U.S.C. § 573, created a new
method for entry into the market for video programming delivery:
the OVS.
2
(...continued)
§ 302(b)(1), Pub. L. No. 104-104, 1996 U.S.C.C.A.N. (110 Stat. 124) (hereinafter
“1996 Act”).
7
Section 653 distinguishes OVS operators from common carriers
of video programming and traditional cable operators. Unlike
common carriers, OVS operators may select some of the video
programming transmitted over their systems; but, unlike cable
operators, OVS operators must make most of the channel capacity on
their systems available to unaffiliated video programming providers
on a nondiscriminatory basis. See 47 U.S.C. § 573(b)(1)(A). If
demand for OVS channel capacity exceeds supply, an OVS operator may
select programming for no more than one-third of the system's
channel capacity. See 47 U.S.C. § 573(b)(1)(B).
In other respects, OVS operators face fewer regulatory burdens
than do common carriers or cable operators. OVS operators are
exempt from the title II requirements governing common carriers.
See 47 U.S.C. § 573(c)(3). In addition, a number of the title VI
obligations imposed on traditional cable operatorsSSincluding the
franchise requirement under § 621 and the payment of franchise fees
under § 622SSdo not apply to OVS operators. See 47 U.S.C.
§ 573(c)(1)(C).
The Act does provide for some continued local regulatory
authority. Section 653 permits local governments to assess fees on
the gross revenues of OVS operators “in lieu of” cable franchise
fees, see 47 U.S.C. § 573(c)(2)(B), and § 601(a) of the Act
specifically provides that the amendments shall not impliedly
preempt state or local law, see 47 U.S.C. § 152(c)(1).
8
III. Standard of Review.
Most of the petitioners' claims involve the question whether
the FCC had statutory authority to adopt various regulations in the
orders under review. When statutory construction is at issue, we
must review the Commission's interpretation under the standard
articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), under which we first must
determine “whether Congress has directly spoken to the precise
question at issue.”
Id. at 842. Where the intent of Congress is
clear, “the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”
Id. at 842-43. On
the other hand, “if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the
statute.”
Id. at 843.
In resolving this question, we “may not substitute [our] own
construction of a statutory provision for a reasonable interpreta-
tion made by the administrator of an agency.” Id. at 844.
Instead, we generally must defer to the agency's interpretation
unless it is “manifestly contrary to the statute.”
Id. at 844.
The petitioners bear the “difficult burden” of proving that the
FCC's interpretation of an ambiguous statutory provision conflicts
9
with the statutory scheme.3
IV. The Cities' Claims.
The petitioners representing the interests of local govern-
mentsSSthe City of Dallas, the U.S. Conference of Mayors, and
NATOASScomplain of the effects of the FCC orders on local govern-
ment. They assert that the FCC erred (1) in exempting OVS
operators from local franchise requirements; (2) in limiting the
compensation localities may recover under § 653(c)(2)(B) for use of
local rights-of-way; (3) in failing to authorize local governments
to require OVS operators to provide institutional networks; and
(4) in adopting rules that permit entities other than LEC's to
become OVS operators.
A. Exemption of OVS Operators from Franchise Requirements.
The Cities assert that the Commission exceeded its statutory
authority in exempting OVS operators from local franchise require-
ments. In the alternative, they claim that the agency's resolution
of this issue violates the Fifth and Tenth Amendments to the
Constitution. Because we agree with the Cities that the preemption
of local franchising authority violates the plain meaning of the
3
See Sta-Home Home Health Agency, Inc. v. Shalala, 34 F.3d 305, 309 (5th
Cir. 1994) (quoting Sun Towers, Inc. v. Heckler,
725 F.2d 315, 325 (5th Cir.
1984)).
10
statutory text, we do not reach the Cities' constitutional
arguments.
Section 653(c)(1)(C) of the 1996 Telecommunications Act states
that, with a few exceptions, parts III and IV of title VI shall not
apply to OVS operators. See 47 U.S.C. § 573(c)(1)(C). Included in
the title VI provisions that do not apply is § 621(b)(1), which
provides that, with some minor exceptions, “a cable operator may
not provide cable service without a franchise.” 47 U.S.C.
§ 541(b)(1). Based on the interplay of these statutory provisions,
the FCC reasoned that “[a]ny State or local requirements . . . that
seek to impose Title VI 'franchise-like' requirements on an open
video system operator would directly conflict with Congress'
express direction that open video system operators need not obtain
local franchises as envisioned by Title VI.” Rulemaking Order
¶ 211.
The Commission thus concluded that once it has certified an
entity as an OVS operator, that entity has an enforceable right to
access the right-of-way. That enforceable right is not subject to
local franchising authority. Id.; Reconsideration Order ¶ 193.
The FCC's preemption of local franchising requirements is at
odds with the Act's preservation of state and local authority and
with a “clear statement” principle the Supreme Court has articu-
lated. Section 601(c)(1) of the Act, which was adopted at the same
time as § 653, directs that “the amendments . . . shall not be
11
construed to modify, impair, or supersede Federal, State or local
law unless expressly so provided in such Acts or amendments.” 1996
Act, § 601(c)(1). We conclude that § 653(c)(1)(C)'s statement that
parts of title VI, including § 621, shall not apply to OVS
operators does not constitute the express preemption of local
franchising authority that § 601(c) requires.
Section 621 states that a cable operator may not provide cable
service without a franchise. This amounts to a federal requirement
that a cable operator obtain a franchise from a local authority
before providing service. Eliminating § 621 results in the
deletion of the federal requirement that cable operators get a
franchise before providing service; it does not eviscerate the
ability of local authorities to impose franchise requirements, but
only their obligation to do so. Consequently, simply saying that
§ 621 shall not apply to OVS operators does not expressly preempt
local franchising authority, as § 601(c)(1) requires.
The FCC's broad reading of preemptive authority also conflicts
with Supreme Court precedent. In Gregory v. Ashcroft, 501 U.S. 452
(1991), the Court held that if Congress intends to preempt a power
traditionally exercised by a state or local government, “it must
make its intention to do so 'unmistakably clear in the language of
the statute.'”
Id. at 460 (quoting Will v. Michigan Dep't of State
Police,
491 U.S. 58, 65 (1989)). In this statute, Congress
certainly did not provide the clear statement that Gregory
12
requires. Because § 601(c)(1) and Gregory prohibit implied
preemption, and because § 653(c)(1)(C) expressly preempts only the
federal requirement of a local franchise, not the localities'
freedom to impose franchise requirements as they see fit, the
Commission erred in ruling that § 653 prohibits local authorities
from requiring OVS operators to obtain a franchise to access the
locally maintained rights-of-way.
The Commission argues that the position we adopt is based on
“the flawed premise that local governments possess cable franchis-
ing authority independent of § 621.” Without citing any
authority,4 the agency states that “[a]fter the 1984 Cable Act
added Title VI to the Communications Act, Section 621 became the
exclusive source of local franchising authority over cable
operators,” id., so § 653(c)(1)(C)'s directive that § 621 “shall
not apply” to OVS operators expressly preempts local franchising
authority over OVS operators, as § 601(c)(1) and Gregory require.
We cannot agree with the Commission's unsupported assertion
that local franchising authority arises from § 621. While the
agency cites no support for its position, there are persuasive
4
Instead of citing authority for the proposition that franchising
authority rests solely on § 621, the Commission merely argues that the Cities
must recognize that the source of their franchising authority lies in § 621, for
“[i]n 1994, when a number of local authorities . . . challenged the FCC's
determination that the franchise requirement of § 621 did not apply to video
dialtone, not a single city argued that it had independent authority to require
a video dialtone franchise regardless of whether § 621 applied.” There may have
been a number of reasons for various cities' decision, and we will not attempt
to discern a rule of law from unaffiliated parties' litigation strategies in
another case.
13
dicta supporting the contrary view that § 621 merely codified and
restricted local governments' independently-existing authority to
impose franchise requirements.5
Moreover, the legislative history of the 1984 Cable Act
contradicts the Commission's claim that that Act established § 621
as the sole source of franchising authority. According to the
House Report on H.R. 4103, whose terms were later incorporated into
S. 66 to become the 1984 Cable Act,
Primarily, cable television has been regulated at the
local government level through the franchise pro-
cess. . . . H.R. 4103 establishes a national policy that
clarifies the current system of local, state, and Federal
regulation of cable television. This policy continues
reliance on the local franchising process as the primary
means of cable television regulation, while defining and
limiting the authority that a franchising authority may
exercise through the franchise process.
H.R. Rep. No. 98-934, at 19 (1984). These sources suggest that
franchising authority does not depend on or grow out of § 621.
While § 621 may have expressly recognized the power of localities
to impose franchise requirements, it did not create that power, and
elimination of § 621 for OVS operators does not eliminate local
franchising authority.
The Commission could come to a contrary conclusion only by
5
See National Cable Television Ass'n v. FCC, 33 F.3d 66, 69 (D.C. Cir.
1994) (noting that one of the purposes of the 1984 Cable act was to “preserve[]
the local franchising system”); Time Warner Entertainment Co., L.P. v. FCC,
93 F.3d 957, 972 (D.C. Cir. 1996) (“[P]rior to the passage of the 1984 Cable Act,
and thus, in the absence of federal permission, many franchise agreements
provided for [public, educational and governmental access] channels. . . .
Congress thus merely recognized and endorsed the preexisting practice . . . .”).
14
reading its preemptive authority broadly. But § 601(c) precludes
a broad reading of preemptive authority, as does Gregory, 501 U.S.
at 460 (opining that courts must “assume Congress does not exercise
[the power to preempt] lightly” and must require Congress to state
clearly its intent to preempt). Chevron deference is not appropri-
ate here, for Congress, in § 601(c), already has resolved the issue
of preemption of local franchising authority.
The FCC also argues that to achieve Congress's deregulatory
objectives, it is necessary to interpret the statute to preempt
local franchising authority to achieve Congress's deregulatory
objectives. The provisions of title VI that “shall not apply” to
OVS operators do not merely require cable operators to obtain a
franchise from a local authority; they also place limits on the
conditions and restrictions a local franchising authority may
impose. See, e.g., 47 U.S.C. § 541(a)(2). The Commission
maintains that if § 653(c)(1)(C) does not preempt local franchising
authority altogether, but instead simply directs that local
authorities will no longer be constrained to regulate OVS operators
as provided in Title VI, localities will be able to impose more
onerous regulations on OVS operators than on cable operators. This
result would conflict with Congress's express desire to reduce the
regulatory burdens OVS operators face relative to their cable
15
operator counterparts.6
While the agency's argument is plausible, it does not affect
our holding. The statutory text, read in the light of Gregory's
and § 601(c)(1)'s warnings against implied preemption, does not
support the Commission's interpretation, and apparent congressional
intent as revealed in a conference report does not trump a pellucid
statutory directive.
B. Limitation of Localities' Compensation Under § 653(c)(2)(B)
to a Percentage of the Gross Revenues of the OVS Operator.
Section 653(c)(2)(B) provides for local franchising authori-
ties to collect fees from OVS operators “in lieu of” franchise
fees:
An operator of an open video system under this part may
be subject to the payment of fees on the gross revenues
of the operator for the provision of cable service
imposed by a local franchising authority or other
governmental entity, in lieu of the franchise fees
permitted under section 542 of this title. The rate at
which such fees are imposed shall not exceed the rate at
which franchise fees are imposed on any cable operator
transmitting video programming in the franchise area
. . . .
47 U.S.C. § 573(c)(2)(B). In the orders on review, the Commission
concludes that the fees assessed on OVS operators under this
6
Congress plainly wanted to lower the regulatory hurdles OVS operators
face. The Conference Report explained that Congress was “streamlining the
regulatory burdens of [open video] systems” for a number of reasons, including
the need to promote competition and encourage new entrants in the market for
video programming delivery. See H. Conf. Rep. No. 104-458 (hereinafter
“Conference Report”) at 178. In addition, the heading that Congress adopted as
part of § 653(c)SS“REDUCED REGULATORY BURDENS FOR OPEN VIDEO
SYSTEMS”SSunderscores its purpose to subject OVS's to decreased regulation. See
47 U.S.C. § 573(c).
16
provision will be based solely on the gross revenues of the
operators, “not includ[ing] revenues collected by unaffiliated
video programming providers from their subscribers or advertisers.”
Rulemaking Order ¶ 220. In other words, localities can charge OVS
operators a percentage of the operators' revenue but not a
percentage of their unaffiliated programmers' revenue.
The Cities argue that the Commission erred in calculating the
fees chargeable to OVS operators. They assert that (1) the statute
does not preclude a franchise authority from levying charges on
persons, unaffiliated with the OVS operator, who provide video
programming on the OVS; and (2) the statute does not say that the
franchise authority may not impose additional charges on OVS
operators beyond the “in lieu of” fees authorized by
§ 653(c)(2)(B). Limiting an OVS operator's fees to a percentage of
its gross revenue would result in OVS operators' paying less than
cable operators, who do not have extensive obligations to make
their channels available to unaffiliated programmers and thus
collect for themselves most of the revenue generated by their cable
systems. This result, the Cities contend, is contrary to Con-
gress's desire, expressed in the legislative history, to maintain
“parity” between cable operators and OVS operators.7
We affirm the rule limiting the fees collectible under
§ 653(c)(2)(B) to a percentage of the OVS operator's gross revenue.
7
See Conference Report at 178 (describing the fee-in-lieu provisions as
“another effort to ensure parity among video providers”).
17
The plain language, which merely authorizes “fees on the gross
revenues of the operator,” forecloses the argument that fees
charged under § 653(c)(2)(B) may be based on the revenues of
unaffiliated video providers.
The reference in the legislative history to “parity” between
cable operators and their OVS counterparts is not dispositive. The
parity to which Congress referred in the Conference Report is a
parity of rates, not actual fees: The statute provides that “[t]he
rate at which such fees are imposed shall not exceed the rate at
which franchise fees are imposed on any cable operator transmitting
video programming in the franchise area . . . .” 47 U.S.C.
§ 653(c)(2)(B). Hence, the narrow rule in the agency orderSSthat
the fee-in-lieu assessed on OVS operators must be based solely on
the gross revenues of the operator and its programming affili-
atesSSis wholly consistent with the statute.
Because the Commission neither considered nor resolved the
issues of whether local governments could also require unaffiliated
programmers to pay fees on their OVS revenues and whether locali-
ties could levy fees on OVS operators in addition to the fees-in-
lieu, the Cities' arguments on these points are premature. The
sections of the FCC orders dealing with compensationSSthe only
compensation rules under review hereSSmerely provide that fees
charged to an OVS operator under § 653(c)(2)(B) may not be based on
unaffiliated programmers' revenues. See Rulemaking Order ¶ 220;
18
Reconsideration Order ¶¶ 115-22. The Cities argue that “the
statutory provision does not prohibit the receipt of other
compensation from the OVS operator, or limit fees that may be
imposed upon persons who use the OVS system to provide service to
subscribers.” But the FCC did not state otherwise in the orders at
issue, and the Cities did not raise these arguments in the
rulemaking proceedings. Accordingly, we decline to address these
claims.8
C. The Commission's Failure To Authorize Local Governments
To Require OVS Operators To Provide Institutional Networks.
The Commission's rules require an OVS operator to provide
capacity on an institutional network9 only if the operator has
voluntarily elected to build such a network. See 47 C.F.R.
§ 76.1505(e) (1997). If the OVS operator has not elected to build
an institutional network, the rules do not give local governments
authority to require construction of such a network. Id. NATOA
contends that the agency acted contrary to the statute in failing
to authorize local governments to demand that OVS operators provide
institutional networks. This argument rests on a misreading of the
statute.
8
See Time Warner Entertainment Co., L.P. v. FCC, 56 F.3d 151, 201 (D.C.
Cir. 1995) (precluding party from raising issue on appeal because it “did not
raise the issue before the Commission in the first instance”).
9
An institutional network is “a communication network which is constructed
or operated by the cable operator and which is generally available only to
subscribers who are not residential subscribers.” 47 U.S.C. § 531(f).
19
NATOA's four-step statutory argument proceeds as follows:
(1) Section 653(c)(1)(B) states that § 611 shall apply to OVS
operators. 47 U.S.C. § 573(c)(1)(B). (2) Section 653(c)(2) then
provides that the obligations on OVS operators under § 611 shall be
“no greater or lesser” than they are for cable operators.
47 U.S.C. § 573(c)(2). (3) Section 611 permits localities to
require cable operators to provide institutional networks.
47 U.S.C. § 531(b). (4) Hence, § 611, which applies jot-for-jot to
OVS operators, must permit localities to require OVS operators to
provide institutional networks. The problem with this argument
lies in step three: Contrary to NATOA's assertion, § 611 does not
permit localities to require cable operators to build institutional
networks but instead, by its terms, merely states that “[a]
franchising authority may . . . require . . . that . . . channel
capacity on institutional networks be designated for educational or
governmental use . . . .” 47 U.S.C. § 531(b). In other words,
localities may require that cable operators devote space on their
existing institutional networks, if there are any such networks, to
educational or governmental use, but the statute does not authorize
local governments to require the construction of institutional
networks.
Section 621(b)(3)(D) also indicates that NATOA is in error in
reading § 611 as empowering localities to require such construc-
tion. That section states:
20
Except as otherwise permitted by sections 611 and 612 of
this title, a franchising authority may not require a
cable operator to provide any telecommunications service
or facilities, other than institutional networks, as a
condition of the initial grant of a franchise, a fran-
chise renewal, or a transfer of a franchise.
47 U.S.C. § 541(b)(3)(D) (emphasis added). If § 611 authorized
localities to require provision of institutional networks, the
words “other than institutional networks” would be surplusage.
Thus, the plain language of § 611(b), buttressed by the implicit
interpretation § 621(b)(3)(D) provides, supports the Commission's
conclusion that § 611(b) does not authorize local governments to
require the construction of institutional networks.10
D. Permitting Entities Other than LEC's To Become OVS Operators.
The first two sentences of § 653(a)(1) of the Act state:
A local exchange carrier may provide cable service
to its cable service subscribers in its telephone service
area through an open video system that complies with this
section. To the extent permitted by such regulations as
the Commission may prescribe consistent with the public
10
The FCC and Intervenors RCN and Bell Atlantic argue that § 621(b)-
(3)(D)SSnot § 611(b)SSis the source of local franchising authorities' power to
order cable operators to provide institutional networks. NATOA responds
convincingly by noting that the 1996 Act added § 621(b)(3)(D) and that the
obligation to provide institutional networks pre-dated the 1996 Act. Obviously,
then, the obligation could not stem from § 621(b)(3)(D).
This observation, however, does not disturb the conclusion that § 611(b)
does not authorize localities to order provision of institutional networks. That
conclusion follows from (1) the fact that the plain language of § 611(b) does not
give localities authority to order institutional networks, and (2) Congress's
implied assertion, in § 621(b)(3)(D), that § 611(b) does not grant such
authority. We do not have to decide that § 621(b)(3)(D) is the source of
localities' authority to order institutional networks to conclude that § 611(b)
is not the source of such authority. NATOA has cited no case or agency decision
interpreting § 611(b) to permit localities to order institutional networks, and
the plain language of § 611 does not provide such authority.
21
interest, convenience, and necessity, an operator of a
cable system or any other person may provide video
programming through an open video system that complies
with this section.
47 U.S.C. § 573(a)(1). The orders under review permit non-LEC
cable operators who face “effective competition” to provide cable
service as OVS operators.
NATOA argues that the FCC erred in allowing non-LEC's to
provide OVS service, for Congress expressly permitted only LEC's to
do so. NATOA points out that the first sentence of § 653(a)(1)
says LEC's may provide “cable service” through an OVS, and the
second sentence merely gives the FCC authority to permit cable
operators to provide “video programming.” See 47 U.S.C.
§ 573(a)(1). NATOA notes that not only do these terms have
different common meaningsSScable service refers to the physical
connections, while video programming means television showsSSbut
they are also defined differently in the statute.
Section 602(6) defines “cable service” as “(A) the one-way
transmission to subscribers of (i) video programming, or (ii) other
programming service, and (B) subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.” 47 U.S.C. § 522(6). Section 602(20)
states that “the term 'video programming' means programming
provided by, or generally considered comparable to programming
provided by, a television broadcast station.” 47 U.S.C. § 522(20).
NATOA insists that the fact that Congress used two different terms
22
that it had defined differently elsewhere in the statute means that
it intended the two sentences of § 653(a)(1) to authorize two
distinct services: LEC's may provide cable service; cable
operators may only provide television shows on others' OVS systems.
The fact that the first sentence of § 653(a)(1) expressly
authorizes LEC's to provide OVS service, however, does not bar the
FCC from permitting other entities to provide it, for the FCC has
ancillary authority under § 4(i) of the Communications Act to
permit non-LEC's to be certified as OVS operators. Section 4(i)
gives the Commission authority to “perform any and all such acts,
make such rules and regulations, and issue such orders, not
inconsistent with [the Act], as may be necessary in the execution
of its functions.” 47 U.S.C. § 154(i). Even before Congress
expressly authorized any federal regulation of cable television,
both the Supreme Court and this court had acknowledged the
Commission's ancillary authority to regulate cable service under
§ 4(I). See United States v. Southwestern Cable Co., 392 U.S. 157,
171-78 (1968); General Tel. Co. v. FCC,
449 F.2d 846, 853-54 (5th
Cir. 1971). If the FCC had ancillary authority to adopt an entire
regulatory regime for cable television, it surely has ancillary
authority to extend to non-LEC's the permission to operate OVS's.
NATOA contends that § 4(i) does not apply, because the FCC's
actions are inconsistent with the Act. NATOA fails, however, to
point out the inconsistency. Citing no statutory provision that
23
supports its view, it states that “Congress never intended to allow
non-LEC's to be OVS operators.”
The language in § 653(a)(1) is not inconsistent with the
agency's interpretation. Sentence one says LEC's may provide cable
service, and sentence two merely states that cable operators may
provide video programming according to rules the FCC prescribes.
Permitting cable operators also to provide cable service according
to rules the Commission prescribes is in no way inconsistent with
the language of either of these sentences. Hence, the Commission
did not exceed its authority in adopting regulations permitting
non-LEC's to be certified as OVS operators.
V. The Cable Companies' Claims.
In its orders, the Commission generally takes the position
that a cable operator may provide neither OVS service nor video
programming on an unaffiliated, in-region OVS unless the cable
operator faces “effective competition.”11 This effective-competi-
tion requirement applies to LEC's that are also cable operators,
see Rulemaking Order ¶ 25, as well as to cable operators whose
cable franchises have terminated, see Reconsideration Order ¶ 27.
The rules regarding carriage of video programming do, however,
allow OVS operators to ignore the general ban on in-region cable
11
See Rulemaking Order ¶¶ 23, 25, 26 (stating that cable operator may not
provide OVS service in its cable service area in absence of effective competi-
tion); Reconsideration Order ¶ 51 (stating that cable operator generally may not
obtain programming capacity on an unaffiliated in-region OVS).
24
operators' providing programming on unaffiliated OVS's. An OVS
operator has discretion to determine whether it will carry an in-
region cable operator's programming. See Reconsideration
Order ¶ 52.
The NCTA challenges these rules on several grounds. First, it
argues that the Commission exceeded its statutory authority in
prohibiting LEC's that are also cable operators from being eligible
to be OVS operators in the absence of effective competition. Next,
it avers that it is arbitrary and capricious for the FCC to impose
an effective competition requirement on cable operators that seek
to provide OVS service in their cable service areas. Third, it
contends that even if it is reasonable for the agency to impose the
effective-competition requirement on current cable operators, it is
arbitrary and capricious for it to impose the requirement on cable
operators whose cable franchises have terminated. Finally, NCTA
urges that the Commission's rules generally prohibiting cable
operators from providing video programming on in-region OVS's, but
giving the OVS operators the discretion to grant access to cable
operators, violate provisions of the Act prohibiting discrimination
by OVS operators.
A. The Effective-Competition Requirement for LEC's
That Are Also Cable Operators.
The Commission contends that its rule prohibiting cable
operators who are also LEC's from providing OVS service in the
25
absence of effective competition represents a reasonable interpre-
tation of ambiguous statutory language and thus deserves Chevron
deference. Because we believe the Commission has ignored plain
text and has attempted to manufacture an ambiguity in order to
obtain an increased level of judicial deference, we invalidate the
rule imposing an effective competition requirement on LEC's who are
also cable operators.
The Commission argues that the first two sentences of
§ 653(a)(1) leave an ambiguous “gap.” The first sentence states,
“A local exchange carrier may provide cable service to its cable
service subscribers in its telephone area through an open video
system that complies with this section.” 47 U.S.C. § 573(a)(1).
The meaning of that language is evident: LEC's in compliance with
§ 653 may provide OVS service.
The second sentence then provides, “To the extent permitted by
such regulations as the Commission may prescribe consistent with
the public interest, convenience, and necessity, an operator of a
cable system or any other person may provide video programming
through an open video system that complies with this section.” Id.
Again, the language appears untroubling: Cable operators and
others may provide video programming, which the FCC has defined to
include OVS service, to the extent the agency determines that their
doing so is in the public interest.
The Commission insists that ambiguity results from the
26
conjunction of these two sentences. Sentence one deals with LEC's,
sentence two with cable operators; the statute is silent as to
LEC's who are also cable operators. Hence, the statute is
ambiguous, the Commission asserts, and in the face of such
congressional silence or ambiguity, we should defer to the agency's
reasonable interpretation that “hybrid” LEC/cable operators should
be governed by sentence two and thus are subject to the FCC's
public interest standards.
We do not accept the Commission's claim that the statute is
ambiguous as to “hybrid” LEC/cable operators. The language of
sentence one is straightforward: “A local exchange carrier may
provide cable service to its cable service subscribers in its
telephone area through an open video system that complies with this
section.” 47 U.S.C. § 653(a)(1) (emphasis added). The FCC
recognized the unequivocal nature of this provision when it stated,
“[T]he first sentence of Section 653(a)(1) allows LECs, without
qualification, to operate open video systems within their telephone
service areas . . . .” Rulemaking Order ¶ 25.
The Commission's assertion that Congress was silent as to
“hybrid” LEC's and that the Commission thus may treat them not as
LEC's under sentence one, but as cable operators under sentence
two, is not convincing. The agency claims that Congress was silent
on how to treat hybrid LEC's because it just never thought about
such entities. The Commission explains, “In light of the cross-
27
ownership ban, it is hardly surprising that Congress failed
specifically to address the conditions under which the hybrid
company described by NCTA could operate an open video system,
because no such company existed.” But such companies did exist,
and Congress did know about them.
While a general telephone company-cable cross-ownership ban
existed prior to the Act, for years telephone companies have been
able to apply for permission to provide cable service in their
telephone service areas pursuant to waivers or the liberal rural
telephone company exemption provided in the statute. See 47 U.S.C.
§ 533(b)(3), repealed by § 302(b)(1) of the 1996 Act. In 1984,
Congress codified the Commission's previously existing cable-
telephone company cross-ownership ban but eliminated the require-
ment that rural LEC's apply for exemption from the ban. It did so
out of concern that the FCC had been interpreting the cross-
ownership ban in such a way as “unnecessarily [to] prevent[] some
rural telephone companies from offering cable television service in
rural areas.”12 Apparently, then, although Congress was well aware
that there are LEC's that are also cable operators,13 it nonetheless
12
H.R. Rep. No. 98-934, at 56-57 (1984) (“It is the intent of Section
613(b) to codify current FCC rules concerning the provision of video programming
over cable systems by common carriers, except to the extent of making the
exemption for rural telephone companies automatic.”).
13
Moreover, two of the primary goals of the Act were to facilitate cable
companies' becoming LEC's and to permit LEC's to become cable companies. See
Conference Report at 148 (noting that “meaningful facilities-based [local
telephone] competition is possible given that cable services are available to
(continued...)
28
stated “without qualification” that LEC's may provide OVS service.
Congress also knew how to distinguish among respective groups
of LEC's, and the fact that it did not single out cable operator-
LEC's for different treatment under sentence one of § 653(a)(1)
indicates that it intended all LEC's to be treated the same. When
Congress wanted to distinguish traditional, “incumbent” LEC's from
the new “competitive” LEC's (including cable companies) whose entry
the Act facilitated, it did so in plain terms.
For instance, Congress established different interconnection
obligations for incumbent LEC's versus all LEC's. Compare
47 U.S.C. § 251(b) (obligations of all LEC's) with § 251(c)
(additional obligations of incumbent LEC's). The absence of
distinction among LEC's in sentence one indicates that Congress
intended the provision to cover all LEC's.
Finally, we reject the agency's reading of § 653(a)(1),
because it nullifies the first sentence of the provision. The
second sentence permits the Commission to apply its public interest
criteriaSSthe statutory basis for its effective-competition
requirementSSto “any other person” as well as to cable operators.
See 47 U.S.C. § 573(a)(1). If sentence one is subject to sentence
two, as the Commission's reading suggests, then every LEC is
13
(...continued)
more than 95 percent of United States homes” and that “[s]ome of the initial
forays of cable companies into the field of local telephony therefore hold the
promise of providing the sort of local residential competition that has
consistently been contemplated”); 47 U.S.C. § 571(a)(3) (§ 651(a)(3) of the Act)
(permitting LEC's to provide cable service).
29
covered by the second sentence and may provide video programming
only at the Commission's discretion.
Under this reading, however, the first sentence is a nullity,
because the FCC may always decide, on the basis of the public
interest, convenience, and necessity, which persons may provide
video programming. The only way to avoid nullifying the first
sentence is to recognize that the sentence carves out a
groupSSLEC'sSSwhose right to provide video programming is not
subject to the agency's public interest standard.
B. The Effective Competition Requirement for Cable Operators
Who Seek To Provide OVS Service.
NCTA challenges the rule that cable operators may not operate
OVS's in their cable service areas unless they face effective
competition, but it does not claim that the plain language of § 653
forecloses the effective-competition requirement. Instead, NCTA
argues that the Commission has exercised its authority in an
arbitrary and capricious manner in adopting the effective-competi-
tion requirement under § 653(a)(1)'s public interest standard.14
In particular, NCTA argues that the effective-competition require-
ment is unnecessary because OVS creates its own competition.15
14
See 5 U.S.C. § 706(2) (requiring reviewing courts to “hold unlawful and
set aside agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of agency discretion, or otherwise not in accordance with
law”).
15
OVS's create their own competition because each OVS operator must
(continued...)
30
Because of the deference accorded agency judgments regarding the
public interest, and because the agency considered appropriate
arguments and reasonably adopted its conclusion, we affirm the
general effective competition requirement.
Judicial deference to agency judgments is near its zenith
where issues of the public interest are involved. In FCC v. WNCN
Listeners Guild, 450 U.S. 582, 596 (1980), the Court explained that
its opinions had “repeatedly emphasized that the Commission's
judgment regarding how the public interest is best served is
entitled to substantial judicial deference.” Accordingly, the
Court held that
[t]he Commission's implementation of the public-interest
standard, when based on a rational weighing of competing
policies, is not to be set aside by the Court of Appeals,
for the weighing of policies under the public interest
standard is a task that Congress has delegated to the
Commission in the first instance.
Id.16 Given these precedents, we affirm the Commission's policy
choice if it considered competing arguments and articulated a
reasonable basis for its conclusion. It did both.
NCTA presented to the FCC its argument that an effective-
competition requirement is unnecessary because an OVS creates its
15
(...continued)
surrender two-thirds of the system's carrying capacity to unaffiliated
programmers, as long as there is demand for carriage. 47 U.S.C. § 573(b)(1)(B).
16
See also American Transfer & Storage Co. v. Interstate Commerce Comm'n,
719 F.2d 1283, 1300 (5th Cir. 1983) (deferring to ICC's view of how to promote
public interest); Missouri-Kansas-Texas R.R. v. United States,
632 F.2d 392,
399-400 (5th Cir. 1980).
31
own competition, see Reconsideration Order ¶ 21, but the Commission
reasonably rejected that argument. The agency concluded, “There is
no assurance that any particular system will generate sufficient
competition between providers of 'comparable' video programming
services to qualify as a meaningful stand-in for effective
facilities-based competition.” Id. at ¶ 26. This, we believe,
represents a fair weighing of policies and a reasonably-based
conclusion.
The Commission did provide a plausible basis for its
effective-competition requirement. In essence, it determined, on
the basis of the text and legislative history of the Act, that
Congress wanted to exempt OVS operators from much title VI
regulation because they would be competing with incumbent cable
subscribers. If an entity is not facing competition, it should not
get the regulatory “break” the OVS provisions provide, especially
as its greater market power likely merits increased regulation.
Hence, the effective-competition requirement works to ensure that
the regulatory relief in § 653 is properly targeted at new
entrants. See Reconsideration Order ¶ 25.17
17
That part of the order states:
We believe that Congress exempted open video system operators from
much of Title VI regulation because, in the vast majority of cases,
they will be competing with incumbent cable operators for subscrib-
ers. Our effective competition restriction implements Congress'
intent by ensuring that, where it is the incumbent cable operator
itself that seeks to enter the marketplace as an open video system
operator, there is at least one other multichannel video programming
provider competing in the market (or, if the cable operator enters
(continued...)
32
Given this reasonable argument and the substantial deference
courts should afford agencies implementing public interest
standards, see WNCN Listeners Guild, 450 U.S. at 596, we uphold the
effective competition rule.18 While we might have weighed the
competing policies differently, we cannot say that the balance the
Commission struck is irrational.
C. Extending the Effective Competition Requirement to
Cable Operators Whose Cable Franchises Have Terminated.
NCTA advances two arguments in support of its claim that the
Commission acted arbitrarily and capriciously in adopting a rule
precluding cable operators who do not face effective competition
17
(...continued)
under the “low penetration” test for effective competition, that it
does not possess a level of market power that Congress believed
requires regulation).
Reconsideration Order ¶ 25.
18
NCTA makes two other arguments that are worth addressing. It asserts
that if Congress had been as focused on fostering competition as the Commission
suggests, it would have forbidden OVS operators to start up service in areas
where they would be the sole video programming providers. There are two
responses to this argument. First, because 96% of homes have cable access, it
was reasonable for Congress not to spend time legislating over the few instances
in which an OVS operator who starts up will not face competition. See
Reconsideration Order ¶ 26. Second, while competition is ideal and should be
pursued to the extent possible, it is certainly in the public interest for OVS
operators to enter markets where there is no video programming. While they would
have a monopoly, at least some form of cable service would be available at some
price.
NCTA also argues that the fact that the FCC exempts cable operators from
the effective competition rule when entry by a competitor is infeasible, see
Rulemaking Order ¶ 24, indicates that the effective-competition rule is
irrational. Again, the fact that the Commission permits OVS service to exist by
itself in a few areas where competition simply could not occur does not mean that
it is irrational (or “arbitrary and capricious”) to require effective competition
when such competition is feasible.
33
from providing OVS service even after their cable franchises have
terminated. Although couched as a claim that the Commission made
an arbitrary and capricious policy choice, the first argument NCTA
makes is really a statutory claim. It contends that, as a matter
of law, once a cable operator's franchise has been terminated, it
is no longer a “cable operator” under the Act and therefore should
be subject to the same OVS requirements as “any other person.”19
In other words, the rule requiring effective competition for cable
operators does not apply to ex-cable operators.
While NCTA may be correct from a purely formalistic perspec-
tive, we do not find this argument convincing. Under the second
sentence of § 653(a)(1), the FCC could always regulate video
programming by former cable operators by using its power to set the
terms under which “any other person” may provide such programming.
For example, it could adopt a rule stating, “Any other person who
seeks to provide OVS service must face effective competition if he
used to be a franchised cable operator.” Such a rule would be
identical in substance to the rule the agency has adopted, and we
decline to require such extreme formalism.
NCTA's second argument does attack the soundness of the FCC's
policy choice. NCTA contends that a cable operator loses its
market power when it gives up its franchise, and it therefore
19
See 47 U.S.C. § 573(a)(1) (stating that “an operator of a cable system
or any other person may provide video programming” according to the rules the
Commission promulgates in the public interest).
34
should not be subject to the effective-competition requirement.
Because a cable operator may not provide cable service without a
franchise, see 47 U.S.C. § 541(b)(1), a disenfranchised cable
operator is impotent; it cannot provide any video programming, much
less dominate the local market. Moreover, even if the company is
certified as an OVS operator, it loses much of its market power
because it must surrender up to two-thirds of its programming
capacity. See 47 U.S.C. § 573(b)(1)(B). Hence, NCTA argues, the
Commission's decision to impose the effective-competition require-
ment on cable operators who have lost their franchises is arbitrary
and capricious.
The Commission offers a plausible response. It contends that
a cable company does not lose its market power upon losing its
franchise, for “[a] cable operator's market power arises from,
among other things, the ownership of its transmission network, its
customer base, and its carriage agreements with various program-
mers[,] . . . factors [that] would survive the termination of an
operator's cable franchise and would put any would-be competitor at
a substantial disadvantage.” Moreover, the Commission argues, if
a cable company could avoid the effective-competition rule by
giving up its franchise, it could just let the franchise expire,
then offer OVS service over its existing network. By so doing, it
35
could maintain its monopoly position20 and get the regulatory relief
available to OVS operators, who are expected to be new entrants.
Given this rational basis for the FCC's policy determination and
the deference owed its public interest decisions, we affirm the
rule precluding cable operators who do not face effective competi-
tion from providing OVS service even after their cable franchises
terminate.
D. Prohibiting In-region Cable Operators from Obtaining
Capacity on an OVS, While Permitting OVS Operators
To Waive This General Prohibition.
Claiming authority under sentence two of § 653(a)(1),
47 U.S.C. § 573(a)(1), the FCC generally banned cable operators
from providing video programming on unaffiliated OVS systems within
their cable service areas.21 The Commission also ruled, however,
that “a competing, in-region cable operator may access an open
video system when the open video system operator determines that it
is in its interests to grant access.”22 In other words, an OVS
operator has discretion to determine whether it will carry a cable
20
Of course, if the cable company gave up its cable franchise, the locality
likely would accept bids for a new cable operator. But whatever entity began cable
operations would have to construct or acquire a networkSSa costly and time-consuming
venture. The former cable operator probably would maintain a monopoly position and
get the benefits of regulatory relief, for some time.
21
See Reconsideration Order ¶ 51 (providing that “pursuant to the second
sentence of Section 653(a)(1), the public interest, convenience and necessity is
served by generally prohibiting a competing, in-region cable operator from
obtaining capacity on an open video system”).
22
Id. ¶ 52.
36
operator's video programming. Because this regulation is contrary
to the plain language of § 653(b)(1)(A), which requires the
Commission to “prohibit an operator of an open video system from
discriminating among video programming providers with regard to
carriage on its open video system,” 47 U.S.C. § 573(b)(1)(A), we
invalidate these rules and remand for further consideration. On
remand, the agency must forbid discrimination among video program-
ming providers, as § 653(b)(1)(A) requires.
The agency contends that its two rules (the “general prohibi-
tion” and the “discretion to waive the general prohibition”) are
authorized by the second sentence of § 653(a)(1), which provides
that a cable operator “may provide video programming through an
open video system” only “[t]o the extent permitted by such
regulations as the Commission may prescribe consistent with the
public interest, convenience, and necessity.” 47 U.S.C. § 573-
(a)(1). The general prohibition is authorized because the
Commission has determined that the public interest would best be
served by generally banning carriage of a cable operator's
programming on an OVS. This is so because “a competing, in-region
cable operator should be encouraged to develop and upgrade its own
system, rather than to occupy capacity on a competitor's system
that could be used by another video programming provider.”
Rulemaking Order ¶ 52.
This rule, the Commission argues, does not conflict with
37
§ 653(b)(1)(A)SSthe provision requiring it to enact regulations to
prohibit discrimination by OVS operators against and among video
programmersSSbecause “[b]y definition, an OVS operator does not
discriminate by denying carriage to one who, pursuant to the
Commission's rules, is not eligible 'to provide video programming
through an open video system.'” In other words, the Commission has
adopted a blanket rule that in-region cable operators are not
eligible to provide programming, and denying carriage of ineligible
cable operators' programming therefore is not discrimination
against a video programming provider.
This “eligibility” argument does not work as long as OVS
operators are permitted to ignore the ban and carry cable opera-
tors' video programming. If OVS operators may disregard the
general prohibition, then the FCC has not really declared cable
operators ineligible.
If the Commission is declaring cable operators ineligible to
the extent OVS operators want them to be ineligible, then it is
permitting discrimination by OVS operators among video programming
providers. Section 653(b)(1)(A) requires the agency not to do
that. Alternatively, the Commission is impermissibly delegating to
the OVS operators its authority to determine “the extent” to which
cable operator carriage promotes the public interest.23
23
See Carter v. Carter Coal Co., 298 U.S. 238, 310-11 (1936); Sierra Club
v. Sigler,
695 F.2d 957, 963 n. 3 (5th Cir. 1983) (holding that “an agency may
not delegate its public duties to private entities”); National Ass'n of
(continued...)
38
The FCC argues that there is no impermissible delegation here,
as there was in the cases cited, because those cases involved
delegation where a private party had been given regulatory power
that could be exercised to the detriment of other regulated
entities or for the improper benefit of the entity receiving the
delegation. Here, by contrast, the OVS operator is merely given
power to invoke an exception and thereby benefit, at its discre-
tion, another regulated entity. The rule has the same effect as
would a private party's decision not to seek enforcement of some
administrative restriction against a regulated entity.
This argument elevates form over substance. Regardless of
whether the rule is that OVS operators may choose to disregard a
default rule granting cable operators carriage rights, or is that
they may elect to disregard one denying such rights, the fact
remains that they are being permitted to choose whether they want
to give cable operators access rights. This is a delegation of
regulatory authority to impose a cost on another regulated entity
and, hence, violates general principles of administrative law as
well as the particular anti-discrimination provisions of § 653(b).
The FCC's formalistic wrangling amounts to a distinction without a
difference, and the genesis of the rule reveals as much: Not until
the cable operators complained about illegal discrimination did the
23
(...continued)
Regulatory Utility Comm'rs v. FCC, 737 F.2d 1095, 1143-44 (D.C. Cir. 1984).
39
Commission switch from a rule allowing OVS operators to ban in-
region cable operators' video programming to one permitting OVS
operators to exempt such programming from a general ban. Compare
Rulemaking Order ¶ 54 with Reconsideration Order ¶ 52. Thus, we
invalidate the rule permitting OVS operators selectively to lift
the general ban on cable operators providing video programming on
OVS systems.
VI. BellSouth's Claim.
The FCC adopted a new construction notification rule requiring
a carrier to obtain FCC approval of its certification before
constructing new physical plants needed to operate OVS systems.
See Rulemaking Order ¶ 34. A carrier may not request certifica-
tion, however, until it can make detailed verifications concerning
the proposed OVS, including details about ownership, the communi-
ties to be served, the analog and digital capacities of the system,
and the number of channel ports.24 BellSouth claims this rule is
contrary to the statutory language and is arbitrary and capricious.
We agree that the rule violates the statute but do not reach
BellSouth's claim that the policy choices are arbitrary and
capricious.
Two convincing statutory arguments support the view that the
24
See Rulemaking Order Appendix C, Instructions for FCC Form 1275 Open
Video System Certification of Compliance.
40
Commission erred in adopting the new construction rule. The first
relies on the mandatory language of § 653(a)(1), the third sentence
of which states, “An operator of an open video system shall qualify
for reduced regulatory burdens under subsection (c) of this section
if the operator of such system certifies to the Commission that
such carrier complies with the Commission's regulations under
subsection (b) of this section and the Commission approves such
certification.” 47 U.S.C. § 573(a)(1) (emphasis added). Any new
construction rule the Commission promulgates is not a “regulation[]
under subsection (b),” so, consistently with the statute, failure
to follow the rule could not prevent an operator from qualifying
for reduced regulatory burdens under subsection (c).
The second argument rests on two provisions in the statute in
which Congress expressly exempted common carriers who operate OVS's
from the pre-construction notice requirement normally applicable to
common carriers. First, § 651(c) states that “[a] common carrier
shall not be required to obtain a certificate under section 214 of
this title with respect to the establishment or operation of a
system for the delivery of video programming.” 47 U.S.C. § 571(c).
It thus exempts common carriers providing video service from the
§ 214 rule that
[n]o carrier shall undertake the construction of a new
line or of an extension of any line . . . unless and
until there shall first have been obtained from the
Commission a certificate that the present or future
public convenience and necessity require or will require
the construction . . . of such additional or extended
41
line . . . .
47 U.S.C. § 214(a).
Second, § 653(c)(3) states that “with respect to the estab-
lishment and operation of open video systems, the requirements of
[§ 653] shall apply in lieu of, and not in addition to, the
requirements of title II.” 47 U.S.C. § 573. Title II includes the
§ 214 pre-construction notice requirement. These two provi-
sionsSS§ 651(c) and § 653(c)(3)SSthus affirmatively prohibit the
Commission from adopting a pre-construction notice requirement for
OVS operators.
The FCC maintains that the certification it requires for OVS
operators is not nearly as complex or detailed as that required by
§ 214, so the pre-construction notice is not “precisely the same
requirement” as that imposed on common carriers under § 214. The
Commission then argues that, while the criticisms set forth above
assume that the agency may not adopt a regulation not specifically
prescribed in the Act, expressio unius “'has little force in the
administrative setting,' where [courts] defer to an agency's
interpretation of a statute unless Congress has 'directly spoken to
the precise question at issue.'” Mobile Communications Corp.,
77 F.3d at 1405 (quoting Texas Rural Legal
Aid, 940 F.2d at 694).
Both of the Commission's arguments are inadequate. The
expressio unius argument fails because the reasoning does not rely
on the expressio unius canon. The Act plainly says a cable
42
provider “shall qualify” for regulatory relief as an OVS operator
if it complies with the FCC's “regulations under subsection (b).”
47 U.S.C. § 573(a)(1). The regulations required by subsection (b)
are narrowly tailored and relate to carriage obligations. The new
construction notification requirement is not a subsection (b)
regulation, and, consistently with the mandatory terms of the
statute, failure to comply with the requirement may not preclude a
cable service provider from qualifying for regulatory relief under
subsection (c).
Nor do we accept the agency's argument that its new construc-
tion rule is less onerous than is the § 214 requirement and
therefore should not be barred by the provisions exempting, from
§ 214, common carriers who provide video service from § 214. The
plain language of § 214 says “[n]o carrier shall undertake
construction . . . unless and until there shall have been obtained
from the Commission a certificate that the present or future public
convenience and necessity require or will require the construction
. . . .” 47 U.S.C. § 214. Sections 651(c) and 653(c)(3) state
that this rule shall not apply to common carriers providing an OVS.
The Commission should not be able to deny the regulatory relief
these sections provide merely by pointing out that there are some
differences between its new pre-construction certification rule and
the old one it is expressly forbidden to impose.
Moreover, the legislative history supports the view that
43
Congress meant to preclude all pre-construction notification rules
for OVS operators. The Conference Report states that Congress was
prohibiting the Commission from “impos[ing] title II-like regula-
tion” on OVS operators, see Conference Report at 178, and explains
that “common carries [sic] are not required to obtain certificates
under section 214 in order to construct facilities to provide video
programming services,” see id. at 175 (summarizing Senate
version). Even if it is less burdensome than the certification
required under § 214, the new construction rule is a title II-like
regulation that directly contravenes the text and legislative
history of §§ 651 and 653. Accordingly, we invalidate the rule.25
Finally, we note that the Commission's rationale for requiring
pre-construction certification likely disappears in the wake of
this opinion. The Commission ordered pre-construction certifica-
tion because of the need to let local authorities know which
entities had been granted enforceable rights to use local rights-
of-way. See Rulemaking Order ¶ 34. While the need to provide such
information may have been a genuine concern if the OVS provisions
had preempted local franchising authority, we say in this opinion
that localities retain franchising authority over OVS operators.
Hence, the rationale for the pre-construction certification rule no
25
See Presley v. Etowah County Comm'n, 502 U.S. 491, 508-09 (1992) (agency
entitled to Chevron deference “only if Congress has not expressed its intent with
respect to the question, and then only if the administrative interpretation is
reasonable”).
44
longer exists.26
VII. Conclusion.
The petitions for review are GRANTED, so we may interpret the
subject rules in such a way as to be consistent with the text of
the Act and the principles of agency deference articulated in
Chevron, resulting in a regulatory regime for OVS's that preserves
local authority and permits widespread entry into this video
programming medium. In summary, on the issues raised by the
Cities, we reverse, on statutory grounds, the Commission's
preemption of local franchising authority. We affirm the rules
permitting non-LEC's to become OVS operators, the Commission's
formula for determining the “fee in lieu of” a franchise fee, and
its refusal to authorize local governments to demand provision of
institutional networks. As for the claims raised by NCTA on behalf
of cable operators, we hold that the Commission exceeded its
statutory authority in imposing an effective-competition require-
ment on LEC's that also are cable operators. We affirm, however,
the rules prohibiting non-LEC cable operators, even those whose
franchises have expired, from providing OVS service in the absence
of effective competition. We invalidate and remand the rules
generally prohibiting in-region cable operators from providing
26
During oral argument, counsel for the FCC admitted that the rationale
for the pre-construction certification rule would disappear were we to hold that
localities retain franchising authority over OVS operators.
45
video programming, but giving OVS operators discretion to lift this
ban. Finally, we invalidate the pre-construction certification
requirement, which violates the text of § 653 and is no longer
justified, given our conclusion that localities retain franchising
authority over OVS operators.
This matter is REMANDED for further proceedings consistent
with this opinion.
46
