Leigh Ann Vorhees
April 20, 2010
Case Brief: U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968)
The name of this case is United States versus Southwestern Cable Company. It
was decided in 1968 in the United States Supreme Court. It is located in volume 392 of
the United States Reports, page 157. The two main parties involved in the case are the
Federal Communications Commission (the FCC), hereby referred to as the agency, and
Southwestern Cable Company, and hereby referred to as the applicant.
The FCC has authority over all communication by wire or radio, meaning that it
usually has no jurisdiction over television. CATV (Community Antenna Television),
which is cable television that began in the 1950‟s and served mostly rural areas at first,
does not transmit an over-the-air signal, meaning that they are not considered to be a part
of the radio spectrum, which is under FCC jurisdiction. When CATV began to take root
in the countryside of America, television markets in the big cities took no notice because
reception in the big cities was much more advanced than that of CATV. However, in the
early 1960s, people were beginning to see limits on their television in the big cities,
mainly because they were being forbidden to put up TV antennas (which are how people
in the big cities received television) at places like apartment complexes and
condominiums. These people were then offered CATV for a price. Because so many
people were beginning to use CATV, many more on-the-air programs were offered, and
CATV reception began to take off.
Although most channels through CATV are received through a wire (hence the
name „cable‟), CATV also receives some programming through satellites that is
controlled by the FCC. According to the textbook Major Principles of Media Law 2010,
“For instance, the number of channels that may be offered via cable is limited mainly by
the number of channels a television receiver or cable converter can cover. A local cable
system can put programming on every one of those channels without interfering with
other cable systems or over-the-air broadcasters,” (Overbeck 481). Cable systems began
providing numerous channels for their subscribers, and they began to range out of the
town where the station originated, meaning they brought in out-of-town “superstations.”
This is when television broadcasters and producers began to worry about the explosive
growth of CATV.
Cable operators were beginning to take programming off the air at no charge and
then deliver them to their subscriber at a cost. Copyright holders of these programs
believed that they deserved part of the profit for their programs being aired, and in two
separate decisions in 1976, the Supreme Court gave them help for this situation. Before
the explosive growth of CATV, the FCC did state their opinions on CATV. The FCC
states that it did find CATV “related to interstate transmission,” which FCC has
jurisdiction over, the FCC did not believe it would try to regulate CATV. The FCC did
propose legislation that would impose certain requirements on CATV systems, but the
legislation never went through. After this, CATV grew extensively, and began to bring in
signals to metropolitan centers. Broadcasters believed that if CATV imported signals
from metropolitan areas into small communities, like where CATV originated, then local
programming would lose money.
By 1966, the FCC has gradually begun to assert jurisdiction over CATV systems.
Most notably, the FCC put a limit on the transmission of distant signals. The FCC banned
CATV from transmitting signals into the 100 largest television markets; however, if
services existed on or before February 15, 1966, the services could stay as they were.
Thus, cable systems were required to carry out the nearest local programming instead of
more distant ones. Along with many other technical rules, the FCC also created
guidelines for the relationship between the government and CATV. The government had
been granting franchises, which were basically government-approved and run
monopolies, to operators of CATV. The FCC justified their ability to put sanctions over
CATV by arguing that “cable affected on-the-air broadcasters, and that regulation was
necessary to carry out the commission‟s regulatory responsibilities to broadcasters.
Legally, this was called „ancillary jurisdiction,‟” (Overbeck 482).
Many CATV operators, most notably Southwestern Cable Company, challenged
the FCC‟s authority to regulate CATV. The Supreme Court decided that the FCC did
have authority to regulate CATV “not only in the concept of ancillary jurisdiction but
also in a provision of the Communications Act that places wire and telecommunications
in general under FCC control,” (Overbeck 482). In the end, the FCC was given authority
to regulate CATV. Although the FCC then began to put more and more restrictions on the
growth of CATV, cable television began to develop as time went on.
This case began when the FCC began putting restrictions on the growth of CATV.
Beginning in 1960, the FCC began asserting rules over CATV that included who was
allowed to carry CATV signals, what markets they could broadcast into, and much more.
After hearings proceeded through the FCC, in 1965, the agency banned CATV
transmission into the 100 largest markets (for example, prohibiting Los Angeles stations
to interfere with and broadcast into San Diego stations), and creating proceedings for
stations to apply for special relief. Midwest Television, a petitioner in the case, applied
for special relief, and stated that Southwestern Cable Co., a Los Angeles Station, was
transmitting signals into Midwest‟s area, which is in San Diego. Southwestern Cable Co.
was, according to Midwest Television, affecting Midwest‟s station negatively. The FCC
then restricted Southwestern Cable Co. from expanding into areas other than ones they
had already operated on February 15, 1966, pending hearings. Southwestern Cable Co.
then took the FCC to the Court of Appeals, and the 9th
Circuit “held that the FCC lacked
authority under the Communications Act of 1934 to issue such an order,” (U.S. v.
Southwestern Cable Co.).
After the Court of Appeals ruled against the FCC and Midwest Television, the
Supreme Court then took the case in 1968. The Supreme Court then reversed the decision
of the Court of Appeals, and held that the FCC does have the authority to regulate CATV
systems. The court stated that the FCC‟s authority under the Communications Act of
1934 allowed the FCC to regulate CATV. The Court held that the FCC has author, under
the Communications Act, over “all interstate communication by wire or radio,” which
permits them to regulate CATV, and that the order in question did not abuse the FCC‟s
authority under the Communications Act.
In dispute is whether or not the FCC has the authority to not only regulate CATV
systems, but also if they have the authority to issue the prohibitory order in the case,
meaning if they can prohibit the applicant from not expanding to other markets. First, the
Supreme Court asserted that the FCC “has broad authority over all interstate and foreign
communication by wire or radio, which includes CATV systems as they are encompassed
within the term communication by wire or radio,” (U.S. v. Southwestern Cable Co.)
meaning that they are obviously involved in interstate communication. This is one of the
defining roles of the FCC (broad authority over all interstate communication by wire or
radio), and therefore, because CATV is also included in interstate communication, the
FCC can then assert jurisdiction over CATV.
The FCC also asserted their need to regulate CATV because they believed that
CATV was beginning to expand at an alarming rate, and if no one took charge in
regulating it, CATV expansion could get out of control and adversely affect other aspects
of media. Because the FCC was only trying to control the growth of CATV for the
purposes of not just the agency, but also for users of CATV, the Supreme Court had no
need to prohibit the FCC from regulating CATV. If the FCC does not regulate CATV,
then who should? The authority falls under their umbrella more than it does any other
In this case, the FCC is appealing that the 9th
Circuit‟s decision was wrong. The
Circuit claimed that the FCC had no authority to try to regulate CATV, or to prohibit
it from expanding into other markets. The FCC and special petitioner Midwest Television
believed that the 9th
Circuit was wrong, so they appealed it to the Supreme Court, who
held in favor of the FCC and Midwest Television.
In the end, the Supreme Court reversed the ruling of the 9th
Circuit Court of
Appeals. The Court recognized that general rules may be insufficient when it comes to
the rapid change of media, and that offering special relief is necessary. This case is a
perfect example of the special relief necessity situation: expansion of CATV is, according
to this case and according to Midwest Television, adversely affecting local stations, in
this case, Midwest Television‟s San Diego station. By limiting expansion of Los Angeles
stations, in this case, the stations of Southwestern Cable Co., Midwest Television can
continue to serve their local audience of the town of San Diego without interference from
a bigger market. This way, the people of San Diego can continue to have local
programming, and Midwest Television can continue to thrive without competition from a
larger market. This, according to the Court, is in the public interest. Relief limiting
expansion is necessary for local stations to continue.
The Court also ordered that the FCC go back and continue their own private FCC
hearings that have been pending throughout the trial. Here, they will determine the
appropriate course of action in how to handle prohibiting expansion of stations. Because
the FCC‟s functions include regulating aspects of radio transmission, the Court decided
that in this case, the FCC‟s regulations were necessary in order to control the expansion
of CATV in what would be the best way for the public. In conclusion, the Supreme Court
reversed the ruling of the 9th
Circuit Supreme Court, and that their regulations on the
expansion of CATV lies within their boundaries as laid out under the Communications
Act, and that their authority is just and in no way constitutionally infirm.
The Supreme Court’s answer to the issue is simple. The Supreme Court gave the
FCC the authority to put regulations on the expansion of CATV because this authority is
seen under the Communications Act of 1934. The FCC is explicitly given authority over
matters such as this because the expansion and regulation of CATV is included under all
interstate and foreign communication by wire or radio. The FCC, in the Communications
Act, is also “required to endeavor to make available to all the people of the United States
a rapid, efficient, nation-wide, and world-wide wire and radio communication service,”
(U.S. v. Southwestern Cable Co.) meaning that the FCC is required to do what is in the
public’s best interest, which in this case is controlling the expansion of CATV in order
for it to best service the public.
The FCC was given broad authority under the Communications Act to regulate
“power over all forms of electrical communication, whether by telephone, telegraph,
cable, or radio,” and they were expected to be the single government agency in charge of
this. Because of these statements in the Communications Act, the FCC was granted the
authority to regulate CATV.
The main rule of law applied to this case to determine the substantive rights of the
parties is based on the Communications Act of 1934. In the Communications Act of
1934, Congress states explicitly that the FCC has expansive authority over “all interstate
communication by wire or radio,” and because CATV is interstate communication by
wire or radio, the FCC‟s authority to regulate them is seen through this statement. The
FCC is supposed to provide cable and television broadcasting and regulate these areas in
a way that is most in the public interest, and because of this, the FCC has the authority to
regulate CATV, according to not only the Supreme Court, but also the Communications
Act of 1934.
There are numerous cases that cite U.S. v. Southwestern Cable Co., indicating that
the case has much precedential value. Many cases followed and accepted the ruling,
while others rejected it. For example, the case City of Chicago v. FCC, 199 F.3d 424 both
follows and cites U.S. v. Southwestern Cable Co. The case of City of Chicago v. FCC
deals with the FCC and an intervening respondent, both who believed that the intervening
respondent did not require a franchise from the local government because they weren‟t
technically a cable operator of a cable system. Technically, the intervening respondent
“received signals from an antenna, and transmitted the signals to customers in several
building complexes over fiber optic lines and coaxial cables owned by another
company,” (City of Chicago v. FCC). The FCC believed that because the intervening
respondent didn‟t use their facilities in accordance with the public right-a-way, they did
not require a government franchise. City and associations appealed the decision. The 7th
Circuit Court of Appeals agreed with the FCC and the intervening respondent that the
respondent didn‟t need a franchise because they didn‟t use the public right-of-way in the
operation of their cable system.
In the City of Chicago v. FCC case, Judge Evans gives the majority opinion, and
in it cites U.S. v. Southwestern Cable Co. He writes: “Some parties contend that the FCC
was not granted regulatory authority over 47 U.S.C. § 541, the statute setting out general
franchise requirements. We disagree. The FCC's regulatory authority was first set out in
United States v. Southwestern Cable Co., 392 U.S. 157… and its authority continues to
be recognized,” (City of Chicago v. FCC). Here, Judge Evans is using United States v.
Southwestern Cable Co. to state that the FCC‟s granted jurisdiction over CATV is still in
effect in 1999, over 30 years since the case was decided. This is an example of how the
case is still precedent.
As already explained, the Supreme Court decided that the FCC had the authority
to regulate CATV based on passages from the Communications Act of 1934. Because the
FCC already had broad authority over interstate and foreign communication by wire and
cable, it was only right that the FCC have authority over CATV because they are
encompassed in this group.
The decision was socially desirable because the court, and the FCC, believed that
the regulations of CATV by the FCC were in the public‟s best interest. If stations, like
Southwestern Cable Co. in Los Angeles, are able to expand anywhere, especially into
smaller cities like San Diego, not only will the public lose out on public broadcasting
from stations like Midwest Television, but their reception will be adversely affected. By
keeping bigger stations out of the territory of smaller stations, local programming is kept
intact, along with the good reception that is provided by CATV.
Justice White concurred with the decision and wrote his own opinion along with
it. Although Justice White agreed with the conclusion of the case, he agreed for reasons
different than that of the majority of the court. Justice White approaches other provisions
of the Communications Act that he believes gives the FCC jurisdiction over CATV. He
cites Section 301 and 303 of the Communications Act which read, separately, that the
FCC has broad authority over broadcasting, and that they have authority to regulate if it is
necessary to prevent interference between stations who are adversely affecting one
another. He says that if a Los Angeles station is interfering with a San Diego station in a
negative way, that these previously stated provisions allow the FCC to assert jurisdiction
over the expansion of CATV into other areas that adversely affect one other. In
conclusion, Justice White agreed with the final ruling of the case; however, he
approached it from a different perspective.
In my opinion, I believe that the Supreme Court got the case right and that the
Court of Appeals was indeed wrong. In reading the case, you realize that the
Communications Act of 1934 does indeed give the FCC almost complete control over
regulating communication of wire and radio over states, and why shouldn‟t that include
CATV? At the time, cable television was just coming to power. They were right in
expecting it to continue to grow, which it did. At the time, it was just starting to come
into households in major cities, and also into ones in much smaller cities. It has grown
immensely since then; today, 42 years later, cable television is in almost every household
in the United States, and has only continued to improve. If the FCC wouldn‟t have
stepped in and controlled the expansion of CATV, it most likely would not be the same
that it is today.
U.S. v. Southwestern Cable Co., compared to other cases dealing with similar
situations, is much the same in conclusion. This case and other similar ones all believe
that it is necessary for the FCC to have jurisdiction over CATV, not only because it is
expressly implied in the Communications Act of 1934, but also because it is in the
public‟s best interest. Firstly, if the FCC would not have controlled the expansion of
CATV in the 1960s, it is extremely likely that reception at that time would have been
much worse than it turned out to be with the FCC‟s new regulations. More importantly,
smaller stations would never have survived if larger stations were able to take over any
area that they wanted. If Southwestern Cable Co., of Los Angeles, was allowed to take
over the San Diego station of Midwest Television, than not only would Midwest
Television have no longer existed, but everyone in San Diego would only receive Los
Angeles news, and no longer news of their own community. It is mainly for this reason
that I agree with the Court‟s ruling. It is important to keep communities together,
especially through the media and the news. The case is still definitely “good law.” It is
cited in numerous cases, and many named it one of the three most important cases of the
time period relating to cable television. In conclusion, the court made the right decision. I
believe that the decision helped not only the petitioner‟s city of San Diego, but it also
helped all cities of CATV in the long run. Communities will all benefit from this.
U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968).
City of Chicago v. FCC, 199 F.3d 424 (1999).
Overbeck, Wayne, and Genelle Irene. Belmas. Major Principles of Media Law. Boston,
MA: Wadsworth Cengage Learning, 2010. Print.