Broadcast signals are being used as a basic component in the establishment of cable systems, and it is therefore appropriate that the fundamental goals of a national communications structure be furthered by cable * * *.46
That these cases establish an outer boundary to the Commission's authority we have no doubt . . . and if judicial review is to be effective in keeping the Commission within that boundary, we think the Commission must either demonstrate specific support for its actions in the language of the Communications Act or at least be able to ground them in a well-understood and consistently held policy developed in the Commission's regulation of broadcast television. (Home Box Office, Inc. v. FCC, supra note 29, at 28.)
Moreover, given the similarities between cable-casting operations and broadcasting, we seriously doubt that the Communications Act could be construed to give the Commission “regulatory tools” over cable-casting that it did not have over broadcasting. * * * Thus, even if the siphoning rules might in some sense increase the public good, this consideration alone cannot justify the Commission's regulations. (Home Box Office, Inc. v. FCC, supra note 29, at 31.) 57
*1053 Even the broadest opinion, that of the plurality in Midwest Video Corp., recognizes that the Commission can act only for ends for which it could also regulate broadcast television. Indeed, even this standard will be too commodious in certain cases, since * * * the scope of the Commission's constitutionally permitted authority over broadcast television in areas impinging on the First Amendment is broader than its authority over cable television. (Home Box Office, Inc. v. FCC, supra note 29 at 28.)
(S)carcity which is the result solely of economic conditions is apparently insufficient to justify even limited government intrusion into the First Amendment rights of the conventional press, see Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247-256, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and there is nothing in the record before us to suggest a constitutional distinction between cable television and newspapers on this point. (footnote omitted)
Various parties have questioned our judgment that there seems little likelihood of civil or criminal liability against cable operators from the use of access channels. The parties contend, understandably, that our feeling in this matter, however persuasive, *1059 is hardly a guarantee. They note, further, that although the cable operator will have no control over program content on access channels, he is charged with proscribing the presentation of obscene material. It is suggested that to this extent, at least, the operator will, in effect, be required to exercise control. To clarify this area, we are requested to seek legislation to grant immunity to a system operating under our access rule. We, of course, appreciate petitioner's concern over the liability issue. We still believe, however, that existing case law solves most problems in this area (footnote omitted). (Reconsideration of the Cable Television Report and Order, 36 F.C.C.2d 326, 357 (1972).)
Quality, effective, local programming demands creativity and interest. These factors cannot be mandated by law or contract. The net effect of attempting to require origination has been expenditure of large amounts of money for programming that was, in many instances, neither wanted by subscribers nor beneficial to the system's total operation. In those cases in which the operator showed an interest or the cable community showed a desire for local programming, an outlet for local expression began to develop regardless of specific legal requirements. During the suspension of the mandatory rule, cable operators have used business judgment and discretion in their origination decisions. For example, some operators have felt compelled to originate programming to attract and retain subscribers. These decisions have been made in light of local circumstances. This, we think, is as it should be. (Report and Order in Docket No. 19988, 49 F.C.C.2d 1090, 1105-06 (1974).)
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