channels in scores of communities "under the umbrella" of existing air stations, both VHF and UHF.

Thus, "drop-ins" of wired stations in crowded population centers would bring local service to hundreds of localities otherwise deprived of their own local TV stations, both VHF and UHF, through lack of frequencies in the spectrum.

Such "drop-ins" would in no way alter the FCC's fixed cochannel and adjacent channel milage separations, since wired systems can be "spaced” as close as one city block-or less-apart.

7. Provides sound economic foundation upon which every city-even small communities--can build TV stations and supply a local program service.

8. Eliminates total dependence by TV broadcasters on commercial advertising support to keep going-and, in so doing, makes possible quality programing unencumbered with commercial interruptions.

9. Provides a wider diversity of programing at the local level by permitting simultaneous telecasting of local, regional, and national events-with the public having a choice of attractions.

10. Opens broad avenues for expanded public service and educational broadcasting at the classroom as well as the home level.

11. Adds a new dimension to mass communication via television broadcasting and, as such, deserves every opportunity to prove itself in the marketplace with the public as sole judge-in keeping with the highest traditions of fairplay in business under the American system of free enterprise.

CONCLUSION

In conclusion, the congressional mandate to the Commission has always been to encourage and develop a "truly nationwide, competitive television system." There is every reason to believe that competition to the existing broadcasting system by wired television broadcasting with its multiple-channel television cable will serve to enlarge, broaden and improve television service to the public. In short, multichannel wired television serves the public interest. It should not be destroyed in its infancy, or crippled by restrictive legislative or regulatory action.

The CHAIRMAN. Thank you very kindly, Mr. Porter. You have been very kind to summarize your statement. You have certainly helped the committee save some time.

Mr. PORTER. Mr. Chairman, I have never made any permanent enemies on a congressional committee by saving your time.

The CHAIRMAN. I beg your pardon?

Mr. PORTER. I have never made any permanent eneimies on a congressional committee by saving the time of a busy congressional com

mittee.

The CHAIRMAN. Thank you very kindly. We appreciate your coming and giving us the benefit of your views. This is something different, and we want to get the record as complete as possible.

Mr. Rogers, do you have some questions?

Mr. ROGERS of Texas. Mr. Porter, you have served as a member of the Federal Communications Commission?

Mr. PORTER. Long years ago, Mr. Rogers.

Mr. ROGERS of Texas. That was before some of these things that could not be done were done?

Mr. PORTER. You mean as far as the technical advances?

Mr. ROGERS of Texas. Yes, sir.

Mr. PORTER. Indeed it was.

Mr. ROGERS of Texas. Those things that were impossible at that time, they were for the future, the same as flying.

Mr. PORTER. That is correct, sir.

Mr. ROGERS of Texas. Man can fly, they found out.

You quoted Chairman Henry as saying that the possibility of satellite reflection or broadcasting going directly into the home-I

t?

not read his speech and did not hear it. Did he enlarge upon

Ir. PORTER. I do not think he dwelt upon it in great detail, Mr. gers. I think Chairman Henry was just opening new vistas. Now, this question of direct broadcasting by satellites, as you well ow, is an infinitely complicated question. Technically, I am told my friends at Comsat that it is feasible. It could be done nestically, but in the 46 nations' international consortium, there questions as to whether it would be an invasion of sovereignty by roadcast originated in this country. I expect Mr. de Gaulle might e some dim views if we undertook to do that.

Ir. ROGERS of Texas. I am sure he would.

When you were on the Commission, Mr. Porter, was it your underading that the Communications Act was passed to provide for rictions and restraint on communications?

Ir. PORTER. My conception, Mr. Rogers, was in the declaration of icy of the statute, to develop a nationwide system of efficient and id communication and that competition was the underlying policy itle III, which is the broadcast section.

Ir. ROGERS of Texas. I was interested in your remarks about the stitutionality point that is raised by this proposal. I think you exactly right. I think that the court in the Pat Weaver case exactly right, because I think they held that along with the right ree speech is a corresponding right or inclusive right that this free ech may be exercised where it can be and probably will be heard. Ir. PORTER. Right.

Ir. ROGERS of Texas. Free speech would not amount to very much closed room where no one would hear it. Sometimes I think is what we are doing up here.

'hank you very much.

[r. PORTER. Thank you very much.

he CHAIRMAN. Mr. Younger?

[r. YOUNGER. No questions.

he CHAIRMAN. Mr. Van Deerlin?

Ir. VAN DEERLIN. No, thank you, Mr. Chairman.

he CHAIRMAN. Again I must say thank you, Mr. Porter. Thanks summarizing your statement. You have added to the record. [r. PORTER. Thank you very much.

he CHAIRMAN. Our next witness is Mr. Benedict Cottone, attorfor the Television Accessory Manufacturers Institute.

r. Cottone, you have submitted your statement for the record. may summarize it in a few words, or read it if you feel that you do it better that way.

TEMENT OF BENEDICT COTTONE, ATTORNEY FOR TELEVISION CCESSORY MANUFACTURERS INSTITUTE (TAME), WASHINGON, D.C.

r. COTTONE. Thank you, Mr. Chairman. My statement is rather f. Some of it is a repetition of what we have stated to the comee when it was considering another bill with regard to regulaof CATV, but I will try to make it as brief as possible.

62-610-66- -44

My name is Benedict P. Cottone. I am the attorney for TAME, Inc., which is known as the Television Accessory Manufacturers Institute.

As I stated, the interest of our organization in the matter before you has been set forth in earlier testimony that we have given. I order to conserve your time, I would like briefly to summarize what our position has been and is.

It is our belief that if there is to be any Federal legislation in regard to CATV, it should be legislation which recognizes and affirms the need for effective FCC regulation of CATV operations so that the public will be assured of the benefits of direct local television reception.

We also recognize that the benefits of CATV should be taken into account, but we believe that those benefits should be related to CATV as a supplementary or as an auxiliary service to direct off-the-air television broadcasting.

Now, since it appears that, with all due respect to Congressman Rogers, H.R. 12914 would deny the Commission the authority to regulate CATV so as to effectuate those purposes, we are, of course, opposed to that bill.

We support, as minimum requirements for achieving the benefits of free off-the-air television service, the regulatory measures which the FCC has enacted in the form of regulations and which H.R. 13286 would affirm, at least insofar as the authority of the Commission is concerned.

We still believe, as we always have believed, that the only way that CATV operations can be effectively regulated is to make them subject to substantially the same requirements as are now applicable to broadcasting stations. I have reference to the proposal which we have made and which we submitted during the course of the last hearings by this committee, the proposal that would enact, establish, a licensing system for CATV's.

We believe also that it is not enough that the regulation of CATV should achieve the primary purpose of protection of free direct television broadcast reception, because this protects only those members of the public who are able to obtain such reception. Those who cannot obtain such reception but must rely on CATV and must pay for their television reception are equally, if not more entitled to protection, merely, protection against unreasonable charges, against degraded service, and against curtailment of service. As we have stated before, we believe that under existing law, the Commission now has authority to regulate CATV so as to protect the public in this manner.

Now, that question came up before the court. I refer to the fact that there has been pending a suit involving the Commission's authority to regulate CATV as common carriers.At the time this statement was written-I referred to the fact that the suit was pending. There has now been a decision in that case. I would like to submit for the record a copy of that decision, because I think it will be helpful.

The court did not rule on the question of whether CATV is a common carrier, but

Mr. ROGERS of Texas (presiding). Which case is that?

Mr. COTTONE. Philadelphia Television Broadcasting Co. v. Federal Communications Commission.

In a decision handed down on March 28 by Judge Leventhal for the court, the court indicated that the Commission was free to proceed in regulating CATV by either of two routes, that it is a proper exercise of the Commission's discretion to decide that it would attempt to regulate CATV as an adjunct of the broadcasting service, and that the Commission was not unreasonable in exercising its discretion so as to forego regulation of CATV as a common carrier, but to regulate them instead in the manner that they had done-they had just come out with this second report at the time-but that it was a reasonable avenue for the Commission to pursue to regulate CATV in the manner in which they had done.

Now, the court did state in a footnote that they were not deciding the validity of the Commission's regulations, but they gave a fairly strong indication that they felt that that was a reasonable approach. If I may, with your permission, Mr. Chairman

Mr. ROGERS of Texas. How long is that opinion?

Mr. COTTONE. It is a very short one.

Mr. ROGERS of Texas. Without objection, it will be included in the record.

(The document referred to follows:)

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit
No. 19,577

PHILADELPHIA TELEVISION BROADCASTING Co., PERMITTE OF CONSTRUCTION PERMIT FOR TELEVISION STATION WPHL-TV ET AL., PETITIONERS, V. FEDERAL COMMUNICATIOS COMMISSION, UNITED STATES OF AMERICA, RESPONDENTS; ROLLINS, INC., NATIONAL COMMUNITY TELEVISION ASSOCIATION, INC., INTERVENORS Petition for Review of Order of the Federal Communications Commission

(Decided March 28, 1966)

Mr. Joseph A. Fanelli, with whom Mr. Benedict P. Cottone was on the brief, for petitioners.

Mr. Daniel Ohlbaum, Deputy General Counsel, Federal Communications Commission, for respondents. Assistant Attorney General Turner, Messrs. Henry Geller, General Counsel, Federal Communications Commission, John H. Colin, Associate General Counsel, Mrs. Lenore Ehrig, Attorney, Federal Communications Commission, and Mr. Lionel Kestenbaum, Attorney, Department of Justice, were on the brief, for respondents.

Mr. Stanley S. Neustadt for intervenor, Rollins, Inc.. Messrs. Marcus Cohn, Paul Dobin and Joel H. Levy were on the brief for intervenor, Rollins, Inc. Messrs. Robert D. L'Heureux, E. Stratford Smith and Roger E. Zylstra were on the brief for intervenor, National Community Television Association, Inc. Before: WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge: Petitioners filed a complaint with the Federal Communications Commission seeking an order that Rollins Broadcatsing, Inc. cease and desist from constructing and operating a community antenna television (CATV) system serving Wilmington, Delaware, until Rollins complies with the requirements of Title II of the Communications Act, 47 U.S.C. §§ 201222, with respect to common carriers. The Commission, being of the view that CATV systems are not common carriers within the meaning of Title II, summarily dismissed the compaint. We affirm the Commission's action, for reasons developed below.

Petitioners urge that CATV systems are common carriers within the meaning of the Communications Act, and that the FCC is therefore required to apply the provisions of Title II of that Act, e.g., requiring CATV systems to obtain certifcates of public convenience and necessity, and file charges with the Commission. In approaching the problem of statutory interpretation before us, we show "great deference to the interpretation given the statute by the officers or agency charged with its administration. To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.'

We think such deference to the agency's interpretation of its governing statute is reinforced where, as here, the legislative history is silent, or at best unhelpful. with respect to the point in question. Congress in passing the Communications Act in 1934 could not, of course, anticipate the variety and nature of methods of communication by wire or radio that would come into existence in the decades to come. In such a situation, the expert agency entrusted with administration of a dynamic industry is entitled to latitude in coping with new developments in that industry.

The Commission, responsive to the increasing impact of CATV, has undertaken a system of regulation in the public interest. It began with the CATV systems served by microwave carriers, and it now has asserted jurisdiction over all CATV systems under the general provisions of the Act, and issued regulations.* The Commission had already announced proposed rules, predicated on such jurisdiction, at the time it dismissed petitioners' complaint. Its holding that CATV systems are not common carriers thus comes before us in a context of regulation of the CATV systems under different provisions of the Communications Act. In a statutory scheme in which Congress has given an agency various bases of jurisdiction and various tools with which to protect the public interest, the agency is entitled to some leeway in choosing which jurisdictional base and which regulatory tools will be most effective in advancing the Congressional objective. It is the FCC's position that regulating CATV systems as adjuncts of the nation's broadcasting system is a more appropriate avenue for Commission action than the wide range of regulation implicit in the common carrier treatment urged by petitioners. This seems to us a rational and hence permissible choice by the agency."

Affirmed

Mr. COTTONE. Now, we are glad to see that in H.R. 13286, which is the bill the Commission has recommended, it is expressly recognized in section 331 (c) that no Federal preemption of State regulation of CATV systems as public utilities is intended. As we previously recommended, if it be considered by Congress to be undesirable for the Commission following a court adjudication to regulate the rates of CATV systems, nothing should be done which would indicate Federal preemption of this area of regulation from State regulatory commissions or other State authorities.

Now, to get down more specifically to the provisions of H.R. 13286, that bill contemplates the same approach to CATV regulation which

1 Udall v. Tallman, 380 U.S. 1, 16 (1965), quoting Unemployment Comm'n v. Aragon, 329 U.S. 143, 153 (1946). See also Power Reactor Development Co. v. Electrical, Radio & Machine Workers, 367 U.S. 396. 408 (1961); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933); Born v. Allen, 110 U.S. App. D.C. 217, 223, 291 F. 2d 345. 351 (1960).

Carter Mountain Transmission Corp., 32 F.C.C. 459 (1962), affirmed, 116 U.S. App. D.C. 93, 321 F. 2d 359, cert. denied, 375 U.S. 951 (1963).

3 See Second Report and Order, Dockets No. 14895. 15233. 15971 (March 4, 1966).

4 Notice of Inquiry and Proposed Rulemaking re All CATV Systems, Docket No. 15971. 1 F.C.C. 2d 453 (April 22, 1965).

5 We of course do not pass judgment on the validity of the broad jurisdictional base asserted by the Commission in its Notice of Inquiry and Proposed Rulemaking of April 1965, and in the recently issued rules with respect to all CATV systems. See 1 F.C.C. 2d at 478-82. But the basis is already established insofar as microwave-served CATV Sys tems are concerned. Carter Mountain Transmission Corp. v. FCC, 116 U.S. App. D.C. 93. 321 F.2d 359, cert. denied, 375 U.S. 951 (1963); Idaho Microwave, Inc. v. FCC, App. D.C. 352 F. 2d 729 (1965). Certaintly the Commission's assertion of jurisdiction over CATV systems by its order of March 4, 1966, is substantial enough to serve as a basis for declining to regulate them as common carriers.

U.S.