Philadelphia Community Cable Coalition v. Federal Communications Commission

531 F.2d 1240

• Court: Court of Appeals for the Third Circuit
• Decided: March 19, 1976
• Docket: Nos. 75-1293, 75-1700
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

We have considered the various contentions raised by the petitions to vacate and set aside orders of the Federal Communications Commission. While we deny the petitions, we are constrained to express our concern that the FCC has no rules to regulate transfers of ownership of cable television franchises. The possibility of “trafficking” in franchises, therefore, is very real.

At present the FCC has delegated these matters to the local authorities — the City of Philadelphia, in these cases — under the FCC’s structured dualism approach to cable regulation. We have been advised by brief and at oral argument that the FCC now has under active consideration the question whether it should undertake to regulate transfers. Clarification of the Cable Television Rules and Notice of Proposed Rule-making and Inquiry, 46 F.C.C.2d 175, 198-99 (1974). Thus, there is some indication that the FCC will promulgate rules or insist that the local authorities do so. There is a serious question whether such delegation is consistent with the duties of the Commission under § 310(b) of the Communications Act, 47 U.S.C. § 310(b). Cf. Crowder v. F.C.C., 130 U.S.App.D.C. 198, 399 F.2d 569, 571-73, cert. denied, 393 U.S. 962, 89 S.Ct. 400, 21 L.Ed.2d 375 (1968). Were a broadcast station implicated, the provisions of 47 C.F.R. § 1.597(d) would come into play, requiring a careful examination of transfer and assignment applications “on a case-to-case basis, to determine whether any characteristics of trafficking remain.” We will not disturb the Commission’s conclusions on trafficking because the franchises in issue here expire on December 12, 1976. During the processing of franchise renewal applications, questions presented on these petitions as to ownership and acquisition thereof may be presented.

We will deny the petition of Philadelphia Community Cable Coalition, Synapse Communications Collective, Inc., Concerned Communications, Inc., Ralph M. Moore, Jr., Leanne Smith Keys, and John F. O’Rourke at No. 75-1293 for the reasons set forth by the Commission. Philadelphia Cable Television Co., 49 F.C.C.2d 274 (1974), on reconsideration, 51 F.C.C.2d 530 (1975). Similarly, we will deny the petition of Philadelphia Cable Coalition at No. 75-1700 for the reasons set forth by the Commission. North Philadelphia Cable Television Corp., 53 F.C. C.2d 600 (1975).

Costs taxed against petitioners.