Opinion of BRENNAN, J. 406 U.S. Deputy Solicitor General Wallace argued the cause for the United States et al. With him on the briefs were Solicitor General Griswold, Richard B. Stone, John W. Pettit, and Edward J. Kuhlmann. Harry M. Plotkin argued the cause for respondent. With him on the brief were Wayne W. Owen, George H. Shapiro, and David Tillotson. Briefs of amici curiae urging affirmance were filed by William J. Scott, Attorney General, Peter A. Fasseas, Special Assistant Attorney General, and Roland S. Homet, Jr., for the State of Illinois; by Paul Rodgers for the National Association of Regulatory Utility Commissioners; and by Melvin L. Wulf for the American Civil Liberties Union. MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join. Community antenna television (CATV) was developed long after the enactment of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq., as an auxiliary to broadcasting through the retransmission by wire of intercepted television signals to viewers otherwise unable to receive them because of distance or local terrain.' In United States v. Southwestern Cable Co., 392 U. S. 157 (1968), where we sustained the jurisdiction of 1 "CATV systems receive the signals of television broadcasting stations, amplify them, transmit them by cable or microwave, and ultimately distribute them by wire to the receivers of their subscribers." United States v. Southwestern Cable Co., 392 U. S. 157, 161 (1968). They "perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae." Id., at 163. 649 Opinion of BRENNAN, J. the Federal Communications Commission to regulate the new industry, at least to the extent "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," id., at 178, we observed that the growth of CATV since the establishment of the first commercial system in 1950 has been nothing less than "'explosive.'" Id., at 163.2 The potential of the new industry to augment communication services now available is equally phenomenal. As we said in Southwestern, id., at 164, CATV "[promises] for the future to provide a national communications system, in which signals from selected broadcasting centers would be transmitted to metropolitan areas throughout the country." Moreover, as the Commission has noted, "the expanding multichannel capacity of cable systems could be utilized to provide a variety of new communications services to homes and businesses within a community," such as facsimile reproduction of documents, electronic mail delivery, and information retrieval. Notice of Proposed Rulemaking and Notice of Inquiry, 15 F. C. C. 2d 417, 419-420 (1968). Perhaps more important, CATV systems can themselves originate programs, or "cablecast"-which means, the Commission has found, that CATV can "[increase] the number of local outlets for community self-expression and [augment] the public's choice of programs and types of service, without use of broadcast spectrum . . . .' Id., at 421. 2 There are now 2,678 CATV systems in operation, 1,916 CATV franchises outstanding for systems not yet in current operation, and 2,804 franchise applications pending. Weekly CATV Activity Addenda, 12 Television Digest 9 (Feb. 28, 1972). 3 For this reason the Commission has recently adopted the term "cable television" in place of CATV. See Report and Order on Cable Television Service; Cable Television Relay Service, 37 Fed. Reg. 3252 n. 9 (1972) (hereinafter cited as Report and Order on Cable Television Service). Opinion of BRENNAN, J. 406 U.S. Deputy Solicitor General Wallace argued the cause for the United States et al. With him on the briefs were Solicitor General Griswold, Richard B. Stone, John W. Pettit, and Edward J. Kuhlmann. Harry M. Plotkin argued the cause for respondent. With him on the brief were Wayne W. Owen, George H. Shapiro, and David Tillotson. Briefs of amici curiae urging affirmance were filed by William J. Scott, Attorney General, Peter A. Fasseas, Special Assistant Attorney General, and Roland S. Homet, Jr., for the State of Illinois; by Paul Rodgers for the National Association of Regulatory Utility Commissioners; and by Melvin L. Wulf for the American Civil Liberties Union. MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join. Community antenna television (CATV) was developed long after the enactment of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq., as an auxiliary to broadcasting through the retransmission by wire of intercepted television signals to viewers otherwise unable to receive them because of distance or local terrain.1 In United States v. Southwestern Cable Co., 392 U. S. 157 (1968), where we sustained the jurisdiction of 1 "CATV systems receive the signals of television broadcasting stations, amplify them, transmit them by cable or microwave, and ultimately distribute them by wire to the receivers of their subscribers." United States v. Southwestern Cable Co., 392 U. S. 157, 161 (1968). They "perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae." Id., at 163. 649 Opinion of BRENNAN, J. the Federal Communications Commission to regulate the new industry, at least to the extent "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," id., at 178, we observed that the growth of CATV since the establishment of the first commercial system in 1950 has been nothing less than "'explosive.' 'explosive.'" Id., at 163. The potential of the new industry to augment communication services now available is equally phenomenal. As we said in Southwestern, id., at 164, CATV "[promises] for the future to provide a national communications system, in which signals from selected broadcasting centers would be transmitted to metropolitan areas throughout the country." Moreover, as the Commission has noted, "the expanding multichannel capacity of cable systems could be utilized to provide a variety of new communications services to homes and businesses within a community," such as facsimile reproduction of documents, electronic mail delivery, and information retrieval. Notice of Proposed Rulemaking and Notice of Inquiry, 15 F. C. C. 2d 417, 419-420 (1968). Perhaps more important, CATV systems can themselves originate programs, or "cablecast"-which means, the Commission has found, that CATV can "[increase] the number of local outlets for community self-expression and [augment] the public's choice of programs and types of service, without use of broadcast spectrum Id., at 421. 2 There are now 2,678 CATV systems in operation, 1,916 CATV franchises outstanding for systems not yet in current operation, and 2,804 franchise applications pending. Weekly CATV Activity Addenda, 12 Television Digest 9 (Feb. 28, 1972). 3 For this reason the Commission has recently adopted the term "cable television" in place of CATV. See Report and Order on Cable Television Service; Cable Television Relay Service, 37 Fed. Reg. 3252 n. 9 (1972) (hereinafter cited as Report and Order on Cable Television Service). Opinion of BRENNAN, J. 406 U.S. ... Recognizing this potential, the Commission, shortly after our decision in Southwestern, initiated a general inquiry "to explore the broad question of how best to obtain, consistent with the public interest standard of the Communications Act, the full benefits of developing communications technology for the public, with particular immediate reference to CATV technology Id., at 417. In particular, the Commission tentatively concluded, as part of a more expansive program for the regulation of CATV, "that, for now and in general, CATV program origination is in the public interest," id., at 421, and sought comments on a proposal "to condition the carriage of television broadcast signals (local or distant) upon a requirement that the CATV system also operate to a significant extent as a local outlet by origi The early regulatory history of CATV, canvassed in Southwestern, need not be repeated here, other than to note that in 1966 the Commission adopted rules, applicable to both microwave and non-microwave CATV systems, to regulate the carriage of local signals, the duplication of local programing, and the importation of distant signals into the 100 largest television markets. See infra, at 659. The Commission's 1968 notice of proposed rulemaking addressed, in addition to the program origination requirement at issue here, whether advertising should be permitted on cablecasts and whether the broadcast doctrines of "equal time," "fairness," and sponsorship identification should apply to them. Other areas of inquiry included the use of CATV facilities to provide common carrier service; federal licensing and local regulation of CATV; cross-ownership of television stations and CATV systems; reporting and technical standards; and importation of distant signals into major markets. The notice offered concrete proposals in some of these areas, which were acted on in the Commission's First Report and Order, 20 F. C. C. 2d 201 (1969) (hereinafter cited as First Report and Order), and Report and Order on Cable Television Service. See also Memorandum Opinion and Order, 23 F. C. C. 2d 825 (1970) (hereinafter cited as Memorandum Opinion and Order). None of these regulations, aside from the cablecasting requirement, is now before us, see n. 14, infra, and we, of course, intimate no view on their validity. |