United States v. Southwestern Cable Company/Concurrence White

by Byron White

United States Supreme Court

392 U.S. 157

United States  v.  Southwestern Cable Company

 Argued: March 12 and 13, 1968. --- Decided: June 10, 1968

Mr. Justice WHITE, concurring in the result.

My route to reversal of the Court of Appeals is somewhat different from the Court's. Section 2(a) of the Communications Act, 47 U.S.C. § 152(a), says that '(t)he provisions of this chapter shall apply to all interstate and foreign communication by wire or radio * * *.' (Emphasis added.) I am inclined to believe that this section means that the Commission must generally base jurisdiction on other provisions of the Act. This position would not, however, require invalidation of the assertion of jurisdiction before us today. Section 301, 47 U.S.C. § 301, gives the Commission broad authority over broadcasting, and § 303, 47 U.S.C. § 303, confers authority to '(m)ake such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this chapter' and also the authority to establish areas or zones to be served by any station. The Commission has ample power under these provisions to prevent a Los Angeles television broadcaster from interfering with broadcasting in San Diego. For example, the Commission could stop a Los Angeles television station from owning and operating a wire CATV system which carried the station's signals into San Diego. The Commission should also be able to prevent a third party from disrupting Commission-licensed broadcasting in the San Diego market.

Even if §§ 301 and 303 in themselves furnish insufficient basis for the Commission to enjoin extraneous interference with the San Diego broadcasting scheme it has authorized, § 2(a), supra, makes the provisions of the Act, including §§ 301 and 303, applicable to all wire and radio communication. Hence the Commission is authorized to regulate wire communications to implement the ends of §§ 301 and 303, and authorized as well to use its express authority over broadcasting to enforce its specific powers over common carriers by wire.

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