CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 352. Blackmun and Powell, JJ., took no part in the decision of the case.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The Independent Offices Appropriation Act, 1952, Tit. 5, 65 Stat. 290, 31 U. S. C. § 483a, provides in relevant part: "It is the sense of the Congress that any work, service . . . benefit, . . . license, . . . or similar thing of value or utility performed, furnished, provided, granted . . . by any Federal agency . . . to or for any person (including . . . corporations . . .) . . . shall be self-sustaining to the full extent possible, and the head of each Federal agency is authorized by regulation . . . to prescribe therefor . . . such fee, charge, or price, if any, as he shall determine . . . to be fair and equitable taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts . . . ."*fn1 Petitioner is a trade association representing
community antenna television (CATV) systems which transmit TV programs by cable. The Federal Communications Commission is authorized to regulate these CATV outlets, as the Court held in United States v. Southwestern Cable Co., 392 U.S. 157. The power to regulate, though not in the form of granting licenses,
extends to the promulgation of regulations requiring the compulsory origination of programs by CATV. United States v. Midwest Video Corp., 406 U.S. 649. These CATV's, however, are not under the exclusive oversight of the Commission. Local governments and even some States provide permits or franchises to CATV's, including rights of way for the cables used. Some communities in return for their permits require the CATV to pay an annual percentage fee as a gross receipts tax.*fn2
The Commission in 1964 established only nominal filing fees that produced revenues which approximated 25% of the Commission's annual appropriation. See 21 F. C. C. 2d 502, 503. See also Aeronautical Radio, Inc. v. United States, 335 F.2d 304. The Bureau of the Budget urged higher fee schedules; and so did the committees of the Congress. See H. R. Rep. No. 91-316, pp. 7-8, and H. R. Conf. Rep. No. 91-649, p. 6, where it was stated:
"The committee of conference is agreed that the fee structure for the Commission should be adjusted to fully support all its activities so the taxpayers will not be required to bear any part of the load in view of the profits regulated by this agency."
The Commission, after notice and hearing, revised existing fees for licensees and for the first time imposed fees upon CATV's. It first estimated its direct and indirect costs for CATV regulation which were $1,145,400 or 4.6% of its total budget request for that year. Filing fees were retained; and there was added an annual fee for each cable television system at the rate of 30 cents for each subscriber. The Commission, finding that subscription rates clustered at about $5 a month, concluded that the 30-cent fee would typically amount to only about one-half of 1% of a CATV system's gross revenues from subscription. The fees would produce, it said, $1,145,000 annually, and it concluded that the 30-cent fee would approximate the "value to the recipient" used in the Act, 23 F. C. C. 2d 880; 28 F. C. C. 2d 139.
Petitioner obtained review of the decision in the Court of Appeals, which approved the Commission's action, 464 F.2d 1313. The case is here on a petition for certiorari which we granted, 411 U.S. 981, because of an apparent conflict between the decision in this case and the decision in New England Power Co. v. FPC, 151 U. S. App. ...