420 OCTOBER TERM, 1973 DOUGLAS, J., dissenting 415 U.S. right Act. "Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but provisions of this chapter arc in addition to such remedies." 47 U. S. C. § 414. Moreover, the Federal Communications Commission has realized that it can "neither resolve, nor avoid" the problem under the Copyright Act, when it comes to CATV." On January 14, 1974, the Cabinet Committee on Cable Communications headed by Clay T. Whitehead made its Report to the President. That Report emphasizes the need for the free flow of information in a society that honors "freedom of expression"; and it emphasizes that CATV is a means to that end and that CATV is so closely "linked to... electronic data processing, telephone, television and radio broadcasting, the motion picture and music industries, and communications satellites,” id., at 14, as to require "a consistent and coherent national policy." Ibid. The Report rejects the regulatory framework of the Federal Communications Commission because it creates "the constant danger of unwarranted governmental influence or control over what people see and hear on television broadcast programming," id., at 20. The Report opts for a limitation of "the number of channels over which the cable operator has control of 5 The Solicitor General in his memorandum in the Fortnightly case urged that the cable transmission of other stations' programs into distant markets be subject to copyright protection: "[M]uch of the advertising which accompanies the performance of copyrighted works, such as motion pictures, is directed solely at potential viewers who are within the station's normal service area-'local' advertising and 'national spot' advertising both fall within that category. Such advertisers do not necessarily derive any significant commercial benefit from CATV carriage of the sponsored programs outside of the market ordinarily served by the particular station, and accordingly may be unwilling to pay additional amounts for such expanded coverage." Memorandum for the United States as amicus curiae in No. 618, O. T. 1967, p. 10. 394 TELEPROMPTER CORP. v. CBS DOUGLAS, J., dissenting 421 program content and to require that the bulk of channels be leased to others." Ibid. The Report recognizes that "copyright liability" is an important phase of the new regulatory program the Committee envisages, id., at 39. The pirating of programs sanctioned by today's decision is anathema to the philosophy of this Report: "Both equity and the incentives necessary for the free and competitive supply of programs require a system in which program retailers using cable channels negotiate and pay for the right to use programs and other copyrighted information. Individual or industry-wide negotiations for a license, or right, to use copyrighted material are the rule in all the other media and should be the rule in the cable industry. "As a matter of communications policy, rather than copyright policy, the program retailer who distributes television broadcast signals in addition to those provided by the cable operator should be subject to full copyright liability for such retransmissions. However, given the reasonable expectations. created by current regulatory policy, the cable operator should be entitled to a non-negotiated, blanket license, conferred by statute, to cover his own retransmission of broadcast signals." Ibid. The Whitehead Commission Report has of course no technical, legal bearing on the issue before us. But it strongly indicates how important to legislation is the sanctity of the copyright and how opposed to ethical business systems is the pirating of copyrighted materials. The Court can reach the result it achieves today only by "legislating" important features of the Copyright Act out of existence. As stated by THE CHIEF JUSTICE in United States v. Midwest Video Corp., 406 U. S. 649, 676, 422 OCTOBER TERM, 1973 DOUGLAS, J., dissenting 415 U.S. "[t]he almost explosive development of CATV suggests the need of a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress and not left entirely to the Commission and the courts." That counsel means that if we do not override Fortnightly, we should limit it to its precise facts and leave any extension or modification to the Congress. 1140 652 FEDERAL REPORTER, 20 SERIES MALRITE T. V. OF NEW YORK, et FEDERAL COMMUNICATIONS Nos. 865, 1284 to 1286, Dockets 80-4120, United States Court of Appeals, Argued March 19, 1981. Decided June 16, 1981. On a petition to set aside a report and order of the Federal Communications Com MALRITE T. V. OF N. Y. v. F. C. C. Decision of Federal Communications Commission to repeal cable television rules on distant signal carriage and syndicated program exclusivity was supported by fair reading of Copyright Act, and action of Commission was neither arbitrary nor capricious. 5 U.S.C.A. § 706(2)(A); 17 U.S. C.A. §§ 101 et seq., 111, 111(c)(1), 115, 116, 118, 801, 801(b)2XB, C). 3. Telecommunications 449 Plain import of statute was that Federal Communications Commission, in its development of communications policy, might increase number of distant signals that cable systems can carry and might eliminate syndicated exclusivity rules, in which event Copyright Royalty Tribunal would be free to respond with rate increases. 17 U.S.C.A. §§ 801, 801(b)(2)(B, C). 4. Telecommunications 1 Federal Communications Commission was not obliged by 1976 Copyright Act to preserve existing rules, but was not free to adopt new one that would be inconsistent 1141 public interest, neither of which commands specific industry structure or protection of any particular stations from financial difficulty or even failure, Commission in the past has accorded special treatment to UHF stations but is not required to do so when in its judgment the public interest would be disserved. Communications Act of 1934, §§ 1, 303, 47 U.S.C.A. §§ 151, 303. 6. Telecommunications ✪449 Property of regulated industries is subject to such limitations as may reasonably be imposed in public interest, and regulations may be adopted that abolish or modify the existing interests, and Federal Communications Commission on deciding to repeal cable television rules on distant signal carriage and syndicated program exclusivity was not required to grandfather existing syndicated program exclusivity contracts. 17 U.S.C.A. §§ 101 et seq., 111, 111(c)(1), 115, 116, 118, 801, 801(b)(2)(B, C). 7. Telecommunications 449 Federal Communications Commission could find that repealing cable television rules on distant signal carriage and syndicated program exclusivity would be in public interest though lower-income families benefit more from system of free television than from cable television. 17 U.S.C.A. §§ 101 et seq., 111, 111(c)(1), 115, 116, 118, 801, 801(b)(2)(B, C). 9. Telecommunications 8 Where it was only after extended in with basic arrangements of the new legisla- quiry into effect of existing regulations and tion. 17 U.S.C.A. §§ 101 et seq., 111. 5. Telecommunications 449 Under Federal Communications Commission's statutory directives to promote rapid, efficient nationwide communications service and to encourage its use in the state of industry that encompassed several years of investigation and thorough consideration of vast material compiled that Federal Communications Commission concluded that existing regulations should be repealed, and only after receiving such evidence did Commission ask members of pub |