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4 Abel Cable Goes to Washington (1950–1960) In the development of community antenna systems. . . I felt that I could no more protect a television station from a community antenna service than I could protect it from a local drive-in movie house or whatever other form of attraction might develop within the service area of a television station. —FCC Chairman John Doerfer, U.S. Senate Hearings, May 27, 19581 T he FCC was aware of community antenna television from the start. L. E. Parsons, of course, had written the FCC early on in his experiments, describing the technology, the results, and the prospects. He had actively, albeit unsuccessfully, sought approval for a broadcast retransmission system to replace his coaxial cable. While the agency rejected his request, it did send a field engineer to visit Parsons’ system. The engineer’s report ended up on the desk of a young FCC staff attorney. E. Stratford Smith would later become the NCTA’s chief legal counsel and first executive director, but he got his start in the Common Carrier Bureau of the FCC. Smith recalls that with the engineer’s report came a request from his superiors that he look into the question of whether or not community TV services fell within the Commission’s jurisdiction.2 It was around the fall of 1949, according to Smith, and it was the first serious consideration the FCC would give to CATV. It would, as it turned out, be years before the Commission issued an opinion on community television, but Smith began his investigation shortly after receiving the Astoria, Oregon, material. He visited Abe Harter’s CATV system in Franklin, Pennsylvania, probably in the fall of 1950, and took a shorter trip in 1951 to Pottsville, Pennsylvania, where he talked with Marty Malarkey. He began drafting a memorandum and opinion on the FCC’s relationship with the new broadcasting-related business. While CATV operators worked through the technical and business challenges of the 1950s, traced in the previous chapter, they also came Abel Cable Goes to Washington (1950–1960) / 123 to confront a growing federal regulatory presence. Broadcasting and telecommunications in the United States has nearly always existed in the context of significant federal control. An extensive, detailed, and frequently changing statutory framework, enacted by Congress and executed by the FCC, guides and constrains the activities of the related industries. The evolution of cable television has been powerfully shaped by this legal environment, which itself has been subject to great changes over time. Consideration of the relationship between cable television, Congress, the FCC, and the courts is a major topic of this book, and the first encounters between cable and the government in the 1950s is the focus of this chapter. The FCC, to begin, was feeling some modest pressure in the early 1950s to act on the legal status of community television. The first inquiries came primarily from people who wanted to get into the business. As interest in community TV grew in 1951 and 1952, the FCC began receiving letters from eager entrepreneurs wondering whether they needed Commission approval to start a system, and if they did, what application forms might be necessary and what restrictions might apply. Broadcasters, too, were curious about the legal status of CATV. Was it a service subject to FCC oversight? If so, how would it be defined and regulated? Was it a common carrier, a retransmission service, a broadcaster? Under the Federal Communications Act of 1934, the Commission was given the authority to regulate, broadly, two kinds of services, broadcasting and common carriage. The former, under Title III of the Act, included everyone who used the airwaves (outside of the military and other governmental agencies), most especially radio and TV operators. The common carrier authority, Title II of the Act, included, primarily, telephone and telegraph services. In order for the FCC to invoke authority, CATV would have to be declared, at least de facto, a broadcasting service or a common carrier. Many people wanted to know which, if either, it would be. To these requests, like the earliest ones sent by Parsons, Tarlton, and Walson, the FCC replied tersely and repeatedly that it had “as yet taken no position with respect to its jurisdiction over such systems, but that the matter (was) receiving attention, particularly with respect to the status of such operations under the provisions of Title II of the Communications Act, as amended, applicable to common carriers.”3 The Commission, in short...

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