An attempt by the Federal Communications Commission to require cable television operators to provide access to any member of the public has been rejected by a federal appeals panel here.
A three-judge panel of the Eighth U.S. Circuit Court of Appeals, in a landmark opinion, said tha FCC exceeded its jurisdiction when it issued the access requirements two years ago.
The court said also that the FCC's requirement that cable systems be required to provide air time at little or no charge - and with only minimal control over what would be broadcast - violated the First Amendment.
"We deal here with the Federal Communications Commission, not the Federal First Amendment Commisstion," the panel wrote.
In a 1976 decision, the FCC ordered all cable operators with 3,500 or more subscribers to maintain equipment capable of transmitting programming over 20 channels by June, 1986 and to provide four channels for use by the public, educational institutions, government and persons who wish to buy time.
Under the FCC's order, the public access channel was to "be forever supplied without charge." The only control cable operators could exert over the channel would be a prohibition against the airing of lottery information, obscenities and commercial and political advertising.
The court of appeals, in a ruling announced Thursday, agreed with allegations brought by Midwest Video Corp. of Arkansas that the FCC lacks authority to issue such regulations.
"Jurisdiction is not acquired through visions of Valhalla," the panel said. "An agency can neither create nor lawfully expand its jurisdiction by merely deciding what it thinks the future should be like, finding a private industry that can be restructured to make that future at least possible and then forcing the restructuring, in the mere hope that if it's there it will be used."
Chief Judge Howard T. Markey, of the U.S. Court of Customs and Patent Appeals was designated to heat the case. He wrote an 81-page opinion sharply critical of the FCC.
Other members of the panel were Judge Roy L. Stephenson and former judge William H. Webster, who was sworn in Thursday as director of the Federal Bureau of Investigation.
Webster wrote a one-paragraph opinion concurring with the majority that the FCC lacked authority to issue that regulation. He said, however, that while he was in "general agreement" with Markey's analysis of the First Amendment issues raised in the case, he did not join Markey's opinion because he thought it unnecessary to consider the First Amendment questions.
"In our view," Markey wrote, "the present mandatory access, channel construction and equipment availability rules burst through the outer limits of the (FCC's) delegated jurisdiction."
The Communications Act of 1934, from which the FCC derives its authority, "however broadly read, contains to objectives so broad as to encompass whatever is necessary to get everybody on television. If that major foray be a legitimate goal, it must be established not by the commission or the courts, but by Congress," he wrote.
Markey said the proposed FCC regulations do not protect the right of free speech. "On the contrary, (the FCC) has embarked, with positive commands, on a crusade to create a public right to use cable facilities," he wrote.
The judge said the case is the first to raise First Amendment implications of an FCC effort to enforce unlimited public access requirements.
"Every individual's right to speak, precious and paramount as it is, does not include every individual's right to be given the possibility of an audience by government fiat, or to speak in a non-public forum, like a newspaper, a magazine or on the Senate floor."
"The First Amendment rights of capable operators rise from the Constitution; the public's 'right' to 'get on television' stems from the (FCC's) desire to create that 'right.'"
Markey said that no government agency has the "fatal-to-freedom power" to dictate how newspapers allocated their space. Nor, he said, does the government have the power to tell cable operators how to allocate their channels.
"Were it necessary to decide the issue," he said, "the present record would render the intrusion represented by the present rules constitutionally impermissable."