CITY OF NEW YORK, ET AL., PETITIONERS V. FEDERAL COMMUNICATIONS COMMISSION, ET AL. No. 87-339 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief for the Federal Respondents in Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 4-48) is reported at 814 F.2d 720. The report and order of the Federal Communications Commission (Pet. App. 49-95) is reported at 50 Fed. Reg. 52462. JURISDICTION The judgment of the court of appeals was entered on March 20, 1987, and a petition for rehearing was denied on May 27, 1987 (Pet. App. 1). The petition for a writ of certiorari was filed on August 25, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED In Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), this Court stated that the Communications Act of 1934 authorized the Federal Communications Commission to preempt local regulation of the standards governing cable television signal carriage (see 467 U.S. at 702-704). The question presented is whether Congress eliminated this aspect of the Commission's preemption authority when it enacted the Cable Communications Policy Act of 1984. STATEMENT 1. Cable television systems transmit "a variety of broadcast and nonbroadcast signals obtained from several sources" to subscribers who pay service fees (Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700-701 (1984)). The Federal Communications Commission (FCC) began regulating the operations of cable television systems in the 1960's. The Commission's early regulations were principally directed toward establishing rules for cable systems' carriage of local and distant television broadcast signals. Id. at 701-702; United States v. Southwestern Cable Co., 392 U.S. 157 (1968). The Commission revised its cable television regulatory regime in 1972. Rather than importing into the cable television context the federal licensing system used to regulate the operations of television broadcasters, the Commission adopted a program of "'deliberately structured dualism'" (Capital Cities Cable, Inc., 467 U.S. at 702 (citation omitted)). It allocated to state and local authorities "responsibility for granting franchises to cable operators within their communities and for overseeing such local incidents of cable operations as delineating franchise areas, regulating the construction of cable facilities, and maintaining rights of way" (ibid.). /1/ The Commission retained for itself "exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards." Ibid.; Cable Television Report and Order, 36 F.C.C.2d 143, 170-176, 207-210, on reconsideration, 36 F.C.C.2d 326 (1972), aff'd sub nom. American Civil Liberties Union v. FCC, 523 F.2d 1344 (9th Cir. 1975); see also Cable Television, 46 F.C.C.2d 175, 178 (1974). /2/ In exercising its authority to regulate the technical and operational aspects of cable television systems, the Commission divided cable services into four categories: Class I cable channels, which consist of those channels used to deliver the signals of television broadcast stations; Class II channels, those "used for delivering non-encoded 'cablecast' programming such as Cable News Network, ESPN, and public, educational, and governmental access programming"; Class III channels, those that deliver "encoded cablecast programming such as Home Box Office and other pay channels"; and Class IV channels, those "with two-way transmission capability allowing subscribers to return information to the control point." Pet. App. 8-9; Cable Television Report and Order, 36 F.C.C.2d at 198-199. The Commission prescribed minimum technical standards to govern the signal quality of Class I channels; it did not establish technical standards for the other channel classes. At the time the Commission issued its standards, no State or franchising authority had adopted technical standards of this sort. The Commission found no reason at that time to assert its authority to preempt local regulation in this area; it decided to allow franchising authorities the option of subjecting cable systems to more stringent technical standards. Cable Television Report and Order, 36 F.C.C.2d at 198-201; id. at 359-360 (on reconsideration). Over the next few years, as local franchising authorities began to adopt technical standards, the Commission became concerned that local regulation would undercut federal cable television policy. Accordingly, just two years after the issuance of its technical standards, the Commission instituted a rulemaking proceeding to determine whether to preempt local regulation of technical standards. See Clarification of the Cable Television Rules and Notice of Proposed Rulemaking, 46 F.C.C.2d 175 (1974). After considering the comments filed in response to the notice of proposed rulemaking, the Commission concluded that preemption was warranted. It found that state and local technical standards "cover the entire range of possibilities from highly sophisticated standards developed after full studies of the technical and socio-economic effect of the proposed regulations to clearly unworkable or impossibly excessive demands" (Cable Television, 49 F.C.C.2d 470, 471, 478 (1974)). The Commission stated that these diverse local standards were an obstacle to the achievement of an efficient and innovative communications service. For example, the Commission concluded that nonuniform technical standards could impede the development and marketing of cable system equipment, declaring that "(t)he spectre of having to manufacture specialized equipment based on jurisdictionally imposed technical standards cannot be ignored" (id. at 479). In order to "rationalize, interrelate, and bring into uniformity the myriad standards now being developed by numerous jurisdictions," the Commission barred local jurisdictions from imposing technical standards more strigent that those adopted by the Commission (Cable Television, 49 F.C.C.2d at 480). The Commission made clear that it was only preempting local authority to prescribe technical performance standards -- "quantitative definitions of the electrical or optical characteristics of a signal source, transmission system, or terminating device" (id. at 471). Local franchising authorities retained the ability to specify a cable system's design features, facilities, and equipment (id. at 471-472). This Court affirmed the Commission's preemption authority in sweeping terms in Capital Cities Cable, Inc. v. Crisp, supra. The Court stated that the Commission's "comprehensive" authority to regulate all aspects of interstate communication by wire or radio includes the power to regulate cable television systems, and that this authority "extends to all regulatory actions 'necessary to ensure the achievement of the Commission's statutory responsibilities'" (467 U.S. at 700 (citation omitted)). Thus, "if the FCC has resolved to pre-empt an area of cable television regulation and if this determination 'represents a reasonable accommodation of conflicting policies' that are within the agency's domain, (the Court) must conclude that all conflicting state regulations have been precluded" (ibid. (citation and footnote omitted)). Finding that the Commission had retained "exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards," the Court concluded that a state law regulating commercial advertising was invalid because the statute "interfered with a regulatory area that the Commission has explicitly pre-empted." Id. at 702, 705 (footnote omitted); see also New York State Comm'n v. FCC, 749 F.2d 804 (D.C. Cir. 1984). 2. Against this regulatory background, Congress in 1984 adopted the Cable Communications Policy Act, 47 U.S.C. (Supp. III) 521 et seq. (Cable Act), an amendment to the Communications Act of 1934 designed to "clarif(y) the current system of local, state and Federal regulation of cable television" (H.R. Rep. 98-934, 98th Cong., 2d Sess. 19(1984)). Congress sought to "preserve the critical role of municipal governments in the franchise process," while at the same time "defining and limiting the authority that a franchising authority may exercise through the franchise process" (ibid.). The statute also affirmed the FCC's "exclusive jurisdiction over cable service, over all persons engaged in the provision of cable service, and over the facilities which relate to such service, as provided in" the Cable Act (id. at 95). The statute expressly reserves to local franchising authorities the right to select cable franchisees (47 U.S.C. (Supp. III) 541) and specify the services and types of facilities and equipment that a franchisee must provide (47 U.S.C. (Supp. III) 541(a), 544(b)). At the same time, the statute imposes specific limitations upon the powers of local franchising authorities. See, e.g., 47 U.S.C. (Supp. III) 542 (prohibiting assessment of a franchise fee greater than five percent annually); 47 U.S.C. (Supp. III) 543 (barring regulation of cable rates except where there is no effective competition); 47 U.S.C. (Supp. III) 546 (specifying conditions under which a franchise must be renewed). The provision of the Cable Act directly pertinent to this case is Section 624, 47 U.S.C. (Supp. III) 544, which is entitled "Regulation of services, facilities, and equipment." Section 624(a) states that a franchising authority "may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with this subchapter" (47 U.S.C. (Supp. III) 544(a)). The next subsection authorizes franchising authorities to "establish requirements for facilities and equipment" (47 U.S.C. (Supp. III) 544(b)(1)). That provision's legislative history states that these facility and equipment requirements may include (H.R. Rep. 98-934, supra, at 68) specifications of "channel capacity; system configuration and capacity, including institutional and subscriber networks; headends and hubs; two-way capability; addressability; trunk and feeder cable; and any other facility or equipment requirement, which is related to the establishment and operation of a cable system, including microwave facilities, antennae, satellite earth stations, uplinks, studios and production facilities, vans and cameras for (public, educational, and governmental access) use." Section 624(e) states that the FCC "may establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise" (47 U.S.C. (Supp. III) 544(e)). This provision allows the Commission "to set technical standards related to facilities and equipment required by a franchising authority pursuant to a franchise agreement" (H.R. Rep. 98-934, supra, at 70). It "does not affect the authority of a franchising authority to establish standards regarding facilities and equipment in the franch(i)se pursuant to section 624(b) which are not inconsistent with standards established by the FCC under this subsection" (ibid.). 3. In April 1985, the Commission issued a notice of proposed rulemaking regarding its cable television technical standards. See 50 Fed. Reg. 7801-7804 (1985). The Commission observed that the technical standards "were adopted at a time when the cable industry was little more than a series of master antenna systems for communities. The only competition to the service was over-the-air broadcasting" (id. at 7801). "Since 1972," the Commission stated, "competition has increased from several sources, including video cassette recorders, satellite home earth terminals, and multipoint distribution systems. It therefore seems appropriate to reevaluate the technical requirements at this time" (ibid.). The Commission proposed to delete the technical standards from its rules and regulations and publish them instead as guidelines that local authorities could include in franchise agreements pursuant to 47 U.S.C. (Supp. III) 544 (see 50 Fed. Reg. 7802 (1985)). The Commission observed that it had preempted local jurisdiction in the area of technical requirements in order to "prevent any adverse impact on the growth of cable television because of the imposition of overly burdensome technical requirements at the local level" (ibid.). Because the Commission "continue(d) to believe that this concern is valid and that there should be a national policy in the technical area," it proposed to continue that preemption policy (ibid.). /3/ After considering the comments filed in response to the notice of proposed rulemaking, the Commission adopted a modified version of the proposed rule (Pet. App. 49-95). The Commission concluded that "the primary determinants of the quality of (cable) service that will be provided are the technical state of the art, the underlying economics of the industry, and the market incentives and competitiveness of the markets involved" (id. at 64). It was "persuaded that in the vast majority of situations the severe penalties that will be imposed in the marketplace for those operations that do not perform satisfactorily far exceed and can safely be used to replace FCC penalties that might be imposed through the regulatory process" (id. at 65-66). In light of that circumstance, and of the continuing authority of state and local franchising authorities to enforce federally prescribed technical standards, the Commission concluded that "federally enforced standards are no longer necessary or desirable" (id. at 66). The Commission found it appropriate "to retain technical standards guidelines at the federal level which could be used, but could not be exceeded, in state and local technical quality regulations" (Pet. App. 66-67). The Commission observed that "(t)echnical standards that vary from community to community create potentially serious negative consequences for cable system operators and cable consumers in terms of the cost of service and the ability of the industry to respond to technological changes" (id. at 66). The Commission stated that its long-standing policy of preempting local regulation of technical standards was designed to avoid these adverse effects, and found that "(t)he reasons that caused the adoption of this policy appear to be as valid today as they were when the policy was first adopted" (id. at 68). The Commission explained that "(t)he video products that cable systems sell and the processing and transmission equipment used in the construction of cable systems are overwhelmingly associated with national markets that can be severly burdened by disparate and conflicting local regulations and standards" (Pet. App. 69). The cost to equipment suppliers of "keeping track of and complying with numerous different requirements is undeniably significant and there appear to be few if any countervailing benefits associated with such disparate requirements" (ibid.). /4/ The Commission further found that disparate local technical standards might well deter technological innovation. The Commission stated that "(t)he obstacles that would be created to such innovation were it necessary to win the approval of numerous franchise authorities before use was possible would be most formidable, even if local authorities were equipped to respond to the sophisticated technical issues involved" (Pet. App. 71). The Commission illustrated the potential problems by discussing the development of "baseband" cable converters (id. at 70-71). The Commission further concluded that its preemption authority had not been altered by the Cable Communications Policy Act. The Commission observed that its policy is "wholly consistent with the Cable Act's intent to establish a national policy that encourages the growth and development of cable television services" (Pet. App. 73 (footnote omitted)). Citing Section 624(e), which expressly empowers the Commission to issue technical standards, the Commission stated that the Act "appears to specifically anticipate the continuation of our existing policy" (Pet. App. 72). And the Commission found "nothing in the legislative history that suggests Congress did not approve of the existing policy or that it intended to limit our ability to continue it" (id. at 72-73 (footnote omitted)). /5/ 4. The court of appeals upheld the Commission's order in part and vacated the order in part by a divided vote (Pet. App. 4-48). The court first considered the Commission's authority to preempt state and local regulation of technical standards. It observed that "'(t)he critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law'" (id. at 17, quoting Louisiana Public Service Comm'n v. FCC, No. 84-871 (May 27, 1986), slip op. 13). "since Congress legislated against the backdrop of the Commission's preexisting preemption regulation without criticizing that regulation," the court said, "we infer that Congress endorsed it, except where the Cable Act explicitly or implicitly modified its provisions" (Pet. App. 19-20). The court of appeals looked at 47 U.S.C. (Supp. III) 544 to determine whether Congress intended to modify prior law. It observed that Congress authorized local franchising authorities to "establish requirements for facilities and equipment" to be provided by the cable operator (47 U.S.C. (Supp. III) 544(b)(1)), but at the same time "clearly limit(ed) a franchisor's freedom of action" (Pet. App. 21) by stating that "any franchising autority may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with" the statute (47 U.S.C. (Supp. III) 544(a)). The court stated that Section 624(e), 47 U.S.C. (Supp. III) 544(e), which authorizes the FCC to establish technical standards relating to facilities and equipment, "indicates (that) the authority to curtail (the franchisor's) freedom of action was delegated to the FCC, at least insofar as the FCC's 'technical standards' overlap the franchisors' specifications of certain 'services, facilities and equipment'" (Pet. App. 21). The court observed that the provision's legislative history supported its interpretation of the statutory language. The court quoted the passage of the House report stating that the delegation of authority to the Commission "'does not affect the authority of a franchising authority to establish standards regarding facilities and equipment . . . which are not inconsistent with standards established by the FCC under this subsection'" (Pet. App. 21-22 (citation omitted; emphasis added by the court of appeals)). It concluded that the phrase "not inconsistent with" authorized the preemption of any technical standard that exceeds a standard established by the FCC. The court rejected petitioners' argument that the statute permits franchising authorities to subject a franchisee to technical standards more onerous than the FCC's standards (id. at 25-26). Because the Commission's preemption decision as to Class I channels thus fell within its statutory authority, the court upheld the Commission's determination. /6/ The court reached a different conclusion with respect to the Commission's decision to bar franchising authorities from setting technical standards for Class II, III, and IV channels, while forbearing from setting technical standards itself. The court noted that the provision of the Cable Act governing the renewal of cable television franchises authorizes a franchising authority to consider signal quality in deciding whether to renew the franchise (see 47 U.S.C. (Supp. III) 546(c)(1)(B)). It stated that the Commission's refusal to adopt technical standards for Classes II, III, and IV, combined with its policy of forbidding franchising authorities from adopting such standards, "seems to put franchisors in a 'Catch-22' position": a franchising authority can only evaluate a cable operator's signal quality by reference to objective technical standards, but no such standards have been adopted by the FCC and standards may not be adopted by the franchising authority itself (Pet. App. 32). The court concluded that the Commission "had an obligation explicitly to consider the interrelationship between (the statutory provision governing technical standards (Section 624) and the provision governing franchise renewals (Section 626)). That it chose not to makes its rulemaking here defective" (id. at 34-35). The court directed the Commission to address the issue on remand. Judge Mikva dissented from the portion of the court's opinion upholding the Commission's authority to preempt local regulation of technical standards for Class I cable channels (Pet. App. 35-48). He concluded that the statute allows local franchising authorities to impose technical standards more stringent than the standards adopted by the Commission. ARGUMENT The petition for a writ of certiorari should be denied for two independent reasons. First, wholly apart from the merits, petitioners' attempt to obtain review in this Court is premature. The practical importance of the issue raised in the petition is dependent to a significant extent upon the outcome of the portion of the case that the court of appeals remanded to the Commission. This Court should therefore stay its hand pending further honing of the issues in this case in the remand proceedings. Second, the decision of the court below involves nothing more than the application of settled legal principles to a particular set of statutory provisions. Petitioners do not quarrel with the legal principles applied by the court of appeals, which were clarified in a unanimous opinion of this Court dealing with the Commission's regulation of the very subject matter at issue here. The only dispute is whether the court was correct in its interpretation of the relevant provisions of the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984. That narrow question -- relevant only to the particular exercise of preemption authority at issue here -- does not present an issue warranting this Court's attention at this time. 1. In adopting technical standards for cable television systems, the Commission differentiated between Class I cable channels -- those channels that carry television broadcast signals -- and all other cable channels. The Commission prescribed substantive standards that apply only to Class I channels and precluded any local regulation more onerous than those federal standards. With respect to the other classes of channels, the Commission precluded local regulation without adopting substantive federal standards. See page 3, supra. The court of appeals also distinguished between Class I channels and other cable channels. The court upheld the Commission's preemption authority with respect to local standards applicable to Class I channels. It remanded the portion of the Commission's order that barred local regulation of technical standards for Class II, III and IV channels, directing the Commission to reconsider its determination in light of certain provisions of the Cable Communications Policy Act. See pages 10-12, supra. Although the Commission and the court of appeals have thus far distinguished in the foregoing ways between technical standards applicable to Class I channels and those governing transmissions over other classes of cable channels, there is, in fact, a significant link between the quality of transmissions for the different classes of channels. A technical standard applicable to one class of cable channels will force the cable operator to select equipment that produces a transmission that satisfies that standard. And, because all cable transmissions are carried over essentially the same equipment, transmissions on the other classes of channels will be affected and are likely to achieve the same level of quality. As a practical matter, therefore, a technical standard applicable to one class of channels is likely to control the quality of transmissions on all other channels. /7/ The purpose of the remand proceeding ordered by the court of appeals is to permit the Commission to reexamine its decision to preempt local regulation of technical standards for transmissions on Class II, III, and IV channels without prescribing substantive federal standards to govern those transmissions. The outcome of the FCC proceeding and any judicial review, is, of course, uncertain at this time. If the matter were resolved by permitting franchising authorities to prescribe technical standards for Class II, III, and IV channels, or by adopting different federal standards for these classes of channels, those standards would effectively apply to Class I channels as well. Thus, the outcome of the remand proceedings may affect the practical importance of the question presented in the petition for a writ of certiorari, and would enable the case to be presented to this Court in a more comprehensive manner. The Court should therefore decline to review the court of appeals' decision at this time. Petitioners will be free to raise the issue presented in the petition, together with any claims arising out of the remand proceedings, after the completion of those proceedings. 2. Moreover, the court of appeals properly applied settled legal principles in upholding the Commission's preemption authority. This Court recently observed that "(t)he critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law" (Louisiana Public Service Comm'n v. FCC, No. 84-871 (May 27, 1986), slip op. 13). The sole question here, therefore, is one of federal statutory interpretation. Prior to the adoption of the Cable Communications Policy Act of 1984, Congress's intent to endow the Commission with preemption authority was clear. See Capital Cities Cable, Inc., 467 U.S. at 702-704. That authority rested upon Section 2(a) of the Communications Act of 1934, 47 U.S.C. 152(a), which grants the FCC broad regulatory power over interstate communications by wire and radio (see 467 U.S. at 699-700, 702-704). Congress indicated in the Cable Act that it did not intend to eliminate the Commission's pre-existing authority to regulate cable television. Congress added a sentence to Section 2(a) stating that the provisions of the 1934 Act "shall apply with respect to cable service, * * * as provided in" the statutory provisions added by the Cable Act (47 U.S.C. (Supp. III) 152(a)). Congress explained that this language was designed to "grant() the FCC exclusive jurisdiction over cable service, * * * as provided in" the Cable Act (H.R. Rep. 98-934, 98th Cong., 2d Sess. 95 (1984)). Thus, Congress reaffirmed the FCC's broad authority over cable systems, subject to the limitations prescribed by the Cable Act. As the court of appeals observed, Congress was well aware of the Commission's preemption authority when it adopted the 1984 statute. "Since Congress legislated against the backdrop of the Commission's preexisting preemption regulation without criticizing that regulation, we infer that Congress endorsed it, except where the Cable Act explicitly or implicitly modified its provisions" (Pet. App. 19-20). Moreover, the manner in which Congress crafted the substantive provisions of the Cable Communications Policy Act strongly confirms that Congress intended the Commission to retain broad authority to regulate cable systems. A variety of statutory provisions expressly bar the Commission from adopting certain types of regulations, even though the Cable Act itself does not expressly grant the Commission the specific affirmative authority to take those actions. See 47 U.S.C. (Supp. III) 542(i), 543(a), 544(f)(1). The logical explanation for these prohibitions is that Congress intended that, absent a specific statutory limitation upon the Commission's authority in the Cable Act, the Commission would retain the same broad authority that it possessed prior to the adoption of that Act. Congress added these express limitations upon the Commission's powers in the circumstances in which it wanted to prevent the Commission from exercising that broad authority in a particular manner. The appropriate inquiry in this particular statutory setting, accordingly, is whether the statute indicates that Congress intended to eliminate the Commission's previously established authority to preempt local regulation of technical standards. There simply is no evidence that Congress intended to reduce the Commission's authority in this manner. Indeed, the statute adopts the division of authority devised by the Commission in its own regulations (see page 4, supra). Franchising authorities may "establish requirements for facilities and equipment" (47 U.S.C. Supp. III) 544(b)(1)), prescribing the specifics of the configuration of the cable system such as the number of channels to be provided by the cable operator (see page 6, supra). The Commission may set "technical standards" (47 U.S.C. (Supp. III) 544(e)), prescribing the level of transmission quality and other performance standards that cable systems may then be required to satisfy. The legislative history states that the franchising authority's facility and equipment requirements must be "not inconsistent" with the Commission's technical standards (H.R. Rep. 98-934, supra at 70). Viewed against the background of the prior regulatory scheme, this language is properly interpreted as a reaffirmation of the Commission's authority to give preemptive effect to the technical standards it issues. Because Congress adopted the Commission's approach with respect to regulation of technical standards in other respects, it undoubtedly would have called attention to any change from prior law. The absence of any express reference to a change in the status quo thus weighs strongly in favor of upholding the Commission's preemption authority. /8/ In addition to the unusually illuminating background against which Congress was legislating, several additional factors confirm that Section 624 should be read to authorize the Commission to preempt local regulation of technical standards. The provision makes clear that the regulatory powers of local franchising authorities are limited by the federal statute (see 47 U.S.C. (Supp. III) 544(a)). The statute then distinguishes between equipment and facility specifications, which are the province of the franchising authority, and technical performance standards, which are the province of the Commission. This express division of authority makes clear that the basic responsibility for setting technical standards rests with the Commission. See H.R. Rep. 98-934, supra, at 70 (Commission empowered to "set technical standards related to facilities and equipment required by a franchising authority pursuant to a franchise agreement"). The statute's legislative history addresses the situation in which a franchising authority's equipment and facility specifications overlap with the Commission's technical standards. It states that the authority's specifications may not be "inconsistent" with the Commission's standards. We submit, as the court of appeals held, that the fair reading of this legislative history, in the entire statutory context, is that the franchising authority cannot subject a cable operator to an obligation different from that prescribed by the FCC if the Commission concludes, as it has here, that preemption of such additional technical requirements is necessary to achievement of the federal statutory purposes. /9/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General DIANE S. KILLORY General Counsel DANIEL M. ARMSTRONG Associate General Counsel GREGORY M. CHRISTOPHER Counsel Federal Communications Commission NOVEMBER 1987 /1/ The Commission set minimum standards for the franchisee selection process, construction deadlines, duration of franchises, subscriber rates, and the handling of subscriber complaints. Cable Television Report and Order, 36 F.C.C.2d 143, 207-209, on reconsideration, 36 F.C.C.2d 326 (1972), aff'd sub nom. American Civil Liberties Union v. FCC, 523 F.2d 1344 (9th Cir. 1975). These minimum standards were subsequently eliminated. Applications for Certificates of Compliance, 66 F.C.C.2d 380, 391 (1977), on reconsideration, 71 F.C.C.2d 569 (1979), aff'd sub nom. Brown v. FCC, 615 F.2d 1368 (D.C. Cir. 1980) (Table). /2/ The Commission characterized this dual regulatory scheme as an accommodation of its responsibility "to assure the orderly development of this new technology into the national communications structure" with the local interest in regulating the use of community streets and rights of way. See Duplicative and Excessive Over-Regulation of Cable Television, 54 F.C.C.2d 855, 861, 863 (1975). /3/ The notice of proposed rulemaking also requested comments regarding a proposal to alter the rules governing signal leakage from cable systems (see 50 Fed. Reg. 7802-7803 (1985)). The Commission took no action on this proposal, deciding that the matter required further study (Pet. App. 79-80). /4/ The Commission noted that cable systems operate in more than 18,500 communities (Pet. App. 69). /5/ The Commission noted that a number of commenters had suggested changes in the technical standards. It concluded that several adjustments were appropriate (Pet. App. 76-79). /6/ The court observed that it is not clear whether deference to an agency's interpretation of its governing statute is appropriate in assessing the scope of the agency's preemption authority. The court found no need to resolve that question, however, because its construction of the statute was not based upon deference to the Commission's interpretation of Section 624. Pet. App. 23-25. /7/ The Commission attempted to defend its decision on this ground in the court of appeals, but the court concluded that it could not consider the argument because the rationale was not reflected in the Commission's decision (Pet. App. 27-28 n.8). That ruling, of course, does not preclude the Commission from considering this technical interrelationship on remand. /8/ Petitioners suggest (Pet. 29) that the court of appeals upheld the Commission's preemption authority even though it found only an ambiguous congressional delegation of preemption authority. In fact, the court of appeals concluded that Congress had not disturbed its prior broad delegation of preemption authority to the Commission and, turning to the specific preemption question in this case, it found no basis for ascribing to Congress the intent to bar the Commission from preempting local technical standards. The court instead found that Section 624 and its legislative history indicated that Congress intended to reaffirm that authority. See Pet. App. 19-22, 25-26. Similarly, petitioners err in suggesting (Pet. 36-38) that the court of appeals "presume(d)" that Congress reaffirmed the Commission's prior preemption authority. After considering the text of the statute and its legislative history, the court correctly concluded that Congress did not intend to eliminate the Commission's pre-existing authority to regulate cable systems. Pet. App. 19-22. Petitioners rely (Pet. 30) on New York State Dep't of Social Services v. Dublino, 413 U.S. 405 (1973), but Dublino actually confirms the propriety of the decision below. This Court in Dublino declined to find that the social security statute preempted state laws requiring individuals to accept employment as a condition of federal aid because (1) preemption would impair the ability of the state to deal effectively with critical welfare problems (413 U.S. at 413); (2) 21 States had already adopted welfare rules when the federal statute was enacted, and if Congress had wanted to preempt those programs it would have said so unambiguously (id. at 414); (3) the agency responsible for administering the federal regulations had never considered the federal program to be preemptive (id. at 420); and (4) the state program was complementary and harmonious with the federal program (id. at 421). In this case, by contrast, (1) federal technical standards guarantee acceptable quality thus rendering more demanding local regulation unnecessary (Pet. App. 54-55 n.2); (2) local technical regulation was preempted at the time the Cable Act was passed, and upholding the Commission's preemption authority thus will not nullify established local regulatory programs; (3) the FCC has long held its technical standards to be preemptive; and (4) local technical regulation would conflict significantly with federal goals of cable television regulation (id. at 66-72). /9/ Petitioners cite (Pet. 32-34) several instances in which Congress authorized franchising authorities to impose regulations "consistent" with a standard spelled out in the Cable Communications Policy Act and note that the legislative history in each instance expressly states that more stringent local regulation is a permissible option. But the legislative history of Section 624 contains no similarly narrow express definition of "inconsistent." Petitioners also complain (Pet. 31-35) that the court of appeals made no attempt to avoid preemption by reconciling the state and federal regulatory programs. Such a reconciliation was clearly impossible here because the very essence of the federal policy is to avoid the multiplicity of technical standards that would result from permitting franchising authorities to prescribe technical standards. Preemption of local standards more stringent that the federal standards is the only means by which the federal objectives may be achieved. See Pet. App. 66-75; pages 8-9, supra.