486 U.S.

57
108 S.Ct. 1637
100 L.Ed.2d 48

CITY OF NEW YORK, City of Miami, City of Wheaton and

National League of Cities, Petitioners
v.
FEDERAL COMMUNICATIONS COMMISSION et al.
No. 87-339.
Argued March 29, 1988.
Decided May 16, 1988.

Syllabus
In 1974, after two years of unsatisfactory experience with conflicting
federal and local technical standards governing the transmission of cable
television broadcast signals, the Federal Communications Commission
(FCC or Commission) promulgated regulations pre-empting the field of
signal-quality regulation. In 1984, this Court broadly approved the preemptive authority that the FCC had asserted over cable system regulation.
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81
L.Ed.2d 580. A few months later, Congress enacted the Cable
Communications Policy Act of 1984 (Cable Act or Act), which empowers
state or local authorities to enfranchise cable systems and to specify the
facilities and equipment that franchisees could use, but which also
authorizes the FCC to establish technical standards for such facilities and
equipment. Pursuant to the latter provision, the FCC adopted regulations
establishing technical standards governing the quality of cable signals and
forbidding local authorities to impose more stringent technical standards.
Petitioners sought review of the regulations in the Court of Appeals,
contesting the scope of the FCC's claimed pre-emptive authority and
asserting that franchising authorities could impose stricter technical
standards than the Commission's. The court upheld the regulations.
Held: The FCC did not exceed its statutory authority by forbidding local
authorities to impose technical cable signal quality standards more
stringent than those set forth in the Commission's regulations. Pp. 63-70.

(a) Whether a federal agency has properly determined that its authority in
a given area is exclusive and pre-empts any state regulatory efforts does
not depend on the existence of express congressional authorization to
displace state law. Rather, the correct focus is on the agency itself and on
the proper bounds of its lawful authority to undertake such action. If the
agency's decision to pre-empt represents a reasonable accommodation of
conflicting policies committed to the agency's care by statute, the
accommodation should not be disturbed unless it appears from the statute
or its legislative history that the accommodation "is not one that Congress
would have sanctioned." United States v. Shimer, 367 U.S. 374, 383, 81
S.Ct. 1554, 1560, 6 L.Ed.2d 908. Pp. 63-64.
(b) In adopting the regulations at issue, the FCC explicitly stated its intent
to continue its prior policy of exercising exclusive authority and of preempting state and local regulation, in order to address the potentially
serious adaptability and cost problems created for cable system operators
and consumers by technical standards that vary from community to
community. Thus, this case does not turn on whether there is an actual
conflict between federal and state law, or whether compliance with both
federal and state standards would be physically impossible. Pp. 65-66.
(c) The FCC acted within its authority under the Cable Act when it preempted state and local regulation. In adopting the statute, Congress acted
against a 10-year background of federal pre-emption on this particular
issue and at a time shortly after Crisp approved FCC pre-emption in very
similar respects. Nevertheless, Congress sanctioned in relevant respects
the regulatory scheme that the Commission had already been following,
without indicating explicit disapproval of the Commission's pre-emption
of local technical standards. Given the difficulties the FCC had
experienced with inconsistent local standards, it is doubtful that Congress
would have meant to overturn pre-emption without discussion or even any
suggestion that it was doing so. To the contrary, the legislative history
makes clear that the Cable Act was not intended to work any significant
change. Thus, nothing in the Act compels the conclusion that the decision
to pre-empt "is not one that Congress would have sanctioned." Pp. 66-70.
259 U.S.App.D.C. 191, 814 F.2d 720 (1987), affirmed.
WHITE, J., delivered the opinion for a unanimous Court.
Stephen J. McGrath, New York City, for petitioners.
Lawrence G. Wallace, Washington, D.C., for federal respondent, F.C.C.

H. Bartow Farr, III, Washington, D.C., for respondent, National Cable

Television.
Justice WHITE delivered the opinion of the Court.

The Federal Communications Commission has adopted regulations that

establish technical standards to govern the quality of cable television signals
and that prohibit local authorities from imposing more stringent technical
standards. The issue is whether in doing so the Commission has exceeded its
statutory authority.

* This case deals with yet another development in the ongoing efforts of
federal, state, and local authorities to regulate different aspects of cable
television over the past three decades. See Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691, 700-705, 104 S.Ct. 2694, 2700-2703, 81 L.Ed.2d 580 (1984);
United States v. Southwestern Cable Co., 392 U.S. 157, 161-178, 88 S.Ct.
1994, 1996-2005, 20 L.Ed.2d 1001 (1968). With the incipient development of
cable television in the 1950's and 1960's from what had been more generally
known as community antenna television systems, the Federal Communications
Commission began to assert regulatory authority in this area. See CATV Second
Report and Order, 2 F.C.C.2d 725 (1966). In 1972, the Commission first
asserted authority over technical aspects of cable television and devised
technical standards to govern the transmission of broadcast signals by cable,
though without pre-empting regulation of similar matters by state or local
franchising authorities. Cable Television Report and Order, 36 F.C.C.2d 143,
on reconsideration, 36 F.C.C.2d 326 (1972), aff'd sub nom. American Civil
Liberties Union v. FCC, 523 F.2d 1344 (CA9 1975).1 Within two years,
however, the Commission became convinced from its experience with
conflicting federal and local technical standards that there is "a compelling need
for national uniformity in cable television technical standards" which would
require it to pre-empt the field of signal-quality regulation in order to meet the
"necessity to rationalize, interrelate, and bring into uniformity the myriad
standards now being developed by numerous jurisdictions." Cable Television
Report and Order, 49 F.C.C.2d 470, 477, 480 (1974). The Commission
explained that a multiplicity of mandatory and nonuniform technical
requirements undermined "the ultimate workability of the over-all system,"
could have "a deleterious effect on the development of new cable services," and
could "seriously imped[e]" the "development and marketing of signal source,
transmission, and terminal equipment." Id. at 478-479.2

In 1984, the Court approved the pre-emptive authority that the Commission

had asserted over the regulation of cable television systems. We held that in the
Communications Act of 1934, Congress authorized the Commission "to
regulate all aspects of interstate communication by wire or radio," including the
subsequently developed medium of cable television, and that the Commission's
authority "extends to all regulatory actions 'necessary to ensure the achievement
of the Commission's statutory responsibilities.' " Crisp, supra, 467 U.S. at 700,
104 S.Ct. at 2701, quoting FCC v. Midwest Video Corp., 440 U.S. 689, 706, 99
S.Ct. 1435, 1444, 59 L.Ed.2d 692 (1979). Although the state law that was
invalidated in Crisp regulated commercial advertising on cable television,
rather than the technical quality of cable television signals, the Court
recognized that for 10 years the Commission had "retained exclusive
jurisdiction over all operational aspects of cable communication, including
signal carriage and technical standards." Crisp, supra, 467 U.S. at 702, 104
S.Ct. at 2702.
4

A few months after the Court's decision in Crisp, Congress enacted the Cable
Communications Policy Act of 1984 (Cable Act or Act), 98 Stat. 2780, 47
U.S.C. 521-559 (1982 ed., Supp. IV). Among its objectives in passing the
Cable Act, Congress purported to "establish a national policy concerning cable
communications" and to "minimize unnecessary regulation that would impose
an undue economic burden on cable systems." 47 U.S.C. 521(1), (6) (1982
ed., Supp. IV). The Act was also intended to "establish guidelines for the
exercise of Federal, State, and local authority with respect to the regulation of
cable systems" through procedures and standards that "encourage the growth
and development of cable systems and which assure that cable systems are
responsive to the needs and interests of the local community." 521(3), (2)
(1982 ed., Supp. IV).

The Cable Act left franchising to state or local authorities; those authorities
were also empowered to specify the facilities and equipment that franchisees
were to use, provided such requirements were "consistent with this title." Cable
Act, 624(a), (b), 47 U.S.C. 544(a), (b) (1982 ed., Supp. IV). Section
624(e) of the Cable Act provided that "[t]he Commission 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. 544(e)
(1982 ed., Supp. IV).

In 1985, the Commission promulgated regulations that would establish

technical standards governing signal quality for one of four different classes of
cable television channels and that would forbid local cable franchising
authorities to impose their own standards on any of the four classes of channels.
50 Fed.Reg. 7801, 7802 (1985), 47 CFR pt. 76 (1986). The Commission

eventually adopted a modified version of these regulations, which reaffirmed

the Commission's established policy of pre-empting local regulation of
technical signal quality standards for cable television. 50 Fed.Reg., at 52462,
52464-52465. The Commission found its statutory authority to adopt the
regulations in 624(e) of the Cable Act, 47 U.S.C. 544(e) (1982 ed., Supp.
IV), and in 47 U.S.C. 154(i) and 303(r). 50 Fed.Reg., at 52466. Petitioners
(the cities of New York, Miami, and Wheaton, and the National League of
Cities) sought review of the regulations in federal court, where they contested
the scope of the pre-emptive authority claimed by the Commission and insisted
that franchising authorities could impose stricter technical standards than those
specified by the Commission.
7

The Court of Appeals granted partial relief to petitioners. 259 U.S.App.D.C.

191, 814 F.2d 720 (1987). It noted that the Commission had adopted technical
standards applicable to one class of cable television channels, but had left the
other three classes of channels completely unregulated. It agreed with
petitioners that the Commission had acted arbitrarily and capriciously when it
did not adopt technical standards for the latter three classes of channels, yet
prohibited local authorities from adopting such standards and ignored the
apparent conflict between these actions and the language of the Cable Act. It
therefore vacated this part of the rule and remanded to the Commission for
further proceedings. The court's holding was unanimous on this point, and that
part of its decision is not at issue here.3

The Court of Appeals divided, however, over the propriety of the Commission's
technical standards that apply to the first class of cable channels and that preempt more stringent local regulations. The majority of the panel upheld preemption, ruling that Congress intended federal regulations like these to
supersede local law and that the Commission acted within the broad confines of
the pre-emptive authority delegated to it by Congress when it adopted the
regulations with respect to this one class of channels. One judge dissented,
contending that the majority had sanctioned pre-emption without a clear
manifestation of congressional intent, contrary to this Court's decisions. We
granted certiorari, 484 U.S. 962, 108 S.Ct. 449, 98 L.Ed.2d 389 (1987), and we
now affirm.

II
9

When the Federal Government acts within the authority it possesses under the
Constitution, it is empowered to pre-empt state laws to the extent it is believed
that such action is necessary to achieve its purposes. The Supremacy Clause of
the Constitution gives force to federal action of this kind by stating that "the

Laws of the United States which shall be made in Pursuance" of the

Constitution "shall be the supreme Law of the Land." U.S. Const., Art. VI, cl. 2.
The phrase "Laws of the United States" encompasses both federal statutes
themselves and federal regulations that are properly adopted in accordance with
statutory authorization. For this reason, at the same time that our decisions have
established a number of ways in which Congress can be understood to have preempted state law, see Louisiana Public Service Comm'n v. FCC, 476 U.S. 355,
368-369, 106 S.Ct. 1890, 1898-1899, 90 L.Ed.2d 369 (1986), we have also
recognized that "a federal agency acting within the scope of its congressionally
delegated authority may pre-empt state regulation" and hence render
unenforceable state or local laws that are otherwise not inconsistent with federal
law. Id., at 369, 106 S.Ct. at 1898-1999.
10

III
A.

This case involves the latter kind of pre-emption, and here the inquiry becomes
whether the federal agency has properly exercised its own delegated authority
rather than simply whether Congress has properly exercised the legislative
power. Thus we have emphasized that in a situation where state law is claimed
to be pre-empted by federal regulation, a "narrow focus on Congress' intent to
supersede state law [is] misdirected," for "[a] pre-emptive regulation's force
does not depend on express congressional authorization to displace state law."
Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 154, 102
S.Ct. 3014, 3023, 73 L.Ed.2d 664 (1982). Instead, the correct focus is on the
federal agency that seeks to displace state law and on the proper bounds of its
lawful authority to undertake such action. The statutorily authorized regulations
of an agency will pre-empt any state or local law that conflicts with such
regulations or frustrates the purposes thereof. Beyond that, however, in proper
circumstances the agency may determine that its authority is exclusive and preempts any state efforts to regulate in the forbidden area. Crisp, 467 U.S., at 700,
104 S.Ct. at 2700; De la Cuesta, supra, 458 U.S., at 152-154, 102 S.Ct., at
3022-3023. It has long been recognized that many of the responsibilities
conferred on federal agencies involve a broad grant of authority to reconcile
conflicting policies. Where this is true, the Court has cautioned that even in the
area of pre-emption, if the agency's choice to pre-empt "represents a reasonable
accommodation of conflicting policies that were committed to the agency's care
by the statute, we should not disturb it unless it appears from the statute or its
legislative history that the accommodation is not one that Congress would have
sanctioned." United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6
L.Ed.2d 908 (1961); see also Crisp, supra, 467 U.S., at 700, 104 S.Ct., at 2700.

11

In this case, there is no room for doubting that the Commission intended to preempt state technical standards governing the quality of cable television signals.
In adopting the regulations at issue here, the Commission said:

12

"Technical 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. To address this problem, we proposed in the
Notice 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.

13

*****

14

"After a review of the record in this proceeding, we continue to believe that the
policy adopted in 1974 was effective, should remain in force, and is entirely
consistent with both the specific provisions and the general policy objectives
underlying the 1984 Cable Act. This pre-emption policy has constrained state
and local regulation of cable technical performance to Class I channels and has
prohibited performance standards more restrictive than those contained in the
Commission's rules. The reasons that caused the adoption of this policy appear
to be as valid today as they were when the policy was first adopted." 50
Fed.Reg., at 52464.

15

As noted above, the policy adopted by the Commission in 1974, which was
continued in effect by the 1985 regulations, was a pre-emptive policy applying
in the area of technical standards governing signal quality. 49 F.C.C.2d, at 477481. Since the Commission has explicitly stated its intent to exercise exclusive
authority in this area and to pre-empt state and local regulation, this case does
not turn on whether there is an actual conflict between federal and state law
here, or whether compliance with both federal and state standards would be
physically impossible. De la Cuesta, supra, 458 U.S., at 153, 102 S.Ct., at
3022.

B
16

The second part of the inquiry is whether the Commission is legally authorized
to pre-empt state and local regulation that would establish complementary or
additional technical standards, where it clearly is possible for a cable operator
to comply with these standards in addition to the federal standards. We have
identified at least two reasons why this part of the inquiry is crucial to our

determination of the pre-emption issue. "First, an agency literally has no power

to act, let alone pre-empt the validly enacted legislation of a sovereign State,
unless and until Congress confers power upon it. Second, the best way of
determining whether Congress intended the regulations of an administrative
agency to displace state law is to examine the nature and scope of the authority
granted by Congress to the agency." Louisiana Public Service Comm'n, 476
U.S., at 374, 106 S.Ct., at 1901. The second reason was particularly relevant in
Louisiana Public Service Comm'n because there we were obliged to assess the
import of a statutory section in which Congress appeared to have explicitly
limited the Commission's jurisdiction, so as to prohibit it from pre-empting
state laws concerning the manner in which telephone companies could
depreciate certain plant and equipment. Id., 476 U.S., at 369-376, 379, 106
S.Ct., at 1899-1902, 1904, construing 47 U.S.C. 152(b).
17

We conclude here that the Commission acted within the statutory authority
conferred by Congress when it pre-empted state and local technical standards
governing the quality of cable television signals. When Congress enacted the
Cable Act in 1984, it acted against a background of federal pre-emption on this
particular issue. For the preceding 10 years, the Commission had pre-empted
such state and local technical standards under its broad delegation of authority
to "[m]ake such rules and regulations and prescribe such restrictions and
conditions, not inconsistent with law, as may be necessary to carry out the
provisions of this chapter [the communications laws, Title 47 of the U.S. Code,
Chapter 5]," as a means of implementing its legitimate discretionary power to
determine what the "public convenience, interest, or necessity requires" in this
field. 47 U.S.C. 303 and 303(r); see also 49 F.C.C.2d, at 481; 47 U.S.C.
154(i). The Court's decision in Crisp, which was handed down during the time
Congress was considering the legislation that within a few months became the
Cable Act, broadly upheld the Commission's pre-emptive authority in very
similar respects. 467 U.S., at 701-705, 104 S.Ct., at 2701-2703.

18

In the Cable Act, Congress sanctioned in relevant respects the regulatory

scheme that the Commission had been following since 1974. In 624 of the
Cable Act, Congress specified that the local franchising authority could
regulate "services, facilities, and equipment" in certain respects, and could
enforce those requirements, but 624(e) of the Act grants the Commission the
power to "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. 544(a)-(e) (1982 ed., Supp. IV). This mirrors the state of the
regulatory law before the Cable Act was passed, which permitted the local
franchising authorities to regulate many aspects of cable services, facilities, and
equipment but not to impose technical standards governing cable signal quality,

since the Commission had explicitly reserved this power to the Federal
Government.
19

It is also quite significant that nothing in the Cable Act or its legislative history
indicates that Congress explicitly disapproved of the Commission's pre-emption
of local technical standards.4 Given the difficulties the Commission had
experienced in this area, which had caused it to reverse its ground in 1974 after
two years of unhappy experience with the practical consequences of
inconsistent technical standards imposed by various localities, we doubt that
Congress intended to overturn the Commission's decade-old policy without
discussion or even any suggestion that it was doing so. To the contrary, the
House Report which discusses this section of the Act portrays it as nothing
more than a straightforward endorsement of current law:

20

"Subsection (e) allows the Commission to set technical standards related to

facilities and equipment required by a franchising authority pursuant to a
franchising agreement. This provision does not affect the authority of a
franchising authority to establish standards regarding facilities and equipment
in the franchise pursuant to section 624(b) which are not inconsistent with
standards established by the FCC under this subsection." H.R.Rep. No. 98-934,
p. 70 (1984), U.S.Code Cong. & Admin.News, 1984, pp. 4655, 4707.

21

This passage from the House Report makes clear that the Act was not intended
to work any significant change in the law in the respects relevant to this case.
By noting that 624(e) authorizes "the Commission to set technical standards
related to facilities and equipment" and that it "does not affect the authority of a
franchising authority to establish standards regarding facilities and equipment"
that are not inconsistent with Commission standards, the House Report
indicates both that Congress did not intend to remove from the Commission its
longstanding power to establish pre-emptive technical standards, and that
Congress did not intend to "affect the authority of a franchising authority" to set
standards in these and similar matters regarding cable facilities and equipment.
In particular, Congress did not manifest any intent to "affect the authority" of
local franchising authorities by giving them the power to supplement the
technical standards set by the Commission with respect to the quality of cable
signals, a power which they generally had not been permitted to exercise for the
last 10 years and which, according to the Commission's consistent view,
disserves the public interest.5 Petitioners insist that under 624, as evidenced
by the passage from the House Report quoted above, a franchising authority
may specify any technical standards that do not conflict with Commission
standards and hence may set stricter standards for signal quality. But this
disregards the Commission's own power to pre-empt, an authority that we do

not believe Congress intended to take away in the Cable Act. And it also
disregards the Commission's explicit findings, based on considerable
experience in this area, that complementary or additional technical standards set
by state and local authorities do conflict with the basic objectives of federal
policy with respect to cable televisionfindings that the Commission first
articulated in 1974 and then reiterated in 1986. See 49 F.C.C.2d, at 478-479; 50
Fed.Reg., at 52464-52465.
22

In sum, we find nothing in the Cable Act which leads us to believe that the
Commission's decision to pre-empt local technical standards governing the
quality of cable signals "is not one that Congress would have sanctioned."
Shimer, 367 U.S., at 383, 81 S.Ct. at 1560. 6 We therefore affirm the judgment
of the Court of Appeals.

23

It is so ordered.

The "technical standards" established by the Commission describe, in

quantitative terms, various electrical characteristics of the audio and video
components of the signals delivered by the cable system to its subscribers,
including such specific items as visual carrier frequency, aural center
frequency, visual signal level, terminal isolation, and radiation and signal
leakage. See 47 CFR 76.601, 76.605 (1987).

Although the Commission recognized that "[t]he broad pre-emptive policy we

are adopting today will ultimately affect all cable systems," 49 F.C.C.2d, at
480, it fashioned this policy to have a more gradual effect. Because "many of
the pre-existing technical standards adopted by cities and states cannot be
shown to adversely affect our stated goals," the Commission decided to extend
a "grandfather" approval to those technical standards that were already
operational or certified to the Commission by January 1, 1975. Ibid. In addition,
a mechanism was established (and remains in effect) that allows state and local
authorities to impose "different or additional technical standards" if they obtain
a specific waiver from the Commission. Id., at 480-481; see n. 5, infra.

At argument, petitioners contended that the question of the Commission's

statutory authority to regulate these other three classes of cable channels is
properly presented to the Court in this case. Tr. of Oral Arg. 5-7, 9-10. We
disagree. The Court of Appeals explicitly failed to resolve this question because
it agreed "with petitioner's alternative argument that the FCC's . . . rulemaking
was arbitrary and capricious." 259 U.S.App.D.C. 191, 197-198, 814 F.2d 720,
726-727 (1987). The Court of Appeals' disposition with respect to these three

classes of cable channels was to vacate those portions of the rule and to remand
to the Commission for further proceedings. In their brief, moreover, petitioners
refer specifically to "a vote of 2-1 [in] the Court of Appeals" in stating the
questions presented, which was the disposition below only with respect to the
one class of cable channels. Brief for Petitioners i.
4

Petitioners argue that by empowering local franchising authorities to take into

account whether "the quality of the operator's service, including signal quality .
. . has been reasonable in light of community needs," 47 U.S.C. 546(c)(1)(B)
(1982 ed., Supp. IV), Congress implicitly recognized that local franchising
authorities would need a comprehensive set of additional technical standards in
order to carry out this task. Yet this argument simply ignores the fact that local
authorities are able to assess signal quality against the technical standards set by
the Commission, which it has found are adequate to ensure "an acceptable
quality of service at the worst subscriber location and thus a better quality of
service to the average subscriber." 50 Fed.Reg. 52462, 52463, n. 2 (1985).

Petitioners and other state and local authorities remain free, of course, to
petition the Commission for an individualized waiver that would permit them
to "impose additional or different requirements," which they may seek to obtain
by demonstrating that particular local conditions create special problems that
make the federal technical standards inadequate. See 47 CFR 76.7 (1987).

Since we conclude that the Commission is authorized under 624(e) of the

Cable Act to pre-empt technical standards imposed by state and local
authorities, we need not also consider whether the Commission retains the
same broad pre-emptive authority in the area of cable television under 4(i)
and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i)
and 303, that it had exercised before the Cable Act was enacted in 1984. In
adopting the regulations at issue here, the Commission claimed to possess
statutory authority under those two sections of the Communications Act as well
as under the new Cable Act. 50 Fed.Reg., at 52466. Petitioners claim that the
Cable Act withdrew such authority from the Commission, and their claim
draws some support from new language in 47 U.S.C. 152(a) (1982 ed., Supp.
IV), which states that "[t]he provisions of [the Communications Act] shall
apply with respect to cable service . . . as provided in [the Cable Act]." On the
other hand, the House Report suggests that this language is merely a more
explicit grant of "exclusive jurisdiction" to the Commission over specified
aspects of cable service, see H.R.Rep. No. 98-934, pp. 95-96 (1984), U.S.Code
Cong. & Admin.News 1984, pp. 4732, 4733, which settles matters that had
occasionally been in dispute. In addition, 303 of the Communications Act
continues to give the Commission broad rulemaking power "as may be
necessary to carry out the provisions of this chapter," 47 U.S.C. 303(r), which

includes the body of the Cable Act as one of its subchapters. But since in any
event the Commission possesses statutory authority to adopt the regulations at
issue in this case under 624(e) of the Cable Act, we do not decide whether the
Commission's actions are authorized on this alternative basis as well.