Locast and The Legislative History of 17 U.S.C. § 111(a)(5)

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III. Legislative History of Copyright Act § 111(a )(5)

A. Addressing the Complexity of the Act’s Legislative History

B. 1955-1965: Birth of the Nonprofit Booster/Translator Exception

C. 1965-1966: Debate & Authorship of the Provision in House Subcomm. No. 3

D. 1966-1967: Fortnightly, the FCC, Debate of the Whole, and Removal of § 111

E. 1967-1973: Fortnightly and Clay J. Whitehead

F. 1973-1976: Scrutiny of Nonprofit Cable and Adoption of the Copyright Act

IV. Analysis

Conclusion

* Editor-in-Chief, Tenth Volume of the New York University Journal of Intellectual Property & Entertainment Law and J.D. Candidate, Class of 2021, New York University School of Law. The author offers gratitude to Professor Jeanne Fromer for her guidance, mentorship, and editing throughout this process, along with Professor Amy Adler, Professor Barton Beebe, and Professor Scott Hemphill for their early encouragement. The piece is dedicated to the Tenth Volume.

1. Edmund Lee, Locast, a Free App Streaming Network TV, Would Love to Get Sued, N.Y. Times, Feb. 3, 2019, at BU1 (emphasis added).
2. Locast, https://www.locast.org/ (last visited Apr. 26, 2021) (advertising that Locast retransmission signals were available to 51.7% of the U.S. population as of the date visited).
3. Lee, supra note 1; Live TV Guide, Locast, https://www.locast.org/cities/501 (last visited Feb. 21, 2021) (in the New York market alone, approximately 50 live fees are available, including: CBS, NBC, FOX, ABC, and PBS).
4. Lee, supra note 1.
5. See id. (“Mr. Goodfriend said he would welcome a legal challenge from the networks.”).
6. Amended Complaint, ABC, Inc. v. Goodfriend, No. 19-cv-7136 (S.D.N.Y. Oct. 30, 2020) (named plaintiffs include: ABC, Disney, Twentieth Century Fox Film, CBS Broadcasting, CBS Studios, FOX Television Stations, FOX Broadcasting Company, NBCUniversal Media, Universal Television, and Open 4 Business Productions).
7. Id.at 7; see also 17 U.S.C. § 106(5) (2012).
8. Aereo, like Locast, used antenna technology capable of seizing over-the-air broadcasting signals and translating these signals into “streamable” data for digital devices. ABC, Inc. v. Aereo, Inc., 573 U.S. 431, 436 (2014). However, unlike Locast, Aereo’s system was made up of “thousands of dime-sized antennas housed in a central warehouse.”Id.ABC, CBS, NBC, FOX, and other major broadcast companies filed suit in response. Warren Richey, Aereo Internet Service v. TV Broadcasters: US Supreme Court to Decide, The Christian Science Monitor, Apr. 20, 2014, https://www.csmonitor.com/USA/Justice/2014/0420/Aereo-Internet-service-vs.-TV-broadcasters-US-Supreme-Court-to-decide .
9. See Aereo, Inc., 573 U.S. at 451.
10. Emily Steel, Aereo Concedes Defeat and Files for Bankruptcy, N.Y. Times, Nov. 22, 2014, at B2, https://www.nytimes.com/2014/11/22/business/aereo-files-for-bankruptcy.html .
11. Janko Roettgers, Major Broadcasters Sue TV Streaming Nonprofit Locast, Variety, July 31, 2019, https://variety.com/2019/digital/news/major-broadcasters-sue-tv-streaming-nonprofit-locast-1203286487/ .
12. Locast, supra note 2.
13. See id.
14. See Answer to Amended Complaint at 2, ABC, Inc. (No. 19-cv-07136); see also 17 U.S.C. § 111(a)(5) (2012).
15. See 17 U.S.C. § 111 (enumerating the retransmission compulsory licensing fee scheme).
16. Aereo, Inc. , 573 U.S. at 462 (Scalia, J., dissenting) (citing to the network-petitioners’ brief).
17. Ben Munson, Donating to Locast is the ‘Single Smartest Move’ Any MVPD/vMVPD Can Make – Analyst, Fierce Video, July 9, 2019, https://www.fiercevideo.com/video/donating-to-locast-single-smartest-move-any-mvpd-vmvpd-can-make-analyst.
18. Ben Munson, Sling TV Guide Now Integrates Locast on the AirTV Mini, Fierce Video, Feb. 10, 2021, https://www.fiercevideo.com/video/sling-tv-guide-now-integrates-locast-airtv-mini.
19. To the extent that Section 111(a)(5) has been cited, the author has found it briefly mentioned in a single footnote of a published article. Lydia Pallas Loren, The Evolving Role of “For Profit” Use in Copyright Law: Lessons from the 1909 Act, 26 Santa Clara Comput. & High Tech. L.J.255, 279 n.138 (2010).
20. 17 U.S.C. § 111(a)(5) (2012).
21. See Aereo, Inc. , 573 U.S. at 442 (discussing Section 111 and Congress’s aims for addressing the rise of cable television and its relationship to copyright law).
22. See discussion infra Section II.C .
23. See Thorin Klosowski, Set Up Your Rabbit Ears for Maximum Reception, Life Hacker (Jan. 16, 2012, 9:00AM), https://lifehacker.com/set-up-your-rabbit-ears-for-maximum-reception-5876388 ( discussing how standard, television antenna works (a.k.a. “rabbit ears”)).
24. Copyright Law Revision: Hearings on H.R. 4347, H.R. 5680, H.R. 6831, and H.R. 6835 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 89th Cong. 1225 (1965), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter 1965 House Hearings] (statement of Ernest W. Jennes. Counsel, Maximum Service Telecaster, Inc.) (“ CATV originally did and still does operate in areas of poor television reception where it provides only the signals of local and area television broadcast stations which CATV subscribers within the service areas of these stations would not otherwise be able to receive adequately because of terrain or other factors. Such CATV systems, for example, place a receiving antenna on a mountain and bring the nearby local and area television signals down the mountainside by cable to communities shielded from direct signals.”). These modest beginnings are exemplified by Leroy “Ed” Parsons and his early work on the technology. See discussion infra Section II.C .
25. See id. (“ Early systems had one to three channels. Even in 1964, 70 percent of the CATV systems carried five or fewer channels.”).
26. Id.
27. See id. (“But new systems already carry up to 12 stations, and systems with 20, 30 or 40 channels are planned.”).
28. See id. (“ There are no geographical bounds for ‘CATV unlimited.’ Increasingly, multi-hop microwave relays are being sought or planned to import stations from metropolitan centers across many hundreds of miles and several States.”).
29. See id.at 1226 (“ As CATV’s purpose and operations expand beyond providing an auxiliary service, CATV becomes a threat to the public interest in free, diverse, and competitive, local and area television broadcast services. In essence, this threat derives from CATV’s ability to import multiple television signals from many distant stations into cities where local and area television stations are already reaching the viewing public. Because the same television programs are broadcast in many different markets, the importation by CATV into such well-served “cities of the signals from stations in other markets means that the exclusivity of the local station as to many—if not most—of its programs will be destroyed. To the extent that a program is viewed on an imported channel, the benefit of exclusivity, for which the local station has bargained, is destroyed—to the damage of the local station, the copyright owner and, ultimately, the public. For, when CATV subscribers watch network programs, feature films, or syndicated film programs imported from distant stations, the local viewing audience is fractionated and the local station is deprived of advertiser support, since it can no longer offer to advertisers as large an audience of local viewers. The resulting decrease in advertising revenue means at least that programing must be curtailed and at worst that the local station will be forced off the air. With either result, those persons unable or unwilling to pay to hook onto the CATV transmission cable or living in rural or other thinly populated areas which CATV cannot afford to serve will receive off the air a degraded service or none at all.”).
30. 1950s TV Shows: What Did People Watch? , Retrowaste , https://www.retrowaste.com/1950s/tv-shows-in-the-1950s/ (last visited Mar. 23, 2021).
31. Many of which, ironically, included the plaintiffs suing Locast. See discussion infra Section III .
32. See, e.g. ,House Comm. on the Judiciary, 88th Cong., 1st Sess., Copyright Law Revision Part 3: Preliminary Draft for Revised U.S. Copyright Law and Discussion and Comments on the Draft 424 (Comm. Print 1964), reprinted in 15 Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter CLR Part 3] (comment of George Schiffer) (“I wish to make plain that community antennas, boosters, translators and rooftop antennas should all be treated identically and should all be exempted from the operation of the Copyright Act. . . . The paramount interest is the public’s. The public’s interest is to have the greatest amount of television service at the lowest possible cost.”).
33. This included the Copyright Office, which—in their 1963 preliminary draft of the Copyright Act—first assumed the stance that boosters and CATV deserved different treatment under the Act. See Id.at 239 (“The second of the four problems that we see here is the rather interesting question of rebroadcasting or retransmission. And here, of course, there is a vast amount of technology and a vast amount of ignorance, probably on our part as much as anybody else’s. But essentially, as we see it, there are two situations where money is involved: (1) the community antenna or CATV system, where the broadcast is picked up and retransmitted over wires to a special receiving set, and where the subscriber pays for the service; and (2) the booster system, where the signal is merely magnified and where anybody in the vicinity can pick the broadcast up. That’s the second problem: rebroadcasting or rediffusion. . . . With respect to rebroadcasting . . . we felt it desirable to exempt relay boosters . . . [but] we did not feel that a commercial [CATV] . . . should be exempted . . . .”).
34. A representative of the National Association of Broadcasters (“NAB”) proclaimed it “illogical” to distinguish between CATV and other retransmission services. Id. at 254.
35. See 17 U.S.C. § 111 (2012) (subjecting cable system retransmissions to copyright liability, while immunizing nonprofit retransmission services).
36. See 17 U.S.C. § 111(a)(5).
37. This concern is confirmed by many statements made by the various stakeholders who testified on the matter through the section’s development. 1965 House Hearings, supra note 24, At 1226 (statement of Ernest W. Jennes, General Counsel, Maximum Service Telecaster, Inc.) (“Because the same television programs are broadcast in many different markets, the importation by CATV into such well-served cities of the signals from stations in other markets means that the exclusivity of the local stations to many—if not most—of its programs, will be destroyed. To the extent that a program is viewed on imported channel, the benefit of exclusivity, for which the local station has bargained, is destroyed—to the damage of the local station, the copyright owner and, ultimately, the public.”); Copyright Law Revision: Hearing on S. 1006Before the Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 89th Cong. 171 (1966), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter 1966 Senate Hearings] (statement of Arthur B. Krim, President, United Artists Group) (“The usual [network] license contract in syndication does not grant the right to authorize the telecast of our programs over additional stations and prevent the licensee station or sponsor from authorizing a community antenna to perform the program. These restrictions are in keeping with the underlying principle of geographical limitation that is central to all television release. . . . [I]t can readily be seen [then] that when a CATV system brings programs from a distant city, it plays havoc with every existing licensing system and either seriously downgrades or utterly destroys the property of the copyright owner.”). It should also be noted that members of the Motion Picture Association, Inc. (“MPA”) additionally expressed reservations about their work being shown in geographies not originally approved. 1965 House Hearings, supra note 24, at 1008(statement of Adolph Schimel, Chairman of Law Committee, Motion Picture Association of America, Inc.) (“Our TV performance license fees depend on the coverage of potential viewers, the timing of the broadcast, the priority and exclusivity of performing rights which we can grant for the area, and other factors in the licensee’s area. . . . We feel strongly that our copyrights should not be freely transmitted, and thereby publicly performed, without our prior license, in this CATV manner. Our license for the original TV broadcast in other cities which the CATV operator captures and re-transmits from the air, does not expressly or impliedly license any further transmission by the CATV operator.”).

38. Section 111 would exempt completely from any copyright law provisions secondary transmissions when made at cost by either governmental bodies or nonprofit organizations. . . . [T]his provision was concerned with the operations of “nonprofit ‘translators’ or ‘boosters’ which do nothing more than amplify broadcast signals and retransmit them to everyone in an area for free reception… .” These translators and boosters have always been subject to FCC regulation and require retransmission consent of the originating station under § 325(a) of the Federal Communications Act.

    However, the language of the exemption as formulated in § 111 would be equally applicable to cable systems which are operated by governmental bodies or nonprofit organizations. . . . There are a large number of nonprofit organizations in the United States. Many of them operate big enterprises. Moreover, there are already in existence at least 15 municipally-owned CATV systems and there is an increasing drive across the country for municipal ownership of cable systems. . . . The copyright owners are concerned that increasing governmental or non-profit ownership of cable systems may deprive them of license fees for the use of their product.
    A free ride for these entities cannot be squared with the achievement of the public purpose which underlies the copyright system. That purpose is to promote the useful arts by granting compensation adequate to foster creativity. A legal requirement that copyrighted film programs be available to nonprofit and governmental users for free is no less repugnant to the purpose of the copyright system because the user does not intend to make a profit.

    Copyright Law Revision: Hearings on S. 1361 Before the Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 93d Cong. 303 (1973),reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter 1973 Senate Hearings] (statement of Jack Valenti, President, Motion Picture Association of America, Inc.) (emphasis added). See also 1965 House Hearings at 1226 (statement of Ernest W. Jennes, General Counsel, Maximum Service Telecaster, Inc.) (“Besides the destruction of program exclusivity, [CATV] is unfair and inequitable. These multiple-channel CATV systems carry vast quantities of program material. If these systems went out into the marketplace to purchase rights to program material, the cost to the CATV’s—and the corresponding return to the copyright owners—would be substantial.”); see also James J. Popham, The 1971 Consensus Agreement: The Perils of Unkept Promises, 24 Cath. U. L. Rev. 813 (1975) (“[B]ecause the cable television industry’s promise to support specific copyright legislation has not been fulfilled, cable television systems still pay nothing for the broadcast programming for which broadcast stations and networks pay millions of dollars each year.”).
39. H.R. Rep. No. 94-1476, at 92 (emphasis added).
40. Amended Complaint, supra note 6, at ¶ 12.i-iii (“ Locast departs from the activities of a mere booster of broadcast signals in a variety of ways. Among other things, Locast . . . strips from the over-the-air broadcast signals the Nielsen watermarks that measure viewing for local and national advertisers, thereby endangering broadcasters’ advertising revenue.”).
41. Jessica D. Litman, Copyright Compromise and Legislative History, 72 Cornell L. Rev. 857, 865 (1987).
42. Answer to Amended Complaint, supra note 14 , at 2.
43. The Copyright Act defines “secondary transmission” as follows:

    [T]he further transmitting of a primary transmission simultaneously with the primary transmission, or nonsimultaneously with the primary transmission if by a cable system not located in whole or in part within the boundary of the forty-eight contiguous States, Hawaii, or Puerto Rico: Provided, however, That a nonsimultaneous further transmission by a cable system located in Hawaii of a primary transmission shall be deemed to be a secondary transmission if the carriage of the television broadcast signal comprising such further transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission.

    17 U.S.C. § 111(f)(2) (2012). Because Locast further transmits primary transmissions simultaneously with their original transmission (via their originating station), it meets the first clause. The second clause is inapplicable because Locast is not a cable system (addressed below).
44. The Copyright Act defines “cable system” as follows:

    [A] facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.

    17 U.S.C. § 111(f)(3) (2012). Because Locast is neither a subscription-based service nor a serve that requires payment, it does not meet this definition. See also Dimitry Dymarsky, FilmOn and the Copyright Act Section 111 Compulsory Licensing, A.B.A., https://www.americanbar.org/groups/litigation/committees/intellectual-property/practice/2015/filmon-copyright-act-section-111-compulsory-licensing/ (last visited Feb. 22, 2021) (discussing the recent case of Fox Television Stations, Inc. v. FilmOn X LLC and the federal court’s conclusion that internet streaming technologies are not “cable television systems” within the meaning of Section 111. See Fox Television Stations, Inc. v. FilmON X LLC, No. 13-758-RMC (D.D.C. Nov. 12, 2015) (opinion under seal)).
45. Answer to Amended Complaint, supra note 14, at ¶ 137 (“As a threshold matter, the broadcasters do not challenge [Locast’s] status as a non-profit . . . .”); Amended Complaint, supra note 6 (failing to challenge Locast’s status as a registered nonprofit; rather, challenging its specific operations as not being consistent with a nonprofit).
46. See Answer to Amended Complaint, supra note 14.
47. Notably, David Goodfriend remains a consultant for DISH. See id. at ¶ 9.
48. Id.at ¶ 8; see also Amended Complaint, supra note 6, at ¶ 8.
49. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 4 n.5 (2001) (discussing the philosophy of textualism and the Court’s then-leading proponents of the philosophy, Justices Antonin Scalia and Clarence Thomas).
50. United States v. Ron Pair Enters., 449 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).
51. Manning, supra note 53 at 4.
52. An excellent analysis of both may be found in Jonathan T. Molot’s “The Rise and Fall of Textualism.” 106 Colum. L. Rev. 1 (2006).
53. Hugh R. Slotten, Radio and Television Regulation – Broadcast Technology in the United States: 1920-1960 3 (2000).
54. Id.(discussing Italian inventor Marchese Guglielmo Marconi’s cross-Atlantic wireless telegraph transmission in 1901).
55. See How Radio Works, Ga. St. Univ. Libr., https://exhibits.library.gsu.edu/current/exhibits/show/georgiaradio/radio1920s/howradioworks (last visited Feb. 24, 2021).
56. See AM, FM and Sound, Cyber Coll. Internet Campus (May 28, 2013), https://www.cybercollege.com/frtv/frtv017.htm (“First, you can’t put stations on the same frequency that are too close together in a geographic area. They will interfere with each other. And for the same reason you can’t have two stations close together in frequency . . . in the same area.”).
57. See Interference with Radio, TV, and Cordless Telephone Signals, Federal Communications Commission, https://www.fcc.gov/consumers/guides/interference-radio-tv-and-telephone-signals (last visited Feb. 24, 2021) (“Interference occurs when unwanted radio frequency signals disrupt the use of your television, radio or cordless telephone. Interference may prevent reception altogether, may cause only a temporary loss of a signal, or may affect the quality of the sound or picture produced by your equipment. The two most common causes of interference are transmitters and electrical equipment.”).
58. For AM radio, this range is limited to 540 kHz to 1,600 kHz. The Electromagnetic Spectrum, Lumen, http://hyperphysics.phy-astr.gsu.edu/hbase/ems2.html (last visited Feb. 24, 2021). For television, however, because “the waves must carry a great deal of visual as well as audio information, each channel requires a larger range of frequencies than simple radio transmission. TV channels utilize frequencies in the range of 45 to 88 MHz and 174 to MHz.”Id.In all, the FCC has only allocated frequency bands between 9 kHz and 275 GHz. Interference with Radio, TV, and Cordless Telephone Signals, FCC , https://www.fcc.gov/consumers/guides/interference-radio-tv-and-telephone-signals(last visited Feb. 24, 2021).
59. “[T]ragedy of the commons is an analogy that shows how individuals driven by self-interest can end up destroying the resource upon which they all depend.”. Daniel J. Rankin et al., The Tragedy of the Commons in Evolutionary Biology, 22 Trends in Ecology & Evolution 643 (2007).
60. Slotten , supra note 58 , at 6 (emphasis added).
61. See id. at 6–7.
62. Id.at 7.
63. A common escapade for young amateur radio operators was to send out fake distress calls to the United States Navy. See id. at 7. This prank was so abundant that military personnel lobbied Congress to transfer control over the spectrum from lay users to the military. See Susan J. Douglas, Inventing Broadcasting 1899-1922, 207–210 (1987) (discussing the navy’s qualms with early, amateur radio operators and their lobbying efforts to take away the spectrum from such operators).
64. Slotten, supra note 58 , at 7.
65. Titanic Sinks, History, https://www.history.com/this-day-in-history/titanic-sinks (last updated Apr. 13, 2020).
66. See Slotten, supra note 58 , at 7; Erin Blakemore, Why Titanic’s First Call for Help Wasn’t an SOS Signal, Nat’l Geographic (May 28, 2020), https://www.nationalgeographic.com/history/article/why-titanic-first-call-help-not-sos-signal.
67. See Radio Act of 1912, 44 Stat. 1162 (1912), amended by Radio Act of 1927, 44 Stat. 1162 (1927).
68. See Slotten, supra note 58 , at 8.
69. Id. at15.
70. See David Moss et. al., Regulating Radio in the Age of Broadcasting, Harv. Bus. Sch. Case 716-043 (2017) (“By 1927, more than 700 stations were battling over 96 available frequencies. This crowding of the broadcast spectrum substantially diminished the quality of radio listening. In fact, the airwaves were so full of interference that many citizens complained that it was often impossible to tune into any station clearly.”).
71. Hoover v. Intercity Radio Co ., 286 F. 1003 (1923), appeal dismissed per stipulation, 266 U.S. 636 (1924) (holding that the Secretary of Commerce had no discretion over the issuance of radio licenses); United States v. Zenith Radio Corp. , 12 F.2d 614 (N.D. Ill. 1926) (denying the Secretary of Commerce’s power to file claims against illegal operators).
72. See Radio Act of 1927, 44 Stat. 1162 (1927).
73. See Slotten, supra note 58 , at 43; see also Radio Act of 1927, 44 Stat. 1162 (1927).
74. See Slotten, supra note 58 , at 43.
75. 68 Cong. Rec. 2580 (1927) (statement of Sen. Wallace H. White, Jr.) (“We have recognized in that compromise provision that it is not the right of a community to demand a station, not a right of a particular State to demand a station, but it was the right of the entire people to service that should determine the distribution of those stations; and it is written here in express language that it shall be the duty of this commission, this regulatory authority, to make such a distribution of stations, licenses, and power as will give all the communities and States fair and equitable service, and that is the sound basis on which legislation of this character should be founded.”).
76. Hoover’s remarks were distributed to Congress during debate. In it, Hoover outlined a national plan for broadcast access. See id. at 2576 (statement of Sen. Edwin L. Davis) (“I am advised, Secretary Hoover, that the best broadcasting service can be rendered to the whole country by a few large stations. However, such a view utterly ignores the rights of the different sections and the desire of the citizens of different sections to have information and other programs of a sectional, State, or local character broadcast.” (emphasis added)).
77. Radio Act of 1927, 44 Stat. 1162, 1167 (1927) (emphasis added).
78. Amy Norcross, Hoover Joins 1st American Demo of Long-Distance TV, April 7, 1927, EDN (Apr. 7, 2019), https://www.edn.com/hoover-joins-1st-american-demo-of-long-distance-tv-april-7-1927/ .
79. Suzanne Deffree, 1st American TV Station Begins Broadcasting, July 2, 1928, EDN (July 2, 2019), https://www.edn.com/1st-american-tv-station-begins-broadcasting-july-2-1928/ .
80. Roosevelt’s speech was delivered at the New York World’s Fair in 1939. In contrast to his famous “fireside chats” on national radio and President Truman’s first televised address from the White House in 1947, this early broadcast only reached receivers at the Fair and in Manhattan. Harry Truman Delivers First-Ever Presidential Speech on TV, History, https://www.history.com/this-day-in-history/first-presidential-speech-on-tv (last updated Oct. 2, 2021).
81. See Our History, NBCUniversal, https://www.nbcuniversal.com/history (last visited Feb. 24, 2021) (discussing NBC’s television beginnings in the early 1930s); Ed Reitan, CBS Color Television System Chronology, Novia, (2006), https://web.archive.org/web/20130922013759/http://www.novia.net/~ereitan/CBS_Chronology_rev_h_edit.htm (discussing CBS’ early experimentations with television in 1940); Keith Gluck, The Genesis of Disney Television, Walt Disney Family Museum (July 23, 2013, 2:00PM), https://www.waltdisney.org/blog/genesis-disney-television (discussing Walt Disney’s early investment in television in late 1935).
82. See S. Comm. on Interstate Com., 73d Cong., Study of Communications by an Interdepartmental Committee: Letter from the President of the United States to the Chairman of the Committee on Interstate Commerce (Comm. Print 1934).
83. Id.at 6 (emphasis added).
84. Communications Act of 1934, 47 U.S.C. § 151 (1934).
85. Id.(emphasis added).
86. See id. (discussing the consolidation of communications policy authority to the FCC).
87. Staff of the Fed. Comm. Comm’n, BC Docket No. 78-253, Report and Recommendation in the Low Power Television Inquiry, 5 (1980).
88. Adam Lefky, Number of Televisions in the US, Physics Factbook (2007), https://hypertextbook.com/facts/2007/TamaraTamazashvili.shtml (citing figures from The World Book Encyclopedia).
89. Id. (citing figures from The Encyclopedia Americana).
90. Id. (citing figures from The World Book Encyclopedia).
91. Staff of the Fed. Comm. Comm’n, supra note 99, at 5.
92. See I Love Lucy: An American Legend, Libr. of Cong., https://www.loc.gov/exhibits/i-love-lucy/legacy.html (last visited Feb. 24, 2021) (providing a timeline for “I Love Lucy,” beginning in the early 1950s); David B. Wilkerson, The Hunt for TV’s Lost Baseball Treasures, MarketWatch (Oct. 27, 3:36PM), https://www.marketwatch.com/story/the-hunt-for-tvs-lost-baseball-treasures-2010-10-27 .
93. Id. at 107.
94. Id. at 107-08.
95. Richard Burton, Interview with Leroy “Ed” Parsons, The Cable Ctr.: The Hauser Oral Hist. Project (June 19, 1986), https://www.cablecenter.org/programs/the-hauser-oral-history-project/p-q-listings/leroy-ed-parsons.html .
96. Cablefax Staff, Ed Parsons Brings Cable to Astoria, Cablefax (2015), https://www.cablefax.com/cablefax_viewpoint/ed-parsons-brings-cable-astoria .
97. Id.(“Ed said he never really made any money in cable television because it did not occur to him that he could turn it into a steady income. . . . Ed charged an installation fee based on his expenses, typically $125, but it did not occur to him to charge a monthly fee for his service.”).
98. Loran Rasmussen, Interview with Robert Tarlton , The Cable Ctr.: The Hauser Oral Hist. Project (June 27, 1986), https://www.cablecenter.org/programs/the-hauser-oral-history-project/t-v-listings/robert-tarlton-penn-state-collection.html.
99. See id. (“I designed so that we’d figure, well, about 200 people can afford to buy service and that’s what I designed the thing for. Little did I know within a month’s time the 200 people would be compounded. People clamoring for service.”). Tartlon charged a $100 installation fee with a $3/month maintenance fee.Id.
100. The Cable History Timeline, The Cable Ctr. 1, https://www.cablecenter.org/images/files/pdf/CableHistory/CableTimelineFall2015.pdf (last visited Feb. 24, 2021).
101. Staff of the Fed. Comm. Comm’n, supra note 99, at 6 (“According to E.B. Craney, a pioneer in the field of low-power television, the first booster probably was established in 1948, by Ed Parsons to reach homes beyond the range of his cable TV system in Astoria.”).
102. Id. at 4.
103. Id.at 30 (“The earliest translators often were financed by individuals who wanted television service for themselves and found that other members of the community would provide contributions to help cover the operating costs.”).
104. 18 Fed. Comm. Comm’n Ann. Rep. 107 (1952).
105. K.M. Richards, Translators: The Complete Story, UHF Television, http://www.uhftelevision.com/articles/translators.html [ https://web.archive.org/web/20190911011955/http://www.uhftelevision.com/articles/translators.html ]. The below is the proposed channel allotment strategy in the Sixth Report and Order:

     Population of Central City	Number of Channels
     1,000,000 and above	6 to 10
     250,000 – 1,000,000	4 to 6
     50,000 – 250,000	2 to 4
     Under 50,000	1 to 2

     Staff of the Fed. Comm. Comm’n, supra note 99, at 56.
106. Richards, supra note 125.
107. Radio Waves, Sci. Encyc. , https://science.jrank.org/pages/5675/Radio-Waves-Propagation-radio-waves.html (last visited Feb. 25, 2021).
108. See Mark D. Casciato,Radio Wave Diffraction and Scattering Models for Wireless Channel Simulation 1(2001) (Ph.D. dissertation, University of Michigan), http://www.eecs.umich.edu/radlab/html/NEWDISS/Casciato.pdf (“The propagation of a radio wave through some physical environment is effected by various mechanisms which affect the fidelity of the received signal. . . . These effects can include shadowing and diffraction caused by obstacles along the propagation path, such as hills or mountains in a rural area, or buildings in more urban environment.”).
109. Staff of the Fed. Comm. Comm’n, supra note 99, at 38.
110. Jeff Desjardins, Visualizing 200 Years of U.S. Population Density, Visual Capitalist (Feb. 28, 2019), https://www.visualcapitalist.com/visualizing-200-years-of-u-s-population-density/ (displaying an animated map created by Vivid Maps, based on U.S. census data and Jonathan Schroeder’s county-level decadal estimates for population).
111. Hundreds of operations were erected as the decade passed. Cable Television, History of, Encyclopedia.com, https://www.encyclopedia.com/media/encyclopedias-almanacs-transcripts-and-maps/cable-television-history (last visited Mar. 31, 2021).
112. See Burton, supra note 109 (Leroy “Ed” Parsons discussing the Jerrold amplifier in the 1950s, designed for retransmitting four channels simultaneously).
113. During the 1950s, AT&T Long Lines built a transcontinental system of microwave relay links across the United States that grew to carry the majority of American television network signal traffic. “Sugar Scoop” Antenna Catches Microwaves, Popular Mechs., Feb. 1955, at 87. See also 1965 House Hearings, supra note 24 (statement of Ernest W. Jennes. Counsel, Maximum Service Telecaster, Inc.) (“There are no geographical bounds for ‘CATV unlimited.’ Increasingly, multi-hop microwave relays are being sought or planned to import stations from metropolitan centers across many hundreds of miles and several States.”).
114. Staff of the Fed. Comm. Comm’n , supra note 99, at 7–8.
115. One particular incident involved Governor Ed Johnson of Colorado—former Chairman of the Senate Commerce Committee—who issued an open challenge to the FCC to sue the state as he granted licenses to all persons seeking a booster license.Id.at 7. A similar incident involved an Oregon Senator who resisted the shutting down of a local booster operation in the Okanogan Valley. Id. at 6–7.
116. See id. at 8.
117. Robert Kastenmeier, Register of Copyright.

     Actually, don’t the stations commercially benefit by this, in the sense that translator stations, booster stations, add to viewership? I would think that the stations involved whose signals were being thus picked up and translated would stand to benefit and be able to commercially improve their rate structure as far as advertising is concerned.”

     Ernest W.Jennes.

     Well, if you take the situation—and we are talking apparently about translators now and not CATV systems—where the service is being provided by a translator, the extension of the service is being provided free. Where the stations is able to increase the number of people it serves by virtue of a translator, it is to that extent benefiting its own circulation. This is in sharp contrast to the CATV situation where you have outside signals being brought in by CATV into the areas served by the station and fractionating the audience of the station.

     1965 House Hearings, supra note 24, at 8.
118. See Daniel J. Smith, Note, Stay the Course: A History of the FCC’s Response to Change in the Cable Industry, 13 J.L. & Politics 715, 726–727 (1997) (discussing the FCC’s rejection of jurisdiction for CATV issues).
119. 1965 House Hearings, supra note 24, at 3 (statement of Ernest W. Jennes, General Counsel, Maximum Service Telecasters, Inc.).
120. Jacob W. Mayer, Book Review, 16 Wm & Mary L.Rev. 1033 (1974) (reviewing , Don R. Le Duc, Cable Television and the FCC: A Crisis in Media Control (1973) ).
121. Id. at 1035.
122. See, e.g., Gerald C. MacCallum, Jr., Legislative Intent, , 75 Yale L.J. 754 (1966).
123. As early as 1932, Senator Clarence Dill (D-WA) proposed a revision to the 1909 Act that would have explicitly recognized radio broadcasting as a protected “public performance.” Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision Studies, Limitations on Performance Rights, Study No. 16, at99(Comm. Print 1960), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter CLR Study] (“That the use of a machine, instrument, or instruments serving to reproduce mechanically and/or electrically such work or works, except where such reproduction is by radio or wireless broadcast, shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs: Provided further, That the provisions of this Act shall not apply to the reception of any work by the use of a radio-receiving set or other receiving apparatus unless a specific admission or operating fee is charged therefor by the owner or operator of such radio-receiving set or other receiving apparatus.”).
124. Litman, supra note 44, at 865.
125. Id.at 860–61.
126. Id. at 862.
127. Infra III.C .
128. Litman, supra note 44, at 861.
129. See, e.g., Mills Music v. Snyder,469 U.S. 153, 165 (1985) (analyzing the legislative history of Section 304(c)).
130. Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision Studies, Foreword, at III (Comm. Print 1960), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter CLR Foreword] (“Beginning in 1955, the Copyright office of the Library of Congress, pursuant to appropriations by Congress for that purpose, has been conducting studies of the copyright law and practices. . . . The subcommittee believes that these studies will be a valuable contribution to a better understanding of copyright law and practice and will be extremely useful in considering the problems involved in proposals to revise the copyright law.”).
131. The exclusive right of public performance has existed since 1856. See CLR Study, supra note 143, at 81. In the beginning, the right extended only to public performances of dramatic works. By 1897, it was expanded to musical works and public speeches. The early version of the law, however, enumerated no exceptions. Id.This changed with the Copyright Act of 1909, which exempted—for the first time—public performance done for a nonprofit purpose. Copyright Act of 1909, 17 U.S.C. §1(e) (1909) (amended 1976). Supposedly, this change was motivated by congressional fears that an absolute public performance right could stifle the “free enjoyment of music.” CLR Study, supra note 143, at 82. Their attempt at protecting live musical performances, however, was rendered futile by their failure to define the term “public performance” in the Act itself. See 17U.S.C. §1(e). This definitional gap became the frequent subject of legal disputes across the country as musical composition owners began to file claims against parties publicly playing their music to paying and nonpaying audiences using radio technology. So much so that by 1916, the Supreme Court granted certiorari to attempt to define the right of public performance. Herbert v. Shanley Co.,242 U.S. 591 (1916). The Court later attempted to clarify this definition in the case of Buck v. Jewell-La Salle Realty Co., where—for the first time—the Court extended the public performance right to broadcast retransmissions. 283 U.S. 191, 197-98 (1931). Soon thereafter, multiple members of Congress introduced amendments to the copyright law seeking to adapt to broadcast. See S. 3985, 72d Cong. (1st Sess. 1932) (“That the use of a machine, instrument, or instruments serving to reproduce mechanically and/or electrically such work or works, except where such reproduction is by radio or wireless broadcast, shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs; Provided further, That the provisions of this Act shall not apply to the reception of any work by the use of a radio-receiving set or other receiving apparatus unless a specific admission or operating fee is charged therefor by the owner or operator of such radio-receiving set or other receiving apparatus.”); H.R. 10364, 72d Cong. (1st Sess. 1932) (exempting “the reception of any copyright work by the use of a radio receiving set or other receiving, reproducing, or distributing apparatus, except where admission fees, cover charges, operating charges, or similar made.”); S. 3047, 74th Cong. (1st Sess. 1935) (seeking to extend the 1909 Act’s nonprofit exception to all broadcast performances).
132. See CLR Foreword, supra note 151, at III; see also Legislative Appropriations Act of 1956, Pub. L. No. 242, 69 Stat. 499.
133. Jessica D. Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275, 309 (1989) (“Fisher hoped to keep the policy making process insulated within the Copyright Office to avoid the partisan wrangling that infected prior legislation.”).
134. See id. at 308–09.
135. Id.at 309.
136. H. Comm on the Judiciary, 87th Cong., Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law31 (Comm. Print 1961).
137. Those opposed included: (1) The American Guild of Authors and Composers . House Comm. on the Judiciary, 88th Cong., 1st Sess., Copyright Law Revision Part 2: Discussion and Comments on the Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law235 (Comm. Print 1963), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) (statement of Leon Kellman, Counsel, The Copyright Committee of American Guild of Authors and Composers) (“The use and enjoyment of creative works, by the public, involves many services and commodities. Actors, musicians, directors, electricians, designers, seamstress, carpenters, stagehands, ticket sellers . . . must be hired. . . . All this is true regardless of whether the production or enterprise is a commercial one or whether it is conducted by a nonprofit organization.” (emphasis added)). (2) ASCAP. Id.at 47 (statement of Herman Finkelstein, Counsel, American Society of composers, Authors and Publishers) (“I applaud the suggestion of the report that with respect to motion pictures the right of public performance be enlarged, without the ‘for profit’ limitation; I would support making the same extension to choreographic works, after recognizing them.”). And (3) the Writers Guild of America.Id.at 413 (statement of Richard B. Jablow, Counsel, Writers Guild of America) (“It is the guild’s position that the reception of broadcasts in every case constitutes a public performance.”).
138. Id. at 283 (statement of Herman Finkelstein, Counsel, American Society of Composers, Authors and Publishers) (“The proposed exemption is wholly unwarranted. It would appropriate the creation of authorship for the benefit of a special class of commercial users. The evil might ultimately be as far reaching as the present jukebox exemption.” (emphasis added)).
139. Litman, supra note 154, at 310–11.
140. 2 The Kaminstein Legislative History Project: A Compendium and Analytical Index of Materials Leading to the Copyright Act of 1976, at 162 (Alan Latman & James F. Lightstone, eds., 1982) [hereinafter Kaminstein].
141. Arthur Fisher, 1951-1960, 2 U.S. Copyright Off., https://www.copyright.gov/about/registers/fisher/fisher.html (last visited Feb. 27, 2021).
142. The Rise of Cable Television, 2 Encyclopedia.com, https://www.encyclopedia.com/arts/news-wires-white-papers-and-books/rise-cable-television (last visited Mar. 19, 2021).
143. Abraham L Kaminstein, 1960-1971, 2 U.S. Copyright Off., https://www.copyright.gov/about/registers/kaminstein/kaminstein.html (last visited Feb. 27, 2021).
144. See Preliminary Draft for Revised U.S. Copyright Law: § 13(a), reprinted in CLR Part 3, supra note 34, at 13.
145. The full text of the statute can be found below. The office’s extension of immunity to boosters and translators can be found in subsection (a). Its refusal to immunize CATV is found in subsection (b):

     §13.

     Scope of exclusive rights with respect to broadcasting and diffusion
     Subject to the limitations specified in subsection (b), the exclusive right to perform a work publicly under section 5(c) shall, with respect to a program incorporating a performance of the work, include the right to transmit the program by broadcasting, rebroadcasting, diffusing, rediffusing, or otherwise publicly communicating it.
     The exclusive rights . . . shall not include the right to prevent:
     (2) Rebroadcasting or rediffusision of the program, over wires or otherwise, for reception on ordinary home receiving sets, where the broadcast signals are merely being strengthened in power without being altered in wavelength or content, and where the program is not being transmitted to the subscribers to a rediffusion service.

     Kaminstein, supra note 162, at 162.
146. In addition to the American Publisher’s Council, American Textbook Publishers Institute, American Guild of Authors and Composers, ASCAP, and Writers Guild of America, the 1964 commentators included many representatives of plaintiffs in the Locast suit, including: Twentieth Century-Fox Film Corp., CBS, Universal Pictures, Walt Disney Productions, and 2 ABC.H. Comm. on the Judiciary, 89th Cong., 1st Sess., Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments 33–36 (Comm. Print 1965), reprinted in Melville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter CLR Part 5].
147. CLR Part 3, supra note 34, at 239–240 (statement of Barbara Ringer, United States Copyright Office, Chief of Examining Division) (emphasis added).
148. See id. at 419–433(statement of George Schiffer, National Community Television Association).
149. Id. at 424, 426.
150. Id. at 245(statement of Douglas Anello, General Counsel, National Association of Broadcasters) (“Finally, the community antenna operator, in contradistinction to the apartment-house antenna operator, can insert—and does in fact insert—his own programming from time to time. In other words, he has control over the transmission that each subscriber to that system receives.”).
151. Id. at 248(statement of Harry J. Olsson Jr., Counsel, American Broadcasting Company) (“I would like to comment on several things that Mr. Schiffer has saId. I think the first of his two main points was that there’s a need for adequate TV reception in the public. I think everybody in the room will probably agree that there is.”).
152. Id.at 248–249 (statement of Harry J. Olsson, Jr., Counsel, American Broadcasting Company) (“ The broadcasters satisfy that need as well as they can, and they now reach something over 90% of the population in the country. . . . But we don’t, as a consequence, plead for freedom from paying copyright royalties, despite the fact that we are satisfying the need. . . . I don’t think that’s an adequate basis on which to plead for an exemption. . . . The CATV system is selling programs, or it’s selling the right to receive copyrighted material. . . . Subscribers pay to be able to receive the programs which contain the copyrighted material. I think it [sic] just to say that the CATVs charge an electronic admissions fee. In a sense, they have a pay-television system in operation.”).
153. Id. at 251 (statement of Robert D. Greenburg, Commissioner, Federal Communications Commission (“I really have very little to add to what some of the broadcasters have said, except that I couldn’t resist the opportunity to align myself for once with the industry. [Laughter]”).
154. Id. at 244 (statement of Sydney M. Kaye., Counsel, National Association of Broadcasting).
155. Id. at 254 (statement of Douglas Anello, General Counsel, National Association of Broadcasters) (“Well, I am a broadcaster, and I say it’s illogical to draw a distinction for copyright purposes between transmissions by CATV systems, transmissions by a booster, transmission by a translator, and transmission by a regular broadcast.”).
156. Their proposed language can be found below:

     § 13. Scope of Exclusive Rights with Respect to Transmission of Performance by Wire or Radio Communication

     “The exclusive right to perform a work publicly under Section 5(c) shall include the right to transmit a performance of a work to the public by wire or radio (including television) communication; provided that such communication of a performance of a work to a specific group of persons limited in number and assembled to see or hear the performance in an office, classroom, or other place not open to the public at that time, or to the occupants of one or more apartment buildings by means of a facility owned or controlled by the owner of such building or buildings, shall not constitute a public performance under Section 5(c).”

     Id. at 361 (statement of Robert V. Evans, Assistant General Attorney, Columbia Broadcasting Systems, Inc.).
157. Section 8(4) and Section 13 state as follows:

     § 8. Limitations on exclusive rights: exemption of certain performances and exhibitions.

     Notwithstanding the provision of section 5, the performance of nondramatic literary or musical work, or the exhibition of a pictorial, graphic, or sculptural work, is not an infringement of copyright in any of the following cases:

     . . .

     (4) performance of the work, otherwise than in a broadcast to the public, without any purpose of direct or indirect commercial advantage and without payment of any salary, fee, or other compensation to the performers, if:

     (A) There is no direct or indirect admission charge, or

     (B) The proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain.

     § 13. Scope of exclusive rights: public communications of broadcasts.

     Notwithstanding the provision of section 5, the following are not infringements of the exclusive right to perform or exhibit a copyrighted work:

     communication of a broadcast embodying a performance or exhibition of the work to the private rooms of a public establishment by means of a system of loudspeakers, unless the person responsible for the communication or the operator of the establishment alters or adds to the content of the material included in the broadcast;

     reception of a broadcast embodying a performance or exhibition of the work on a single receiving apparatus of a kind commonly used in private homes, unless a direct admission fee is charged to see or hear the broadcast, or unless the receiving apparatus is coin-operated.

     CLR Part 5, supra note 168, at 6, 9. Section 13(1) appears to prohibit the insertion of content on top of retransmitted signals. See id. at 9.
158. CLR Part 5, supra note 168, at 6.
159. George Schiffer, on behalf of CATV interests: “I gather that the intent was not to exempt community antennas, albeit we approve of the effect of this provision.” Id. at 117 (statement on George Schiffer, National Community Television Association ). Robert Kaminstein responded: ”That’s right. I think it would be a dangerous assumption otherwise, Mr. Schiffer. [Laughter].” Id. (statement of Robert Kaminstein, Register, United States Copyright Office).

160. Mr. Chairman, there seems to be some uncertainty as to the exact meaning of section 13. Mr. Schiffer has suggested that clause (2) would give an exemption to community antenna systems, and he made the same observation with respect to section 8(4). I think this may be due to some of the language which appears there. Looking at it, the operative words seem to be “communication of a broadcast embodying a performance…”

     In trying to discover what this means, I think it’s fair to look back to section 5, because section 13 is intended to limit section 5. Turning back there, I find three other very similar clauses. I find “broadcast a performance,” “transmit É a broadcast of [a] performance,” and “communicate a performance.” I am sure that something different is meant by each of these four clauses, but I confess I am not quite sure what is meant exactly by each one. For example, under which section could a broadcaster in a proper case sue a community antenna system for infringement? I think it would be helpful if you or someone on your staff could tell us precisely what situation each of these words is intended to apply to.
     Finally, I think it would be helpful, and would clarify this whole thing if we had a definition of the word “broadcast,” which appears in section 13, in section 5, and also in section 8. I’d suggest as a definition: “To broadcast, means to transmit a performance or exhibition of a work to the public by wire or radio communication, including television.” This would be based on sections 3(a) and (b) of the Communications Act of 1934, and therefore has an already-established meaning. Thank you, Mr. Chairman.

     Id. at 129 (statement of Robert V. Evans, Counsel, Columbia Broadcasting Systems, Inc.).
161. Id. at 130.
162. Bill for the General Revision of the Copyright Law, H.R. 4347, 89th Cong. (1965). see also H. Comm. on the Judiciary, 89th Cong., 1st Sess., Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 1965 Revision Bill, at v (Comm. Print 1965), reprinted inMelville B. Nimmer & David Nimmer, Nimmer on Copyright Law: Copyright Law Revision (rev. ed. 2020) [hereinafter CLR Part 6] .
163. H.R. 4347, § 109, as reprinted in Kaminstein, supra note 162, at 175.
164. Hearings began on May 26, 1965 and ended on September 2 of the same year. 1965 House Hearings, supranote 24, at i.
165. Id. at 1–154.
166. Id. at iii.
167. Testimony included the representatives of the National Football League, the American Football League (now defunct), and various baseball organizations. Id. at 1823.
168. Id at 1223.
169. Id. at 29–60 (statement of George D. Cary, Deputy Register, United States Copyright Office).
170. Id. at 34 (“The next controversial issue involves the problem of community antenna television, or CATV as its commonly known.” (emphasis added)).
171. See id. at 34–35 (“CATV started out after World War II as an aid to those television viewers who were located in mountain valleys or other unfavorable locations where the television signal could not be adequately received, if it could be received at all. . . . It may be added that these early cables were able to carry at the most about three television channels.”).
172. See id. at 36.
173. See id. (“CATV systems effectively deprive the copyright owner of control over his work. In many cases, for example, motion pictures or syndicated series, where the broadcasting of a work is licensed for particular limited territory and audience, a CATV retransmission of a broadcast to subscribers in another area can mean the actual loss of the market for broadcasts in that other area. Multiplied many times throughout the country this loss can be very serious.”).
174. Id.(“On balance, however, it is our view that the CATV operators are making a performance to the public of a copyright owner’s work. This performance results in a profit which in all fairness the copyright owner should share. Unless he is compensated, the performance can have damaging effects upon the value of the particular copyright. For these reasons, therefore, we have not included an exemption for commercial community antenna systems in the bill.”).
175. Id. at 35–36.
176. Walt Disney Productions, Inc., Twentieth Century-Fox Television, Inc., and Universal Pictures were represented at this hearing by the president of United Artists Corp. and that of its subsidiary, United Artists Television, Inc. 1965 House Hearings ,supra note24, at 1332 ( statement of Arthur B. Krim, President, United Artists Corp.)
177. See id. at 1334.(statement of Arthur B. Krim, President, United Artists Corp.) (“When CATV began, its purpose was to serve towns far distant from the site of television stations or isolated by mountainous terrain. . . . As I shall explain, the continued growth of CATV, if not subject to copyright, would upset the nationwide FCC system of contour area allocations, make a mockery of the exclusive license agreements between copyright owners and television stations and seriously damage the property interests of both. . . . [It] has now proliferated into a vast and powerful industry. It operates even in areas where TV stations are already in existence or where the population is large enough to support them.”).
178. See id. (“When CATV began, its purpose was to serve towns far distant from the site of television stations or isolated by mountainous terrain. . . . As I shall explain, the continued growth of CATV, if not subject to copyright, would upset the nationwide FCC system of contour area allocations, make a mockery of the exclusive license agreements between copyright owners and television stations and seriously damage the property interests of both.”).
179. See id.at 1224 (statement of Ernest W. Jennes, Counsel, Association of Maximum Service Telecaster Inc.
180. Id. at 1224–26 (emphasis added).
181. Id.at 1880–81 (statement of Harry R. Olson, Jr., General Attorney, American Broadcasting Company) (“Insofar as the CATV’s merely receive television signals their arguments are sound enough. However, the CATV’s do more than merely receive signals. They transmit and furnish for a charge broadcast material, including copyright material, to their subscribers. . . . [They] have proliferated at an amazing rate; many are prosperous and many perform a socially useful function but no other industry using such material, it seems to us, makes a more direct charge to its customers for the privilege of seeing and hearing copyright works.”).
182. See id. at1892 (statement of Leon R. Brooks, Vice President and General Counsel, Columbia Broadcasting Systems) (“At the outset we want to affirm our support of those provisions . . . which make CATV systems subject to the copyright law thereby, in our opinion, codifying the law as it presently exists.”).
183. See id.at1918 (statement of Thomas E. Ervin, Vice President and General Attorney, National Broadcasting Company) (“NBC has proposed for many years that the broadcast station whose programs are being distributed by a CATV system be the focal point for rights clearances. If the station desires to permit its programs to be carried on a particular system, the station can negotiate with the holder of the rights for such CATV distribution when it acquires the right to broadcast the program.”).
184. Id.at 1825 (statement of Pete Rozelle, commissioner, National Football League) (“Moreover, by reason of CATV, leagues such as the NFL can no longer guarantee exclusivity of freedom from unlicensed competition to stations or networks which purchase the television rights to sports contests. Television values can therefore be expected to go down.”).
185. See, e.g., Id. at 1225 (statement of Ernest W. Jennes, Counsel, Association of Maximum Service Telecasters, Inc.) (“The number of channels carried is increasing rapidly. Early systems had one to three channels. Even in 1964, 70 percent of the CATV systems carried five or fewer channels. But new systems already carry up to 12 stations, and systems with 20, 30, or 40 channels are planned.”).
186. Id. at 1226(statement of Ernest W. Jennes, Counsel, Association of Maximum Service Telecasters, Inc.) (“Because the same television programs are broadcast in many different markets, the importation by CATV into such well-served cities of the signals from stations in other markets means that the exclusivity of the local station as to many—if not most—of its programs, will be destroyed. To the extent that a program is viewed on an imported channel, the benefit of exclusivity, for which the local station has bargained, is destroyed—to the damage of the local station, the copyright owner and, ultimately, the public.”). See also id at 1335 (statement of Arthur B. Krim, President, United Artists Group) (“The usual [network] license contract in syndication does not grant the right to authorize the telecast of our programs over additional stations and prevents the licensee station or sponsor from authorizing a community antenna to perform the program. These restrictions are in keeping with the underlying principle of geographical limitation that is central to all television release. . . . [I]t can readily be seen [then] that when a CATV system brings programs from a distant city, it plays havoc with every existing licensing system and either seriously downgrades or utterly destroys the property of the copyright owner.”);id. at 1008 (statement of Adolph Schimel, Vice President and General Counsel, Universal Pictures Col, Inc.) (“Our TV performance license fees depend on the coverage of potential viewers, the timing of the broadcast, the priority and exclusivity of performing rights which we can grant for the area, and other factors in the licensee’s area. . . . We feel strongly that our copyrights should not be freely transmitted, and thereby publicly performed, without our prior license, in this CATV manner. Our license for the original TV broadcast in other cities which the CATV operator captures and re-transmits from the air, does not expressly or impliedly license any further transmission by the CATV operator.”).
187. Id. at 1226 (statement of Ernest W. Jennes, Counsel, Association of Maximum Service Telecasters, Inc.) (“Besides the destruction of program exclusivity, [CATV] is unfair and inequitable. These multiple-channel CATV systems carry vast quantities of program material. If these systems went out into the marketplace to purchase rights to program material, the cost to the CATV’s—and the corresponding return to the copyright owners—would be substantial.”);Id. at 1335(statement of Arthur B. Krim, President, United Artists Group) (“If [CATV] is permitted to make use of copyrighted work without compensation, CATV will have a devastatingly destructive effect upon the business of producing and distributing television programs.”).
188. Id.at 196–97 (statement of Herman Finkelstein, General Counsel, American Society of Composers, Authors, and Publishers) (“No. (5) exempts performances on a so-called ‘booster’ . . . . We feel that it is appropriate to exempt such a further nonprofit transmissions . . . .”). The FCC stated as follows:

     We are concerned with the phrases ‘without any purpose of direct or indirect commercial advantage’ and ‘without charge to the recipients of the further transmission.’ We believe that the phrase ‘without any purpose of direct or indirect commercial advantage’ may prove to be troublesome. Where the translator is owned by or licensed to the commercial television station whose programs the translator is retransmitting, the purpose would clearly appear to include commercial advantage. However where the translator licensee is an individual or organization in the community served by the translator, there would appear to be countless fact situations which could raise difficult questions as to whether the purpose of establishing a particular translator was direct or indirect commercial advantage. Inquiry would have to be made into the purpose or intent which led to the construction and operation of a particular translator. In our view, the matter could better be handled by excluding from the exemption two particular classes of translators: those which are operated for profit, and those which are under common ownership with regular commercial TV stations (which have built them in hopes of improving their coverage). We would, therefore, favor eliminating the language ‘without purpose of direct or indirect commercial advantage’ and substituting language along the following lines: ‘where the further transmission is by a facility neither operated for profit nor under common ownership (wholly or partly) with the commercial broadcast station whose signal it is rebroadcasting.’”).

     Id. at 478–79 (statement of FCC). The Air Force stated as follows:

     The Defense Department singles out clause (5) of section 109 for support because that portion of the bill insures that nonprofit retransmission of radio and television programs by community antenna systems, CATV, and by TV translators, which merely retransmit a signal on a different higher frequency, will be a noninfringing activity.

     Id. at 1125 (statement of Maxwell C. Freudenberg, Patent Attorney, Department of the Air Force). Notably, the CATV operators wanted the nonprofit exception to be extended to for-profit CATV operation that didn’t alter the retransmission signal. Id.at 1251(statement of Frederick W. Ford, President, NCTA) (“For all of these reasons the ‘without charge or commercial advantage’ exemptions of the present bill are anomalies which fall short of a proper exemption for services which merely improve or assist reception but do not alter or add to the content of the original transmission.”).
189. Louis Nizer, on behalf of Disney, Universal Pictures, and Twentieth Century Fox, testified:

     The bill thus gives a special privilege to noncommercial CATV systems such as an antenna erected and shared by neighbors, as long as they do not alter or add to the content of the TV programs and as long as they do not charge for such service. As we interpret this provision, it would not permit large-scale operations by cooperatives which would make a regular or periodic charge to the recipients, but would permit bona fide contributions by neighbors to the actual cost of building and maintaining antennas, amplifying and distribution equipment for their personal use. While the necessity for such exemption appears doubtful, its economic impact on program suppliers and local television stations seems to be so limited that we do not oppose it.

     Id.at1362 (statement of Louis Nizer, Counsel, Twentieth Century-Fox Televisions, Inc., Universal Pictures, Inc., Walt Disney Productions, Inc., Warner Bros. Pictures, Inc., and others). Thomas E. Ervin, Vice President and General Attorney for NBC, joined with Nizer on the issue. See id.at 1918(statement of Thomas E. Ervin, General Attorney, National Broadcasting Company) (“[T]hose provisions of H.R. 4347 applicable to CATV systems are simply restatement of the present law. We support their enactment as clearly resolving any possible doubt as to the applicability of the copyright law to CATV systems.”).
190. Lisa Robin Stern, The Evolution of Cable Television Regulation: A Proposal for the Future, 21 Urb. L. Ann.179, 184 (1981).
191. Id. at 184 n.27.

192. “The bill thus gives a special privilege to noncommercial CATV systems such as an antenna erected and shared by neighbors, as long as they do not alter or add to the content of the TV programs and as long as they do not charge for such service. As we interpret this provision, it would not permit large-scale operations by cooperatives which would make a regular or periodic charge to the recipients, but would permit bona fide contributions by neighbors to the actual cost of building and maintaining antennas, amplifying and distribution of equipment for their personal use. While the necessity for such exemption appears doubtful, its economic impact on program suppliers and local television stations seem to be so limited that we do not oppose it.”

     1965 House Hearings ,supranote24, at 1362(statement of Louis Nizer, Counsel, Twentieth Century-Fox Televisions, Inc., Universal Pictures, Inc., Walt Disney Productions, Inc., Warner Bros. Pictures, Inc., and others) (emphasis added).
193. See id.at 1719–1727(statement of Douglas A. Anello, General Counsel, National Association of Broadcasters) (voicing support for extending public performance liability to CATV without mentioning the nonprofit exception or translators/boosters); see also id.at 1892–1893 (statement of Leon R. Brooks, Vice President and General Counsel, Columbia Broadcasting Systems, Inc.) (voicing support for extending public performance liability to CATV without mentioning the nonprofit exception or translators/boosters); Id.at 1029 ­­­­­ (statement of Adolph Schimel, Vice President and General Counsel, Universal Pictures Co., Inc.) (“As to the exemption under Section 109(5), if there be no charge to CATV recipients and no purpose of direct or indirect commercial advantage, we withhold any commitment at this stage, although we have some misgivings as to what the future may bring in this new and developing era.”).
194. See, e.g. ,id.at1277 (statement of Tom Creighton, Counsel, Texas Community Antenna Television Association) (“Thus, the CATV system enabled the broadcaster and copyright owners to achieve more satisfactory coverage of an audience within their intended coverage area.”);id. at 1245 (statement of Frederick W. Ford, President, National Community Television Association) (“We believe that the public interest in free and unrestricted dissemination of television to the public, including the millions of viewers connected to community and other master antenna systems, and the national television policy compel a conclusion that these systems should be free from copyright clearance requirements.”).
195. See id. at 1245 (statement of Frederick W. Ford, President, National Community Television Association) (referring to Mr. Cary’s comments: “As I indicated a moment ago, a CATV system does nothing more than provide its subscribers with a service for improving their television reception. . . . [it] is nothing more than a master antenna, the use of which is rented to the system’s subscribers and a working connection from the antenna to the subscribers’ sets.” ).
196. See id. at 1243 (statement of Frederick W. Ford, President, National Community Television Association) (“[The Subcommittee’s draft] would restrict home television reception by CATV subscribing members of the public by giving the holder of a copyright, for the first time, the exclusive right to control the reception of a telecast copyrighted work by a homeowner who uses a community antenna, which is basically contrary to the public’s interest in full dissemination of the protected works. . . . This pure element of geographic chance, whether due to unfavorable terrain or high buildings which interfere with television reception, has been ignored by those who seek to create an element of invidious discrimination between Americans on an arbitrary and unjustified basis which to me is contrary to our basic concept of equality of treatment under the laws.”).
197. 1966 Senate Hearings, supranote \h40, at7 (statement of Abraham Kaminstein, Register, United States Copyright Office) (“Beginning in February of this year, the House subcommittee has been holding twice-weekly executive sessions aimed at revising and reporting the bill. So far there have been 40 of these sessions . . . .”).
198. Id.(“Consideration of the CATV problem alone took well over a month, during which every aspect of this immensely complex problem was explored and a proposed solution was drafted, reviewed, and agreed upon.”).
199. 112 Cong. Rec. 24064–68 (1966) (summarizing principal provisions of H.R. 4347, as amended, and inserted into Record by Rep. Robert Kastenmeir (D-WI)).
200. Kaminstein, supra note 162 at 195–97.
201. 112 Cong. Rec. 24066 (1966) (emphasis added).
202. See 112 Cong. Rec. 24066 (1966).
203. H.R. Rep. No. 2237 (1966) (Submitted with H.R. 4347).
204. 113 Cong. Rec. 8580–8622 (1967).
205. United Artists Television, TVIV, http://tviv.org/United_Artists_Television (last visited Feb. 27, 2021).
206. United Artists Television, Inc. v. FortnightlyCorp., 255 F. Supp. 177, 180 (1966).
207. Id.at 181; see also H.R. Rep. No. 90-83, at 51 (1967) (“[The United Artists] decision, the first to be handed down on the question in the United States . . . .”).
208. See United Artists Television, Inc., 255 F. Supp. at 214 (deciding in favor of United Artists).
209. Id.at 214–15.
210. See Stern, supranote 216, 186–191 (detailing the FCC’s eventual decision to assert regulatory jurisdiction over CATV).
211. Id.at 191–92.
212. Id.at 192.
213. 113 Cong. Rec. 8580–8622 (1967) (debating the bill).
214. Rep. Moore had represented West Virginia in the House since 1956. WVU Libraries Opens Congressman Arch Moore Archives, Releasees Digital Photographs, WVU Today (Mar. 18, 2019), https://wvutoday.wvu.edu/stories/2019/03/18/wvu-libraries-opens-congressman-arch-moore-archives-releases-digital-photographs. He came from a long line of state electors and defied the odds as a powerful Republican in an overwhelmingly Democratic state. See also Adam Bernstein, Arch Moore Jr., Charismatic W. Va. Governor Convicted of Corruption, Dies at 91, Wash. Post (Jan. 8, 2015), https://www.washingtonpost.com/politics/arch-moore-jr-charismatic-wva-governor-convicted-of-corruption-dies-at-91/2015/01/08/e5857798-974d-11e4-927a-4fa2638cd1b0_story.html. A cunning politician, Moore was remembered for “his bravado on the stump, his backslapping demeanor and his ability to remember seemingly everyone’s name.”Id.He used these talents to win several years in the House and three terms of the West Virginia governorship.Id. So skilled was Moore that he defeated a (very) well-funded John D. Rockefeller IV for the latter position in 1972.Id.Thus, he was a lethal friend and enemy. And on the CATV issue, the CATV operators were lucky to call him a friend.
215. See 113 Cong. Rec. 8620 (1967) (“What Mr. Whitener does here is substantially submit for your consideration at an earlier time the proposals which I circulated to you by letter and by written comment late last evening.”).
216. United Artists Television, Inc. v. Fortnightly Corp., 255 F. Supp. 177, 179 (1966) (explaining that Fortnightly had CATV operations in both Clarksburg and Fairmont, West Virginia); West Virginia’s 1st Congressional District, Wikipedia, https://en.wikipedia.org/wiki/West_Virginia%27s_1st_congressional_district (last visited Feb. 27, 2021) (acknowledging Rep. Arch A. Moore representation of the First District of West Virginia, containing Clarksburg and Fairmont).
217. 113 Cong. Rec. 8599 (1967).
218. Harley O. Staggers Sr. Dies at 84, Wash. Post (Aug. 21, 1999), https://www.washingtonpost.com/archive/local/1991/08/21/harley-o-staggers-sr-dies-at-84/f76b1223-a904-4f86-acf1-1ace3c739f8b/ .This was a bet worth taking. Rep. Staggers was an unmatched political force. Until his retirement in 1981, he served 16 consecutive terms on behalf of West Virginia’s Second District. Frank N. Wilner, Staggers What? Time for a Name Change, Ry. Age (Jan. 9, 2018), https://www.railwayage.com/news/staggers-what-time-for-a-name-change/ .He demanded respect because of his reputation as “wholly and incorruptibly honest.” Lenora G. Kenwolf, A Social Political History of the National Radio Astronomy Observatory at Green Bank, WV 37 (2010) (MA Thesis, West Virginia University) (on file with author). More importantly, Staggers chaired the House Committee on Foreign and Interstate Commerce for 16 years—the longest in the Committee’s 200-year history. Dinner Named in Memory of Harley O. Staggers Sr., Cumberland Times-News (Sept. 20, 2019), https://www.times-news.com/community/dinner-named-in-memory-of-harley-o-staggers-sr/article_1818d1d5-185f-5b4e-93e2-c0555405bc90.html .
219. About Arch Alfred Moore Jr.,W. Va. Univ.: W. Va. & Reg’l Hist. Ctr., https://moore.lib.wvu.edu/about (last visited Feb. 27, 2021).
220. Herbert Tenzer, Democratic member of the House for New York, called out Rep. Moore on this point. 113 Cong. Rec. 8615–16 (1967) (statement of Rep. Herbert Tenzer) ( “Mr. Chairman, I participated in all of the sessions of this subcommittee. At no time did I ever hear any member of the subcommittee say a word—or read a communication from anyone—or did I hear a word spoken about interfering with the jurisdiction of the distinguished Committee on Interstate and Foreign Commerce. At no time did I hear any debate or any discussion or hear any testimony as to taking away the jurisdiction over communications from that distinguished committee. What we are dealing with here is protection of copyrighted material, and what the members of the Interstate and foreign Commerce Committee have sought to do is confound the House.”).
221. U.S. Copyright Office, 94th Cong., Second Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1975 Revision Bill, ch. 5, at 6 (Oct.–Dec. 1975) [hereinafter Second Supplementary Report] (unpublished manuscript) (on file with author).
222. This included: Rep. Arch A. Moore (R-WV), Harley O. Staggers (D-WV), Torbret MacDonald (D-MA), Wayne Hays (D-OH), Paul Rogers (D-FL), J. Arthur Younger (R-CA), John Dingell (R-MI), John E. Moss, and Basil L. Whitener. 113Cong. Rec.8599–8619.
223. See 113 Cong. Rec. 8600, 8602 (statement of Rep. Harley O. Staggers) ( “[M]y objection is that the Committee on the Judiciary and particularly the subcommittee of which the gentleman from Wisconsin [Mr. Kastenmeir] is chairman, went into the communications field and has undertaken to state what CATV could broadcast, how they could broadcast it, and at what times they could broadcast it. We say that those questions lie within the jurisdiction of the Committee on Interstate and Foreign Commerce, while the gentleman states that it comes under the copyright law.”).
224. Id.at 8600.
225. Id.at 8619.
226. Id.at 8620 (statement of Rep. Arch A. Moore) ( “What Mr. Whitener does here is substantially submit for your consideration at an earlier time the proposals which I circulated to you by letter and by written comment late last evening, and which were also the subject matter of my comments in the study of this bill during general debate on this bill.”).
227. Id.at 8620–21 (statement of Rep. William L. Springer) (emphasis added). The author also notes that Rep. Springer’s motivations might also have been constituent-based. Rep. Springer was a long-time resident of Champaign, IL and a friend of the author’s family. While living in Champaign, Springer was a notable friend of August C. Meyer Sr., founder of Midwest Television, Inc.—and one of the largest radio and television broadcasting companies in the country. Springer was an important ally of Meyer’s business interests while he served in Congress.
228. Id.at 8621.
229. Id. at 8622.
230. Id. at 8990 (statement of Rep. Richard Ottinger) ( “[L]ast Thursday . . . I offered my substitute striking section 111 primarily for two reasons: First, to head off an amendment by the gentleman from North Carolina [Mr. Whitener], which would have had the undesirable effect of exempting all CATV from any copyright protection whatsoever; second, because of jurisdictional problems between my own committee, the Committee on Interstate and Foreign Commerce, and the Committee on the Judiciary. After consultation with the two committees, the jurisdictional problem has now been worked out as I understand it.”).
231. Id.at 8991.
232. Id.at 8990–91 (statement of Rep. Richard Ottinger) ( “In view of the dangers of wholesale copyright exemption posed by the amendment of the gentleman from North Carolina [Mr. Whitener], however, and in view of the agreement made between the commerce and the Judiciary Committees, I think my amendment, deleting CATV altogether from this bill and leaving its copyright coverage to the courts for the time being, is the best available disposition of the matter.”); see also 113 Cong. Rec. 10408 (1967) (statement of Rep. Richard Ottinger) (“The issue I presented to the House, however, was whether during the period that may elapse before the committee on Interstate and Foreign Commerce considers overall regulation of CATV and the Judiciary Committee considers any pertinent copyright provision in connection therewith, CATV should be left fully exempt from copyright coverage as proposed by the gentleman from North Carolina [Mr. Whitener], and the gentleman from West Virginia [Mr. Moore], or whether during this interim CATV should be fully covered as would be the effect of my amendment. Passage of H.R. 2512 with my amendment means that, should it become law in its present form, all CATV transmissions subject to its provisions will be included within its protections.”).
233. As Rep. Emanuel Cellar (D-NY) later recounted in a statement published in the New York Journal, “[t]he question quite seriously arises for me whether the bill that passed the House, even without any provisions bearing on cable television, could not appropriately have been allowed to become law, leaving the unresolved CATV and other issues for a later time. Proposals to disembarrass copyright law revision from the incubus of the CATV problem by enacting a so-called “bare bones” bill has not met with Senate approval.” 116 Cong. Rec. 37529 (1970).
234. See id. at 37529–30 (statement of Rep. Emanuel Celler) (“We now know that no revision measure was enacted in 1967 or in 1968 or 1969 and that none will have been enacted in 1970. I guess we are here, or let us say I am here to speculate about the reasons why progress in copyright law revision has slowed down to the point where some assert that it is negative. . .. On the floor of the House these provisions ran into serious difficulties of the CATV issue is that it involves both the regulation of communications and compensation of copyright owners. . . . “[T]he situation in which the proponents of revision find themselves leaves them with little choice other than to close their ranks and continue in the coming year to hammer out the terms of an overall copyright law revision. This is so because the ‘bare-bones’ proposal has been rejected and because it is too soon to fall back to a situation in which individual issues are offered for piecemeal adoption.”).
235. Second Supplementary Report, supra note 248, ch. 5, at 11 (“Throughout this period there were countless private, semi-private, and public meetings aimed at negotiating a solution acceptable to the private interests involved.”); 113 Cong. Rec. 27588 (1967) (statement of Sen. John L. McClellan) (“The subcommittee has been confronted with a situation in which, before the Congress had an opportunity to complete action on the revision bill, a number of lawsuits for copyright infringement might be filed against CATV systems. This could disrupt the television viewing of millions of our citizens. Therefore, consideration has been given to the necessity of legislation providing for a temporary suspension of judicial remedies for copyright infringement by CATV systems . . . . Before any such legislation was introduced, all interested parties participated in a series of meetings. As a result of these discussions there has been submitted to the subcommittee certain representations on behalf of the major owners and distributors of television film programs. . . .[W]hile the parties are negotiating contractual arrangements and discussing appropriate legislative formulas, the copyright owners will refrain from instigating legal action against CATV systems.” (emphasis added)); S. Rep. No. 91-519, at 6 (1971) (“During the first session of the 90th Congress, the subcommittee completed the public hearings on legislation for a general revision of the copyright law. The hearings were conducted on S. 597, which had been introduced at the request of the Librarian of Congress. During the subcommittee hearings on S. 597, the House of Representatives passed a copyright revision bill, H.R. 2512, and this has also been under consideration by the subcommittee. Although no action on copyright law revision was taken by the subcommittee during the second session, other than to approve legislation providing for a 1-year extension of expiring copyrights, there were a number of significant developments concerning several of the major provisions of this legislation.”).
236. United Artists Television, Inc. v. FortnightlyCorp., 377 F.2d 872, 874 (2d Cir. 1967).
237. FortnightlyCorp. v. United Artist Television, Inc., 392 U.S. 390, 393 (1968).
238. Id. at 401.
239. Neither Justice Douglas, Marshall, nor Harlan participated in the decision. Id.
240. See id. at 395 (“At the outset it is clear that the petitioner’s systems did not “perform” the respondent’s copyrighted works in any conventional sense of that term, or in any manner envisaged by the Congress that enacted the law in 1909. But our inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. In 1909 radioitself was in its infancy, and television had not been invented.”).
241. Lewis J. Paper, Cable TV — The Time is Prime for Regulation, N.Y. Times, Nov. 22, 1981, https://www.nytimes.com/1981/11/22/arts/cable-tv-the-time-is-prime-for-regulation.html .
242. Stern, supra note 216, at 192 (1981) (“The FCC adopted further rules in 1966, extending the mandatory carriage and nonduplication rules to all cable systems.”). It is important to note that whether the FCC had this authority was an open question that required multiple Supreme Court opinions. United States v. Southwestern Cable Co., 392 U.S. 157 (1968); United States v. Midwest Video Corp., 406 U.S. 649 (1972).
243. Stern, supranote 216, at 193 (1981).
244. See id. at 193–94.
245. 115 Cong. Rec. 1404 (1969) (statement of Sen. John. L. McClellan). Notably, in Aereo, Justice Breyer acknowledged that “one of Congress’ primary purposes” in adopting the Copyright Act of 1976 was to “overturn” Fortnightly. ABC, Inc. v. Aereo, Inc., 573 U.S. 431, 439 (2014).
246. S. Rep. No. 91-519, at 7 (1969) (“Although there was general agreement that CATV systems should make a reasonable payment for the use of copyrighted materials, there was substantial disagreement as to the mechanics of determining and collecting such payment and with respect to the nature of protection to be accorded to copyrighted works.”).
247. See S. Rep. No. 91-1219, at 9 (1970) (discussing the creation of the compulsory license scheme); Second Supplementary Report, supra note 248, ch. 5, at 12–13 (discussing the creation and introduction of the compulsory license scheme into the bill).
248. Second Supplementary Report, supra note 248, ch. 5, at 13.
249. Kaminstein , supra note 162, at 209–10.
250. S. Rep. No. 91-1219, at 4 (1970) (discussing the approval of the bill through the Senate Subcommittee).
251. Kaminstein, supra note 162, at 210.
252. Id. at 210–11.
253. Id. at 213.
254. See 119 Cong. Rec. 9388–89 (discussing the consensus agreement between the FCC, special interests, and drafters of the Copyright Act of 1976).
255. Compare Kaminstein, supra note 162, at 210, with 17 U.S.C. § 111 (2012).
256. Second Supplementary Report, supra note 248, ch. 5, at 13–14.
257. See id. at 13.
258. Id.at 14 (“The amended copyright bill was also strongly criticized by the [FCC], primarily on the ground that it left the FCC with too little flexibility to deal with the problem of cable retransmissions.”).
259. See id. at 15.
260. Dennis Hevesi, Clay T. Whitehead, Guide of Policy That Helped Cable TV, is Dead at 69, N.Y. Times (July 31, 2008), https://www.nytimes.com/2008/07/31/washington/31whitehead.html .
261. Adam Bernstein, Nixon Advisor Revolutionized Cable TV, L.A. Times (Aug. 2, 2008, 12:00AM), https://www.latimes.com/archives/la-xpm-2008-aug-02-me-whitehead2-story.html .
262. Id. See also Tim Wu, The Master Switch: The Rise and Fall of Information Empires 177 (2010) (“In the 1960s, cable was a technology serving small towns and remote localities, barred by federal law from expansion. It seemed doomed to being but the handmaid of broadcasting. Indeed, another version of history, the cable networks would have emerged only as offshoots of NBC, CBS, and ABC, as has been the fate of cable in other major economies, among them Japan and Germany. But the Nixon administration had a different vision for cable. Nixon’s young head of communication policy, Clay Whitehead, ran the Cabinet Committee on Cable, which foresaw a life for the medium as a highly deregulated common carrier.”).
263. James J. Popham, The 1971 Consensus Agreement: The Perils of Unkept Promises, 24 Cath. Univ. L. Rev. 813, 814 (1975).
264. See id.; see also 1973 Senate Hearings, supra note 41, at 295–296 (statement of Jack Valenti, President, Motion Picture Association of America, Inc.)
265. 1973 Senate Hearings, supranote 41, at 295–296(statement of Jack Valenti, President, Motion Picture Association of America, Inc.).
266. Id. (“CATV systems were to be permitted to import programs from distant stations subject to certain limitations depending on the size of the market into which the importation was to take place . . . .”).
267. Id. (“. . . subject to the non-duplication by cable systems of programs available in the same market from local television stations.”).
268. Id. (“The rules will, of course, be put into effect promptly.”).
269. Though not explicit.
270. Second Supplementary Report, supra note 248, ch. 5, at 18.
271. S. Rep. No. 92-935 (1972).
272. 119 Cong. Rec. 9389 (March 26, 1973) (statement of Sen. John L. McClellan) (introduction of S. 1361).
273. See generally 1973 Senate Hearings, supra note 41, at 278–316 (statements from broadcasters, copyright owners, and cable operators during the August 1, 1973 hearing).
274. See id.at 278 (statement of Jack Valenti, President, Motion Picture Association of America, Inc.) (“Now, all parties to this agreement pledged themselves to support the concept of a speedy passage of the legislation, and also the concept of an arbitration tribunal that would be put in the bill if the parties could not agree on a private schedule of fees.”).
275. See, e.g.,Id. at 283.
276. Id. at 303–304.
277. Id. (emphasis added).
278. The CCO offered their own version of the nonprofit retransmission exception found below. It is practically identical to what was eventually adopted by Congress in 1976.

     §111. Limitation, on exclusive rights: Secondary transmissions
     (a) Certain secondary transmissions exemption. – The secondary transmission of a primary transmission embodying a performance or display of a work is not an infringement of copyright if:
     (4) the secondary transmissions is not made by a cable system and is made by a governmental body, or other non-profit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.

     Id.
279. This is also found in their proposed statutory language:

     §111. Limitation, on exclusive rights: Secondary transmissions
     (c) Secondary transmission by cable sytems –
     (1) Subject to the provisions of clause (2) of this subsection (c), secondary transmissions to the public by a cable system of a primary transmission made by a broadcast station licensed by the [FCC] and embodying a performance or display of a work shall be subject to compulsory licensing upon compliance with the requirements of subsection (d) in the following case:
     (B) Where the community of the cable system is in whole or in part within the local service area of the primary transmitter;
     (2) notwithstanding the provisions of clause (1) of this subsection (c), the secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the [FCC] and embodying a performance or display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by section 502 trough 506, in the following cases:
     (B) Where the community of the cable system is in whole or in part within the local service area of one or more television broadcasting stations licensed by the [FCC] and –
     (i) the content of the particular transmission program consists primarily of an organized professional team sporting event occurring simultaneously with the initial fixation and primary transmission of the program; and
     (ii) the secondary transmission is made for reception wholly or partly outside the local service area of the primary transmitter; and
     (iii)the secondary transmission is made for reception wholly or partly within the local service area of one or more television broadcasting stations licensed by the [FCC], none of which has received authorization to transmit said program within such area.

     Id.
     
     
280. Id. at 377 (statement of Vincent T. Wasilewski, President, National Association of broadcasters).
281. Id. at 398–399, 424. (statement of David H. Foster, President, National Cable Television Association) (“Mr. Chairman, we have supported the concept of cable television’s paving [sic] copyright fees since 1968. . . . Continually since the consent agreement . . . [the parties] met in extensive negotiating sessions to determine whether or not there could be a meeting of the minds between the parties on what night [sic] be a reasonable copyright fee. . . . We found the parties positions were far apart . . . Primarily because cable television is still in its infancy. It is a very small industry. It is primarily operating in rural areas, in small towns, and the major big-city markets . . . The motion picture people have told us time and time again that they are not looking at the small systems for the revenues. They are looking for the large, big city systems that are yet to be built. . . . By the same token, Section 111(a)(4) exempts non-profit and government owned CATV systems from the requirement to pay fees. Here again, it would seem more prudent public policy, in light of our national policy encouraging private enterprise, to leave these two reception and distribution facilities on an even competitive basis by striking Section 111(a)(4).”).
282. Id. at 424. (statement of David H. Foster, President, National Cable Television Association) (“By the same token, Section 111(a)(4) exempts non-profit and government owned CATV systems from the requirement to pay fees. Here again, it would seem more prudent public policy, in light of our national policy encouraging private enterprise, to leave these two reception and distribution facilities on an even competitive basis by striking Section 111(a)(4).”).
283. Id. at 611 (statement of Jack Valenti, President, Motion Picture Association of America, Inc.).
284. S. 1361, 93d Cong., §111 (a)(4), reprinted in 1973 Senate Hearings, supranote 41, at 15 (now enacted as 17 U.S.C. § 111(a)(5)).
285. H.R. Rep. No. 94-1476, at 88 (1976); H.R. Rep. No. 94-1733 (1976).
286. H.R. Rep. No. 94-1476, at 92.
287. See Answer to Amended Complaint, supra note 14, at 2; see also 17 U.S.C. § 111(a)(5) (2012).
288. As shown by the opening text of the Communications Act of 1934, 47 U.S.C. § 151.
289. The FCC has consistently held that local station stability was key to achieving national access to television. See Stern, supranote 216, at 188 n.57 (1981).
290. See, e.g., 1965 House Hearings, supra note 24, at 1226 (statement of Ernest W. Jennes, General Counsel, Maximum Service Telecaster, Inc.) (“Because the same television programs are broadcast in many different markets, the importation by CATV into such well-served cities of the signals from stations in other markets means that the exclusivity of the local stations to many—if not most—of its programs, will be destroyed. To the extent that a program is viewed on imported channel, the benefit of exclusivity, for which the local station has bargained, is destroyed—to the damage of the local station, the copyright owner and, ultimately, the public.”);Id. at 1335 (statement of Arthur B. Krim, President, United Artists Group) (“The usual [network] license contract in syndication does not grant the right to authorize the telecast of our programs over additional stations and prevent the licensee station or sponsor from authorizing a community antenna to perform the program. These restrictions are in keeping with the underlying principle of geographical limitation that is central to all television release. . . . [I]t can readily be seen [then] that when a CATV system brings programs from a distant city, it plays havoc with every existing licensing system and either seriously downgrades or utterly destroys the property of the copyright owner.” (emphasis added)); 1973 Senate Hearings, supra note 41, at 303 (statement of Jack Valenti, President, Motion Picture Association of America, Inc.) (“Section 111 would exempt completely from any copyright law provisions secondary transmissions when made at cost by either governmental bodies or nonprofit organizations. . . . [T]his provision was concerned with the operations of “nonprofit ‘translators’ or ‘boosters’ which do nothing more than amplify broadcast signals and retransmit them to everyone in an area for free reception. . . .” These translators and boosters have always been subject to FCC regulation and require retransmission consent of the originating station under § 325(a) of the Federal Communications Act. However, the language of the exemption as formulated in § 111 would be equally applicable to cable systems which are operated by governmental bodies or nonprofit organizations. . . . There are a large number of nonprofit organizations in the United States. Many of them operate big enterprises. Moreover, there are already in existence at least 15 municipally-owned CATV systems and there is an increasing drive across the country for municipal ownership of cable systems. . . . The copyright owners are concerned that increasing governmental or non-profit ownership of cable systems may deprive them of license fees for the use of their product. A free ride for these entities cannot be squared with the achievement of the public purpose which underlies the copyright system. That purpose is to promote the useful arts by granting compensation adequate to foster creativity. A legal requirement that copyrighted film programs be available to nonprofit and governmental users for free is no less repugnant to the purpose of the copyright system because the user does not intend to make a profit.”).
291. See 112 Cong. Rec. 24066 (1966) (“Except for . . . passive common carrier activities covered by subsection (a), a secondary transmitter is fully liable if he does any of the following: (1) alters program content; (2) originates programs (with some limited exceptions); (3) charges for particular transmissions; (4) picks up primary transmissions not intended for reception by the public at large; (5) operates outside the primary transmitter’s normal area and has not recorded his identity in the Copyright office; (6) operates outside the primary transmitter’s normal area and within an area adequately served by other primary transmitters; or (7) operates in any area normally encompassed by one or more transmitting facilities other than the primary transmitter, if he has received notice that one of them has already acquired the exclusive right to transmit the copyrighted work in that area.” (emphasis added)); 1965 House Hearings supra, note 24, at 36 (statement of George D. Cary, Deputy Register, United States Copyright Office) (“A community antenna system is much more than a passive device or service. It is an extremely complex transmission system which does essentially what a regular television broadcaster does; namely, it transmits programs to the public. . . . CATV systems effectively deprive the copyright owner of control over his work. In many cases, for example, motion pictures or syndicated series, where the broadcasting of a work is licensed for a particular limited territory and audience, a CATV transmission of a broadcast to subscribers in another area can mean the actual loss of the market for broadcasts in that other area. Multiplied many times throughout the country this loss can be very serious.” (emphasis added)).
292. H.R. Rep. No. 94-1476, at 92 (emphasis added).
293. Amended Complaint, supra note 6, at ¶ 12.i-iii (“Locast departs from the activities of a mere booster of broadcast signals in a variety of ways. Among other things, Locast . . . strips from the over-the-air broadcast signals the Nielsen watermarks that measure viewing for local and national advertisers, thereby endangering broadcasters’ advertising revenue.”).
294. In response to this accusation, Goodfriend claims that he “den[ies] that [Locast] purposefully strips . . . the Nielsen watermarks.” Answer to Amended Complaint, supra note 14, at ¶ 12.iii (S.D.N.Y. Nov. 13, 2020) (emphasis added).
295. See Locast: Non-Profit Retransmission of Broadcast Television (2018), https://www.locast.org/news/press-releases/locast-white-paper/.
296. See id.at ii.
297. Authors of the Locast white paper repeatedly refer to the service as a “digital translator.”Id. passim.
298. As of this writing, Goodfriend has strategically placed antennas in 31 well-populated cities, seven of which are amongst the most populated ten cities in the United States. Select your city, Locast, https://www.locast.org/cities/501 (last visited Mar. 20, 2021); The 200 Largest Cities in the United States by Population 2021, World Population Review, https://worldpopulationreview.com/us-cities(last visited Mar. 20, 2021).
299. See, e.g., 1965 House Hearings, supra note 24, at 1226 (statement of Arthur B. Krim, President, United Artists Corp.) (“In short, ‘CATV unlimited’ is a new type of CATV with capabilities and operations only faintly resembling historic CATV. As CATV’s purpose and operations expand beyond providing an auxiliary service, CATV becomes a threat to the public interest in free, diverse, and competitive, local and area television broadcast services. In essence, this threat derives from CATV’s ability to import multiple television signals from many distant stations into cities where local and area television stations are already reaching the viewing public. Because the same television programs are broadcast in many different markets, the importation by CATV into such well-served “cities of the signals from stations in other markets means that the exclusivity of the local station as to many—if not most—of its programs will be destroyed.”).
300. See Answer to Amended Complaint, supra note 14, at ¶¶ 4, 12.ii, 44, 46, 48 (S.D.N.Y. Nov. 13, 2020).
301. See id. at ¶¶ 12.i (“Defendants admit that in any given local DMA that Locast serves, [it] functions by capturing the over-the-air signals, transcoding the signals into digital formats viewable on internet-connected devices, and then streaming the signals over the internet to registered users at the users’ requests on internet-connected devices located within the local market.”).
302. Jeanne C. Fromer & Christopher Jon Sprigman, Copyright Law: Cases and Materials 10 (2d ed. 2020).