# Brief for the Federal Communication Commision in Opposition — Federal Broadcasting System, Inc. v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1006%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Federal Communication Commision in Opposition - **Published:** January 1, 1959 - **Citation:** 361 U.S. 822 ## Text m . 2 E INDE xX | ' ‘Seribag -. & ‘ rs Page Opinions below wecnteceewi's ms cen ae 1 Jurisdiction: | ¥ he 1 \. Question presented s srpesoc onan Aatimnnieaeithttianwencs Mhicdaheainss ; 2 oe Statute involved ... RU ERE eee OLA aneinsends 2 ‘Statement Hinge cceecipilons case es Me. Rial Ca 3 ‘Arguméht =e Eiimcioen Be i Pee 7 Conclusion... pete ebtieiads ae Ee 10 ene | Cases: ~~ Caples Sompany, The v. United States, 243° F. 2d 232 . siete Bipiatlnasiiess ed tciiasataiste pale a. = e Federal Broadcasting pare v. Federal Commu- nications Commission, 231 F. 2d NN 4 ‘Statutes and Regulations: ___._*___.Federal-Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C, Supp. V, 151, et seq.: j vai Section 309(c) . ee | re Section 325 (a) ntnewsenteneastnsteetenenssanseveoqectsneencscamuen, Oy @, T 17 F.R. 4711..=....... iihiecbhcmescus Pe ae a PPE 5° sl Bean rcp eT “5 a “ t , y mR . sion ‘is reported at 24 F. C. In the Supreme Court nf the Huited States ae Ps ‘Oc TOBER TERM, 1959 a oe anny iy y Q / : | . ea i . 4 = No. 168 —_— RAL BrdAve ASTING : aun M, INC, PETEPIONER - aa a le _Febe RAL. ~ COMMUNICATIONS COMMISSION AND 7 WBBF, -— : ‘he - eee - ON PETITION FOR A WRIT OF: CERTIORARI TO THE | UNITED STATES COURT OF APPEALS FOR THE : _ DISTRICT OF COLUMBIA CIRCUIT. v4 sik : ~. : hoes a2 BRIEF FOR THE FEDERAL PehMUNICARSONS : COMMISSION IN. OPPOSITION pose ke) P Oe aoe . : tee OPINIONS BELOW | a ‘The opinion of the court ss (Pet. a 25-28) is reported at 266 F.24 922. The detision, and .order . of the Federal C munigations Commis" S; 3 a Sap : ‘ ; ~* Se . ee JURISDICTION. Ae eee The judgment of. the: court of appeals Was entered on April 2 2, 1959. The petition for certiovari Wits Oe (1) an : ; keer ; ee me ) filed on July Zz 1959. “The jurisdiction of this Court | er : iS invoked under 28 U.S.C. 1254(1). « ae QUESTION PRESENTED : W hether the. Commission properly iiiehad peti- -, tioner’ s protest | against the grant of license renewal -of reali station | WBBF on the gr ounds’ that WBBF had not engaged. in. conduét contrary to the public _ interest or otherwise demonstrated unfitness to be a broadcast licensee by refusing to. grant petitioner's request for blanket atithorization to rebroadeast | all WBBF programs in which W BBE. had no Sbistizes ary interest. | ar 3 canis STATUTE INVOLVED ° a ‘The per tinent provision of ‘the Communications hw of 1934 (48 Stat.. 1064, as amended, 47 U.S,C., Sup). V. 151, et seq.), in addition to those set forth in the Petition, pp. 3- 4, is as follows:. ” nese aa oe i gil See. 399{c) WwW hen, any instrument-of authori- zation is ‘granted, by the-Commission without a -. hearing as provided in subsection (a). of this : sec- tion, such grant shall remain “subject to protest. as hereinafter provided for a peridd of thirty | ‘days. During such thirty-day period any party -in interest may file a protest under oath directed to such grant and request a hearing on said ap- plication so granted. Any protest so filed shall - he Served on the grantee, shall contain such alle- gations of fact as will show the protestant to be a party in jnterest, and shall specify with par- | ticwlarity the facts relied upon by the protestant - ~ as showing that the-grant was improperly made. ° Ae Aves uae < . or would otherwise not be in the public interest. The Commission shall, within thirty days of the filing of the protest, render.’a decision making’ ° ‘findings as to: the sufficieney of the protest in meeting the above requirements; and, where it. so finds, shall designate the’ application for hear-" ing upon issues relating-to all. matters specified in: the. protest: a is grounds for setting aside the , » -grant, except with respect to such matters as to. which the Comiission, after affording pro- -testant an‘opportunity for oral argument, finds, for reasons set forth in th= decision, that, éven if the facts alleged were to’ be proven, no grounds for setting aside the grant, are presented. * * *° STATEMENT | On May 20; £954, the Federal Communications Com-_ mission granted the application of .WBBF, Inc. for ‘renewal of its standan(l broadcast license in Rochester, | New. York (R. 7).. Petitioner filed:a protest against this action _pursuant to Section 309¢c) of the Com- munications Act, alleging that renes wal was contrary to the. public interest for two reasons :. (1) petitioner, who operat¢d standard broadeast Station WSAY in Rochester, had requested blanket | permission from _ “WBBF to rebroadcast any of its programs for which - a network or Sponsor had “paid production costs, and. W BBF had refused such permission; and (2) WBBF, Inc.,- which also owned Station .WGVA “in Geneva,. New York, was offering advertisers. a lower, com- .— bination rate if they would buy time on both stations, | thus allegedly competing unfairly + with petitioner's station and impatring its ability to operate in the st eee =? / public interest (R. 9). The Comnijssion, on July 16, - 1954, dismissed the protest on the ground . that the protest did’ not meet the statutory rye ‘Section 309(e) of’ the Communications Act, aut facts were not. specified with particularity Sater E why WBBF’s license should not be renewed messy 9-10). -tioner had met the statutory test.as to particularity. The court “of are sidfiacd, holding that peti- _ #cderal Broadcasting System v. federal Communica- * tions Commission, 231 F; 2d 246 (C.A.D.C.). Upon’ ‘remand, the Commission,, i in conformity w ith the ap- . pended provisions of Section. 309(¢), ordered oral argument on the question whether, if the facts al- 3 leged in the yrotest were to be proven, grounts would .be presented for setting aside the grant of W BBF's renewal application (R. 1-7). Thereafter, on March 14, 1958, the Commission issued its decision rejecting petitioner’s protest. on. the merits and afirmips the renewal of WBBF’s license (R. 7-26). | ~ The facts, with respect to the rebr oadcasting issuc, were that petitioner had requested permissior .*to rebroadcast” WBF's programs’. when they were “programs of a” sponsor, or sponsors,: which desire, or May-desire their pr ograms, rebroadcast by —— WSAY” ¢R. 18). Such “blanket. _ permission”, . peti- _tioner had informed WBBF, was necessary becausc it “intend[ed} to negotiate with all of [the sponsors. of such programs ] for the rebroadcasting - of their programs, and’ we must be able to assure them that their programs can_ be rebroadcast as far as. your ° ? o ~ station is concerned, béfore we can proceed further . in our Negotiations”. (R. 19, n. 11), WBBF nad, rejected | petitioner's request stating (R:- 18): In view of the blanket;: uriqualified, unspecifid, and unlimited nature of your: request, and the > absence. of such pertine nt infétmation as the ‘te particular programs w hich you wish to rebroad- ' cast, the — When you wish to carry them, the terms’ and. arrangements , which. you. are willing | _ to offer, ° ete, we cannot determine that the. pubdlie - interest - would be- seryed by. eranting . ‘your request. / : The Commission, in: concluding: that WBBE* Ses. fusal to ‘grant such blanket permission for- rebroad- east pr ivileges Was not grounds for denyine. renewa! of its license, referred first (R.. 20-21); “as back- ground, ”.to prior rule-making. proceedings, in "1952 concerning rebroadeasting (Report - on: Amendment: - ‘of Rebroadeasting Reles AT ERAT IN Tin hich it had construed’ the term ° “originating station”, a»- pearing in Section 32 5(a) of the Comfnunications Act, as referring solely to the stations. w hose signals | are physically intercepted and retransmitted, _irre- ; ‘spective of the source or-ow nership of the progr: 2m material involved (17 F.R. at: 4712). . It also re- ferred to a subsequent order in this proc eeding in’ ~ whith the Commission had: set forth in detail the’ circumstances under w hich refusal by Such an origis nating station. of permission to rebroadcast its sig- oo might .be an. ablise of: its power .undér Section 325 (a), and thus iaise public interest questions (17 FR. 1030910). - ae ; _ Turning to the civeumstances of the instant case, vam . : cae 6 ; o jeg to ‘Show an ‘abuse of power . on WBBF. (ht. - 21-23), the Commission; noting that WBBF and the pitionoe ‘aarue the same area in’ and’ around | Rochester; found that WBBF was justified in deny-— ing the blanket authorization. petitioner requested in the @bsence of (1) mor 'e specificity as-to the enact cir- cumstances ‘under which’ particular, programs would be rebroadcast, of (2) a showing that WBBF “acted .. ° in concert with another station. or other interests in bssiarai's the request (R. 21-23).' Rejecting peti-. , _ tioner’s ; arguments on other matters not here perti- | b nent, the Commission concluded that the protest, pre- sented no grounds for setting aside WBBF’s license renewal and affirmed the grant (Kk. 26). °.* The court of appeals unanimously affirmed the- action of the Commission (Pet. gApp. 25-28), hold-. ing (Pet. App. 27) that the Commission cor rectly rejected the rebroadcast portion of petitioners pro- test “because the request for rebroade: ist. author- ity was patently unreasonable in scope”. The court - did not:reach the question of the validity of the Com- -mission’s s interpretation of the rebroadcast provisions of Sectiodt 325 (a), -as expressed in: the 1952 rule- ” ~' It also: stated that requiring the isnar eas of: blanket re- broadcast requests woul® be inconsistent with the Cymmis- sion’s previous interpretations of the meaning of Section 325(a), and a refusal of rebroadcasting privileges would raise questions as to a station’s ‘qualifications only where * * the request is to rebroadcast a program “having, such: public service aspects as to make its Wide disse mination. to the pub- lic clearly desirable” and the refusal ‘is without reason or based cn unreasonable grounds (R. 23). The- court of ap- | peals found it unnecessary to pass upon the validity of these alternativ e gr ounds. : specificity making ee to amend the rebroaieast rules (ord. 7? | | ARGUMENT Sy iaer The betition: for certiorari presents no “question ‘of general importance warn anting review, Petitioner’s principal - contention, that the Commis- sion has misconstrued. the term “originating station” in Section 325(a). of the Communications Act (Pet. t. 17), is not properly presented by this case. Tho court. below, affirming the Commission determina- tion that WBBF's refusal, of bl: inket rebroadeanst rights. to petitioner did_ not “constitute sufficient “grounds for setting aside WBBF’s license renewal”, found it. unnecessary to pass on the Validity of: thi 1952 Commission rule-making proceedings in which . the ‘Commission had interpreted the term “origi- Which petitioner made upon WBBF wis “patently fore “torrect” in finding WBBF “justified in. nage ‘nating station” (Pet. App. 27, n. 6). The court: ‘decided that the request for rebroadcast @&uthority ° ‘unreasonable”’, and that the Commissi sion was there- «— a ing to grant such authority” in the absence ‘of “more 9, as to the details of the proposed rebroad- casts, or any showing WBBF had acted in concert With any other party. in, refusing the request (Fret. App. 27). Petitioner urges that if, as it conte nds, WBBF Was not: the~ “originating station” of the progitams in issue, it would have no power under: Section 32: a (a) to deny rebr oadeast authorization, as it did here. Therefore, it is argued,’ the proper construction of theastatute : “Was necessr‘lv before the court of ap- ‘ ry . : 8 ; peals. However, assuming arquendo that the Com- ~ mission’s cgnstruction of “originatitig’ station.” Was - erroneous, it would not follow that its decision to” * yenew the’ WBBF Miconse would have to be set aside, for no question is raised-as to WBBF’s quali- . fications to be a‘licensee merely because. it. aeted “as an originating station, in accordance wit! ‘the set- tled rulings of the Commission, and passed upor, , requests for rebroadcast permission made to it by the petitioner.” If petitioner believes, contrary to the position of the Commission, that rebroadcast permis- sion is not required where a station has no-ownership | interest in the program material transmitted, it is free to bypass" WBBF altogether and deal directly with the network or program ‘ponsor. And if’ the outstanding: Commission determination stands. in the _ Waypof such negotiations , petitioner may be in a’posi- * ” Han 46 seek a declaratory ruling as to its rights ine the courts, presumably after first seeking such: a_ ruling from the Commission. See The Caples: Com= pany v. United States, 243 °F, 2d 232 (C.A.D.C.).. But it cannot challenge WBBF's qualifications to be ‘a licensee through a collateral attack upon the Coim- -mission’s rules -under which WBBF. operated. ? Nothing in’ the #ecord before the Commission indicates WBBF did,. or threatencd to do, anything other than re- spond.to a request petitioner mace to it. WBBF is not al- leged to have brought pressure upon. the sponsors or net- work to hate them refrain> from authorizing .petitioner to rebroadcast the programs in ‘issue or to Kave- threatened: petitioner with any action should it rebroadcastNeii pro- giams without: securing WDBF's permission. ome . a : Petitioner's subsidiary challenge (Pet. 17-2 2). to. - the specific. Commission finding that its blanket re- quest for rebroadeast rights was deficient consists, - to a large degree, of an attack upon the criteria: an- nounced by the Commission in its 1952 rule-making . proceedings for determining Whether refusal of a_ particular request for rebroadcast privileges is un- reasonable (see Pet. 18-21). The court below, how- ever, did not pass upon the propriety of the criteria in affirming the Commission’s action here. Nor did the Commission itself purport :to apply these criteria in ruling upon WBBF’s conduct. Instead, it con- - cluded (R. 22)’ that WBBY’s refusal to grant the sweeping ‘rebroadcast. permission petitioner sought - was justified because of the lack of pertinent infor- mation ‘in petitioner’s blanket request upon which a proper determination by the station as to whether permission should be granted or denied could have ———been= based. This determination was clearly within’ the Commission's authority. 10 CONCLUSION | The petition for certiorari should be denied. . Respectfully submitted, J. LEE RANKIN’ Solicitor General. - ROBERT A. BICKS, Acting eros Attorney General. RICHARD A. SOLOMON, | Attorney. — JOHN L, FITZGERALD, ai ieee a General Counsel, MAX D. PAGLIN, Assistant General Counsel, RUTH V. REEL, > cas tie -- a eae Ps _____Counsel,. en a ee ee Sacceceaket de aaa ene Federal Communications Commission. JULY 1959 - - aoe - RR ou. 8 MOVERNMENT PRINTING OFFice, 1959 . S1s661 120 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1006%3A5. Public record. Not legal advice.