Amicus Curiae Brief — FCC v. WNCN Listeners Guild

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SUPRE ye COUpT

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WASHINGTON, pc peo

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

Nos. 79-824, 79-825,

79-826, 79-827

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, INSILCO BROAD-

CASTING Corp., et al., AMERICAN BROADCASTING

COMPANIES, INC., et al., NATIONAL ASSOCIATION

OF BROADCASTERS, et al.,

Petitioners,

Uv.

WNCN LISTENERS GUILD, et al.,

Respondents.

MOTION OF THE WASHINGTON LEGAL

FOUNDATION FOR LEAVE TO FILE A

BRIEF AMICUS CURIAE AND BRIEF OF

AMICUS CURIAE, THE WASHINGTON

LEGAL FOUNDATION

DANIEL J. PoPEO

PauL D. KAMENAR

1612 K Street, N.W.

Suite 605

Washington, D.C. 20006

(202) 857-0240

Attorneys for Amicus Cunae

WASHINGTON LEGAL FOUNDATION

June 5, 1980

farrgior OC + THIEL PRESS - 202) 638 452)

(t)

IN Toth

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

Nos. 79-824, 79-825,

79-826, 79-827

FEDERAL COMMUNICATIONS COMMISSION AND

UnitEp STATES OF AMERICA, INSILCO BROAD-

CASTING Corp., et al., AMERICAN BROADCASTING

Compantes, INC., ef al., NATIONAL ASSOCIATION

OF BROADCASTERS, ef al.,

Petitioners,

v.

WNCN Listeners Guitp, et al.,

Respondents.

MOTION OF THE WASHINGTON LEGAL

FOUNDATION FOR LEAVE TO FILE A

BRIEF AMICUS CURIAE

Washington Legal Foundation, Inc. moves, pursuant

to Supreme Court Rule 42, for leave to file the annexed

brief amicus cunae in the above-captioned procecd-

ings. Consent to the filing of the brief has been obtained

from counsel for petitioners. However, consent has been

refused by counsel for respondents.

The Washington Legal Foundation, Inc. (WLF) is

4 non-profit tax-exempt) corporation organized and

existing under the laws of the District of Columbia for

(1)

the purpose of engaging in litigation and the administra-

tive process in matters affecting the broad public interest.

WLF has more than 80,000 members, contributors and

supporters throughout the United States whose interests

the Foundation represents.

WLF participates in and has devoted a substantial

portion of its resources to cases relating to government

regulations and constitutional law. WLF seeks to advance

the interests of the broadcasting industry and the general

public in minimizing government interference with the

ability of broadcast licensees to change programming

formats. Format changes are expressions of speech

which are protected by the First Amendment to the

Constitution.

The Washington Legal Foundation can bring to this

case 4 perspective not presently represented which may

assist in obtaining full consideration of public interest

issues. None of the litigating parties is primarily focusing

upon general issues of the proper administrative and

constitutional role of the Federal Communications

Commission concerning radio format changes. WLF's

sole concem in these cases is to support the petitioners’

efforts to limit the FCC's involvement with format

changes so as to maximize free competition and free

enterprise in the electronic media.

The broadcast industry is one of the most powerful

and influential economic centers in this country. The

programs aired by radio and television affect nearly all

of the population. The prospect of increased govern-

ment regulation of the media, if the Court of Appeals

is upheid, poses an alarming threat to First Amendment

nghts. The loss of a particular radio format may be great

for elements of a community. Yet, this does not justify

massive federal interference with basic programming

(11)

decisions by broadcasters. The public interest requires

strict adherence to constitutional principles by agencies

of the government.

Accordingly, the Washington Legal Foundation respect-

fully requests leave to file the annexed brief amicus

cuntae.

Respectfully submitted,

DANIEL J. PoPEO

PauL D. KAMENAR

1612 K Street, N.W.

Suite 605

Washington, D.C. 20006

(202) 857-0240

Attorneys for Amicus Curiae

WASHINGTON LEGAL FOUNDATION

June 5, 1980

(w)

TABLE OF CONTENTS

STATOMmenN? OF THe GABE. ccc ccrecevectuase

\RGUMENT:

I. The Court Of Appeals Does Not Have The Power

To Substitute Its Own Judgment For That Of The

Federal Communications Commission Where Policy

Matters Involving Agency Expertise Are Concerned

Il. The Federal Communications Commission Is Not

Authonzed, kither By The Constitution Or By

Statute, To Involve Itself With Program Format

MN 6 ba 4 bio ik ach 6 ee Ne ae aR ae

A. The First Amendment to the United States

Constitution forbids government involvement

with broadcast format decision-making .....

Bb. The Communications Act of 1934 forbids

government involvement with broadcast format

ID 4.5 Sela ke 80S Boe 9%

COPGRIIS 6 20.0 5-0)2 a0 s Creleeie UN ae ew eo ees

PABLE OF AUTHORITIES

Cases:

Bantam Books, Inc. v, Sullivan, 372 U.S. 58 (1963)

Bates «. State Bar of Antzona, 433 U.S. 350, rehearing

re a OR Bh ad en ee eee

Buckley v. Valeo, 424 U.S. 1 (9G7G). 0. ke cae ees

Crtisens Committee to Keep Progressive Rock v. FCC,

078 F.2a:-926 (D.C, Gi. CORTE) occ eke cere he

Citizens Committee to Preserve the Voice af Arts in

ftlanta », FCC, 436 F.2d 263 (D.C. Cir. 1970) ....

Citizens Committee to Save WEFM ¢. FCC, 506 F.2d

SOe See Sa SOO ore es eee ee

eevee 3

(v)

Page

Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94 (1973) 2... 6 ee eee 17

Community -Service Broadcasting of Mid-America, Inc.

_v. FCC, 593 F.2d 1102 COG. Git: BOGE) cee ces teee cas 14

Far East Conference v. United States, 342 U.S. 570

i. | eee ee eee ae ae eee ee a eee ae a ie ee ae 10

FCC v. Midwest Video Corp., 440 U.S. 689 (1979)......... 17

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ......... 5

FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940) ..... 9

FCC v. RCA Communications, Inc., 346 U.S. 86 (1953) ..... 10

FCC v. Sanders Brothers Radio Station, 309 U.S. 470

‘i. ERE RERCEROCRTOCR EUROS ET Cr era ee 17

Hartford Communications Committee v. FCC, 467 F.2d

A aS: | a ce ear err a ee a 4

Henry v. FCC, 302 F.2d 191 (D.C. Cir. 1962) 2... 2... 0 ee 12

In re Permian Bastn Area Rate Cases, 390 U.S. 747

COUGE cc etc b be es Re eee Es Cheek eee Aes 10

Keyishian v. Board of Regents of University of New York,

BOG UD. GED IGG) ce cee kecdecesecer cennveres 14

Lakewood Broadcasting Service, Inc. v. FCC, 478 F.2d

OED CG Gs Drees 5.00 eb ee sta dae 4,10

Lemon v. Kurtzman, 401 U.S. 602 (1971) .......00500 ee 7

N.A.A.C.P. v. Button, 371 U.S. 415 (1963)... ....0.66. 13,14

National Association of Independent Television Producers

& Distributors, 516 F.2d 526 (2d Cir. 1975) ........ 10,14

National Broadcasting Co. v. United States, 319 U.S. 190

CUD 465 64 6 ee kw EOS 6 PR Oe 10,15

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ....... 14

Police Devartment of Chicago v. Mosley, 408 U.S. 92

CIOTED + becve see eee ee ee Ee ee wea wel 14

Public Interest Research Group v. FCC, 522 F.2d 1060

CoD GR POT) os.6 < oo 0,0 000s ds va ee 10,11

(wt)

Page

Red Lion Broadcasting Co. v. FCC, 395 U.S. 368 (1969) .5, 14, 16

Shelton v. Tucker, 364 U.S. 479 (1960) 2.6... ee ee eee 14

South Terminal Corp. v. EPA, 504 F.2d 646 (Ist Cir.

‘iin PERVERT Cee eee CUT eee aa 10

United States v. Nova Scotia Food Products Corp., 568

S| Serer eree ree era Tie Pert a ee 10

United States v. Robel, 389 U.S. 258 (1967)... .....6.005- 14

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., 435 U.S. 519 (1978) ...... 10

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) ...-..-05. 15

WNCN Listeners Guild v. FCC, 610 F.2d 838 (D.C. Cir.

(ae er were a ye ao ee 8,9

Constitution and Statutes:

United States Constitution, First Amendment ....... 2, 12, 13,

14, 15

Communications Act of 1934:

Section 3(h), 47 U.S.C. §153(h). 2... eee 17

Section $26, 47 U.S.C. § 326... 0... ee ee eee ee 16

Section 309 (a), 47 U.S.C. § 309(a).. 2... ee eee eee 4

Administrative Decisions and Reports:

Changes in the Entertainment Formats of Broadcast

Stations, 60 F.C.C.2d 858 (1976), reconsideration

denied, 66 F.C.C.2d 78 (1977) .. 2.2... ee ee eee 4,6, 7, 13

Deregulation of Radio: Denying Motion for Extension

of Time, 45 Fed. Reg. 20985 (1980) ..........20006. 11

Inquiry & Proposed Rulemaking: Deregulation of Radio,

44 Fed. Reg. 57,636 (1979) .. 1... cece eens cvvnes 3,11

Notice of Inquiry: Changes in the Entertainment Formats

of Broadcast Stations, 57 F.C.C.2d 580 (1976) ..... 4, 8,11

(vit)

Miscellaneous:

bk. Routt, J. McGrath, and F. Weiss, The Radio Format

Se UE TN Yh ee Wo 0 8 a i. wee ba veal a Ree eee

Oe COR, Gn FOU, BGOe COUT OD sete es ees cer eeeseeernes

Nate, Listeners’ Rights: Public Intervention in Radio

Format Changes, 49 St. John’s L. Rev. 714 (1975) .....

Notes, Federal Regulation of Radio Broadcasting, 28

Rutgers L. Rev. 966 (1975) ..... ccs secvvvvvveee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

Nos. 79-824, 79-825,

79-826, 79-827

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, INSILCO BROAD-

CASTING Corp., et al., AMERICAN BROADCASTING

ComPANIES, INC., et al., NATIONAL ASSOCIATION

OF BROADCASTERS, et al.,

Petitioners,

vu.

WNCN LISTENERS GUILD, et ail.,

Respondents.

BRIEF OF AMICUS CURIAE, THE

WASHING [ON LEGAL FOUNDATION, INC.

INTERESTS OF AMICUS CURIAE, THE

WASHINGTON LEGAL FOUNDATION, INC.

The Washington Legal Foundation, Inc. (WLF) is

a non-profit tax-exempt corporation organized and

existing under the laws of the District of Columbia for

the purpose of engaging in litigation and the administra-

tive process in matters affecting the broad public interest.

WLF has more than 80,000 members, contributors and

supporters throughout the United States whose interests

the Foundation represents.

WLF participates in and has devoted a substantial

portion of its resources to cases relating to government

regulations and constitutional law. WLF seeks to advance

the interests of the broadcasting industry and the general

publhe in minimizing government interference with the

ability of broadcast licensees to change programming

formats. Format changes are expressions of speech

which are protected by the First Amendment to the

Constitution.

The Washington Legal Foundation can bring to this

case 4 perspective not presently represented which may

assist. in obtaining full consideration of public interest

issues. None of the litigating parties is primarily focusing

upon general issues of the proper administrative and

constitutional role of the Federal Communications

Commission concerning radio format changes. WLF’s

sole concem in these cases 1s to support the petitioner’s

etforts to limit the FCC's involvement with format

changes so as to maximize free competition and free

enterprise in the electronic media.

The broadcast industry is one of the most powerful

and influential economic centers in this country. The

programs aired by radio and television affect nearly all

of the population. The prospect of increased govern-

ment regulation of the media, if the Court of Appeals

is upheld, poses an alarming threat to First Amendment

nghts. The loss of a particular radio format may be great

for elements of a community. Yet, this does not justify

massive federal interference with basic programming

decisions by broadcasters. The public interest requires

strict adherence to constitutional principles by agencies

ot the government.

3

STATEMENT OF THE CASE

These consolidated cases revolve around the issue of

the authority of the FCC to regulate changes in program

format by individual radio station licensees. This issue

has led, over the past decade, to divergent viewpoints

by the activist United States Court of Appeals for the

District of Columbia Circuit and by the Federal Commu-

nications Commission.

Format changes are problems which are generally

confined to radio.! Formats are specialized forms of

programming which are adopted by licensees as a means

to allure and keep loyal listeners. The success of a radio

format will translate into higher advertising rates and

station revenues.

Radio formats can be as particular as a licensee desires.

A radio station may specialize, for example, in classical

or jazz music. Stations often subdivide rock music into

numerous sub-categories such as progressive or Top-40,

thereby particularizing their listening audiences further.

Formats may be informational as well as entertaining,

e.g. religious, all-news, or all-talk~show programs.’

Licensees have traditionally exercised great freedom

in format selection and change, both during the three

Television stations normally have a “general format with

programs 2ppealing to a wide range of audiences. However, there

can be exceptions: a Spanish language UHF (Ultra High Fre-

quency) station.

2 Format specialization is a byproduct of the development of

television. Television stations siphoned off most general listening

programs and their audiences. Radio licensees responded with

narrow formats to appeal to particular segments of the population.

Ingutry and Proposed Rulemaking: Deregulation of Radio, 44

Fed. Reg. 57,636, 57,646 (1979).

a eeeeeal

4

year license period and when licensees are assigned to

aew owners.?

It is this freedom which has been increasingly ques-

tioned by the Court of Appeals.* That court, in Citizens

Committee to Save WEFM v. FCC, 506 F.2d 246 (D.C.

Cir. 1974), stated that the FCC, before permitting the

assignment of a license involving a format change, would

have to hold public hearings upon certain conditions.

The FCC, in response, ordered an inquiry into the

problem of tormat change regulation.’ The Commission

promulgated a policy statement, Changes in the Enter-

tainment Formats of Broadcast Stations, 60 F.C.C.2d

858 (1976), reconsideration denied, 66 F.C.C.2d 78

(1977), which reaffirmed its commitment to let formats

change according to marketplace considerations. The

Commission cited statutory and constitutional impedi-

ments to format regulation as well as impracticality of

application of these regulations.

The Commission policy statement was challenged and

subsequently overturned by the Court of Appeals on

June 29, 1979. Petitions for certiorari were filed in this

Court on November 26, 1979. Certiorari was granted

by this Court on February 25, 1980.

sh Routt, J. McGrath, & F. Weiss, the Radio Format Conun-

drum, p. 1 (1978).

4See Citizens Comm. to Preserve the Voice of Arts m Atlanta

FCC, 436 F.2d 263 (D.C. Cir. 1970); Hartford Communications

Comm. vo. FCC, 467 t.2d 408 (D.C. Cir. 1972); Lakewood Broad

casting Service, Inc. v. FCC, 478 F.2d 919 (D.C. Cir. 1973);

Citizens Comm to Keep Progresswe Rock v. FCC, 478 F.2d 926

(D.C. Cir. 1973); Citizens Comm. to Save WEFM v. FCC, 506

F.2d 246 (D.C. Cir. 1974).

SNotree of Inquery. Changes mm the Entertamment Formats

of Broadcast Stations, 57 F.C.C.2d 380 (1976).

ARGUMENT

I.

THE COURT OF APPEALS DOES NOT HAVE THE

POWER TO SUBSTITUTE ITS OWN JUDGMENT

FOR THAT OF THE FEDERAL COMMUNICATIONS

COMMISSION WHERE POLICY MATTERS INVOLV-

ING AGENCY EXPERTISE ARE CONCERNED.

The Federal Communications Commission has been

charged by Congress to regulate the use of the airwaves

by broadcasters. Regulation has been considered neces-

sary due to the nature of the broadcasting medium.

The scarcity of allowable frequencies compels govern-

ment allocation to prevent a “cacaphony of competing

voices.” Red Lion Broadcasting Co. v. FCC, 395 U.S.

368, 376 (1969).

As a consequence, some agency intervention in broad-

casting matters has occurred with the sanction of the

courts. However, regulations concerning public interest

obligations of broadcasters, e.g., fairness doctrine, or

the political equal time rule, are related to procedural

and not contextual requirements. Commission power

over substantive content programming has been exerted

only to prohibit the broadcast of obscene language;

language not protected by the First Amendment. See

FCC v. Pactfica Foundation, 438 U.S. 726 (1978).

The FCC has been understandably reluctant to get

itself involved with format regulation. This reluctance

is a natural outgrowth of the Commission's over forty-

year experience with the workings of the broadcasting

industry. After careful consideration, the FCC has

determined that “our regulation of entertainment

formats as an aspect of the public interest would produce

an unnecessary and menacing entanglement in matters

b

that Congress meant to leave to private discretion.” 60

F.C.C.2d at 865.

The Commission emphasizes that:

Although it is recognized that competition will

result in some degree of format duplication, we

firmly believe that continued reliance on forces in

the marketplace provides a positive benefit to the

public by allowing listeners to give some means of

expressing “whether their preferences for diversity

within a given format outweighs the desire for

diversity among different formats,” 60 F.C.C.2d

at 863, and also by providing a competitive spur

which assures that stations offering popular format

types will not become indifferent to the tastes of

their listeners.

66 F.C.C.2d at 81.

The business judgment of the licensee is given much

deference by the agency and nghtfully so.® It as this

independent decisicn by the broadcaster to devise a

particular format for his station which leads to market-

place diversity. The Commission, charged by Congress

to make decisions in the public interest,” examines the

"See Note, Listeners’ Rights: Publ Intervention m Radio

Format Changers, 49 St. John's L. Rev. 714, 739 (1975); 93 Tex.

L.. Rev. 1099, 1100-01 (1975).

"Section 309(a) of the Communications Act of 1934, as

amended, 47 U.S.C. 3 309/a), provides

(a) Subject to the provisions of this section, the Commission

shall determine, in the case of each application filed with it

to which section 308 of this title apples, whether the public

interest, convenience, and necessity will be served by the

granting of such application, and, if the Commission, upon

examination of such application and upon consideration of

such other matters as the Commission may officially notice,

shall find that public interest, convemience, and necessity

would be served by the granting thereof, it shall grant such

application

~

particular format choice made in a license application

or license renewal form and decides its public merit.

Agency notification is) required only of substantial

format changes.* Amicus urges that this minimal inter-

vention by the FCC be considered sufficient to ensure

programming diversity.

In large radio markets, radio stations have “naturally”

evolved diverse programming without extended federal

involvement. 66 F.C.C.2d at 80. Yet, the Court of

Appeals would have the FCC hold hearings if a license

assignment would affect diversity. This is in spite of

the fact that a diverse market can be very difficult: to

administer.

The Commission has recognized that enormous dif-

ficulties would be encountered in enforcing format

regulations. Formal definitions of diversity and. of

broadcast’ programming categories would have to be

devised. Needless to say, defining a concept as dynami«

and changing as “progressive rock" could lead to highly

arbitrary and subjective terminology. Formats evolve

with tume. In order to truly monitor such change would

necessitate “a comprehensive, discriminating and con-

tinuing state surveillance.’ Lemon v. Kurtzman, 401

U.S. 602, 619-20 (1971). Administrative costs of

monitoring or conducting formal change hearings could

be significant, both in money and time for all parties

involved. 60 F.C.C.2d at 861-65.

Another Commission concern relates to the fact that

the Court of Appeals mandates government intervention

when a “unique” station format is to be abandoned, 60

F.C.C.2d at 863-64, 873-75. However, guidelines for

*See Notes, Federal Regulation of Radio Broadcasting, 28

Rutgers L. Rev. 966, 968-69 (1975).

8

determining a unique programming format, for measuring

listener format preferences or for the intensity of those

preterences may not be quantifiable. WNCON Listeners

Guild v. FOC, 610 F.2d 838, 862-64 (D.C. Cir. 1979)

(Tamm, C.J., dissenting).

Former FCC Commissioner Glen O. Robinson charac-

terized the difficulty of measuring « unique format:

What makes one format unique makes all

formats unique. If subjectivity is to be an important

leterminant of what makes a format “unique”

for, mi other terms, what makes it a net con-

tributor to diversity), how are we to avoid the

fact that even with respect to formats which objec:

tively seem identical, people —radio listeners —can

and do make distinctions. ... Indeed, if people

did not distinguish among these stations, there

would be no reason for them to co-exist— and little

economic likehhood that they would. Questions

ot pacing and style, the personalities of on-the-air

talent (both individually and in combination with

one another) all contribute to those fugitive values

that radio people call a station's “sound” and that

citizens’ groups (and, alas, appellate judges) call

format. It follows, therefore, that by the subjec-

tive standards that the Court seems to embrace, any

format is unique; from which it follows, all must be

preserved. At that thought the mind swims and the

heart sinks.

57 F.C.C.2d at 594-95 (Robinson, concurring opinion )

(footnotes omitted).

Notwithstanding the various faults the FCC has noted

exist with format regulation, the D.C. Circuit has insisted

on the Commission applying format regulation in particu:

lar circumstances. The Commission must, according

to the court, examine any potential loss of diversity

when considering a heense assignment. The Commission

9

substantial number of people voice “significant public

grumbling” over the proposed license change. The FCC

must decide if an adequate format substitute exists in

the licensee's service area (which consists of the licensee’s

broadcasting home and nearby places regularly served

by the station). Finally, the agency must determine

if the “endangered” program format is “financially

unviable,” regardless of station management. If any of

the above issues occurs, involving “‘substantial questions

of fact material to the public interest,” the FCC must

order an evidentiary hearing. The hearing is a prerequisite

to the agency assignment decision. WNCN Listeners

Guild v. FCC, 610 F.2d at 842-43.

Amicus stresses that the FCC’s studied decision not

to get involved with radio format regulation should

not be lightly disregarded by reviewing federal courts.

Commission policy decisions or actions by administrative

agencies have traditionally been given respect by the

courts.

In 1940, Justice Frankfurter warned that:

{C]ourts are not charged with general guardianship

against all potential mischief in the complicated

tasks of government. The present case makes

timely the reminder that “legislatures are ultimate

guardians of the liberties and welfare of the people

in quite as great a degree as the courts. ...’” Congress

which creates and sustains these agencies must be

trusted to correct whatever defects experience may

reveal. Inteiference by the courts is not conducive

to the development of habits of responsibility in

administrative agencies.

FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 146

(1940).

10

Soon after, the Supreme Court confirmed the broad

public interest powers of the Commission to regulate

radio. However, Commission powers did not extend to

selecting license applicants on a capricious basis. National

Broadcasting Co. v. United States, 319 U.S. 190, 217,

226 (1943).

Courts have found that administrative agencies like

the FCC often are more effective at decision-making

due to their “specialization, .. . insight gained through

experience, and . .. more flexible procedure.” Far East

Conference v. United States, 342 U.S. 570, 575 (1952).°

A reviewing court does not decide the wisdom of a par-

ticular agency action but only if it is arbitrary, capricious

or an abuse of administrative discretion.'° The First

Circuit Court of Appeals has acknowledged that:

We have no license to regulate broadcasting nor

to impose our private views of the public welfare.

What we must do is determine whether the Commis-

sion is acting within its lawful regulatory authority.

In so doing, we shall first consider whether the

Commission, judged in terms of its own proce-

dures and precedents, past and present, has acted

rationally and properly. Thereafter, we shall

%See FCC v. RCA Communications, Inc., $46 U.S. 86, 96

(1953,; Nat'l Ass'n of Independent Television Producers & Dis-

tributors, 516 F.2d 526, 536 (2d Cir. 1975).

See ¢.g.. In re Permian Basin Area Rate Cases, $90 U.S. 747,

777 (1968); Citizens Comm. to Keep Progressive Rock v. FCC.

478 F.2d at 926; Lakewood Broadcasting Service Inc. v. FCC,

478 F.2d at 922; S. Terminal Corp. v. EPA, 504 F.2d 646, 655-56

(Ist Cir, 1974); Pub. Interest Research Group v. FCC, 522 F.2d

1060, 1064 (1st Cir. 1975); United States v. N.S. Food Prods.

Corp., 568 F.2d 240, 246 (2d Cir. 1977); Vt. Yankee Nuclear

Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.

519, 549 (1978).

consider its actions in terms of statutory and consti

tutional law.

Public Interest Research Group v. FCC, 522 F.2d at

1064.

Amicus urges that judiciakvestraint be applied concern-

ing the FCC's desire to stay out of format regulation.

The Commission has reached its present attitude after

years of examining broadcast activities, as well as through

regulatory proceedings. Comments from broadcasters,

public interest organizations and the general public were

solicited and received by the agency as a result of its

Notice of Inquiry. The Commission compiled a statisti-

cal analysis to study problems of format regulation.

It therefore is apparent that the agency’s opinions are

not arbitrary or capricious and should be respected and

upheld by the courts.

The D.C. Circuit should not be allowed to substitute

its own views for that of the Federal Communications

Commission in matters relating to policy-making. The

Commission has initiated proceedings towards a general

deregulation of radio rules.''! This would terminate most

FCC regulations over the amount of informational and

advertising material to be aired by radio licensees. The

refusal of the Commission to involve itself with format

regulation reflects a deregulatory, pro-marketplace atti-

tude. An adverse decision in this case might well jeopar-

dize radio deregulation. '?

'\Inguiry & Proposed Rulemaking: Deregulation of Radio, 44

Fed. Reg. 57,636 (1979).

'2Critics of deregulation are aware of this. Deregulation of

Radio; Denying Motion for Extension of Time, 45 Fed. Reg.

20985 (1980).

12

must take into its public interest decisions whether a

THE FEDERAL COMMUNICATIONS COMMISSION

IS NOT AUTHORIZED, EITHER BY THE CONSTI-

TUTION OR BY STATUTE, TO INVOLVE ITSELF

WITH PROGRAM FORMAT CHANGES.

Amicus has previously denoted that the Court of

Appeals for the District of Columbia Circuit does not

have the ability to “second-guess” Federal Communica-

tions Commission decisions which are not arbitrary or

unlawful. In addition, even if the FCC enthusiastically

supported format regulation, the First Amendment

and the Communications Act of 1934 would bar such

enforcement.

A. The First Amendment to the United States

Constitution forbids government involvement

with broadcast format decision-making.

Mandating government intervention in license assign-

ments or renewals when a “‘unique”’ programming format

is threatened naturally involves the First Amendment to

the United States Constitution.!3 The FCC is constitu-

tionally empowered to “impose reasonable restrictions

upon the grant of licenses to assure programming de-

signed to meet the needs of the local community.”

Henry v. FCC, 302 F.2d 191, 194 (D.C. Cir. 1962).

However, format regulation would not constitute a

“reasonable restriction” upon licensees. The FCC has

astutely observed that, in the course of format change

proceedings, an entire proposed programming alternation

'S The First Amendment states:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof: or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Govern.

ment for a redress of grievances.

13

could be rejected by the Commission. A consequence o!

this would be ordering the licensee, in order to promote

“diversity,” to provide a particular format even if it ts

not what he originally intended. 66 F.C.C.2d at 83.

Massive federal intervention in radio operations could

well ensue.

Format change regulation could have a “chilling

effect” on the broadcast industry. Licensees would be

afraid of instituting experimental programming changes

for fear of being “locked in” the format by the Commis-

sion. Economic considerations would become more

important to the broadcaster. He would be more apt

to choose programming pleasing to an aural majority

of listeners in order to have a firm financial position in

case future format changes were to be vetoed by the

Commission or challenged in the courts. Format regula-

tion could well infringe upon the broadcaster's editorial

judgment and his freedom of speech.'4

Freedom of speech is a fundamental right guaranteed

to Americans through the First Amendment. Justice

Brennan has opined that:

These freedoms are delicate and vulnerable, as well

as supremely precious in our society. The threat

of sanctions may deter their exercise almost as

potently as the actual application of sanctions. .

Because First Amendment freedoms need breathing

space to survive, government may regulate in the

area only with narrow specificity.

VOAA.CP. v. Button, 371 U.S. 415, 433 (1963). The

Justice has stressed that “{p]recision of regulation

must be the touchstone in an area so closely touching

\4qn6 Notes, Federal Regulation of Radio Broadcasting, 28

Rutgers L. Rev. 966, 978-79 (1975).

1+

our most precious freedoms.” Jd. at 438. Therefore,

the Court should apply the strict scrutiny standard of

judicial review to the concept of format change regula-

tion. Unless some compelling governmental interest

is involved or the relevant speech not constitutionally

protected, any infringing statute or regulation will be

invalidated. Community-Service Broadcasting of Mid-

America, Inc. v. FCC, 593 F.2d 1102, 1111 (D.C. Cir.

1978).'5

Courts have noted that the First Amendment's role in

broadcasting is to “preserve an uninhibited marketplace

ot ideas.” Red Lion Broadcasting Co. v. FCC, 395 U.S.

at 390; New York Times Co. v. Sullivan, 376 U.S. 254,

270 (1964). As a result, the FCC cannot “take from

the licensee the ultimate control, and the ultimate

responsibility as well, for the actual content of particular

programs within the broad categories promulgated to

serve the public interest.” National Association of

Independent Television Producers & Distributors, 516

F.2d at 538. A broadcaster, t'.a, has the right to seek

the assistance of the First Amendment as a defense

against’ government attempts to limit independent

decision-making. Community-Service Broadcasting of

Mid-America, Inc. v. FCC, 593 F.2d at 1110. The

Supreme Court has declared that the heart of any uncon-

stitutional governmental censorship is “content control.”

Police Department of Chicago v. Mosley, 408 U.S. 92.

95-96 (1972). Amicus stresses that any format change

regulation by the FCC would constitute unlawful content

control of licensee programming.

'S See also Shelton v. Tucker, 364 U.S. 479, 488 (1960); Bantam

Books, Inc. v. Sullwan, 372 U.S. 38, 66 (1963); Keytshian v. Bd.

of Regents of Unw. of N.Y, 385 U.S. 589, 604 (1967): United

States v. Robel, 389 U.S. 258, 265 (1967).

15

Moreover, no lawful rationale for non-application of

the First Amendment has been presented in the instant

case. The Commission and the Federal Government lack

a compelling interest to enforce format regulation. Nor

does the nature of the speech concerned in this case, 1.¢.,

music and other forms of informational and entertain-

ment programming, fall within non-protected langauge.

None of the formats concerned are obscene. The fact

that money is expended to finance commercial cadio

programs, ¢.g., by advertising, does not eliminate First

Amendment guardianship.'®

Therefore, Amicus believes that any attempt by the

Commission to involve itself with format control, as

required by the Court of Appeals, would contravene the

First Amendment’s freedom of speech guarantee and

not be in the public interest.

B. The Communications Act of 1934 forbids

government involvement with broadcast

format decision-making.

Amicus finds that even if format regulation by the

FCC did not offend the First Amendment, ic would still -

violate the Commission's statutory authority, the Com-

munications Act of 1934.

The Supreme Court has observed that the coal of the

Act “was to secure the maximum benefits of radio to

all the people of the United States.” National Broad-

casting Co. v. United States, 319 U.S. at 217. The Act

1©The First Amendment protections given commercial speech

are enunciated in such cases as: Buckley v. Valeo, 424 U.S. 1, 16

(1976), Va State Bd. of Pharmacy v. Citizens Consumer Council,

Inc.. 425 U.S. 748, 761-62 (1976); Bates ». State Bar of Artz..

£33 U.S. 350, 363-64. rehearme denied, 434 U.S. 881 (1977).

16

established the FCC and gave it significant authority to

regulate radio and other communications forms in the

public interest.'’7 Yet, the Act does not provide for

unlimited power. The Commission, for example, is

expressly forbidden to engage in censorship.'®

Amicus suggests that allowing format regulation

would permit a form of censorship by the Commission.

The FCC, in the name of “diversity,” could prohibit a

renewing or assigned licensee from broadcasting particu-

lar formats. This would interfere with free speech within

the meaning of the statute.

The Supreme Court has considered the relationship

between government intervention with broadcasting and

the Communications Act. Speaking for the Court, Chief

Justice Burger has declared:

Long before the impact and potential of the

medium [radio] was realized, Congress opted for

a system of private broadcasters licensed and

regulated by Government. The legislative history

suggests that this choice was influenced not only

by traditional attitudes toward private enterprise,

but by a desire to maintain for licensees, so far as

consistent with necessary regulation, a traditional

journalistic role. The historic aversion to censor-

ship led Congress to enact § 326 of the Act. .

Congress pointedly refrained from divesting broad-

casters of their control over the selection of voices;

'" Red Lion Broadcasting Co. v. FCC, 395 U.S. at 380.

'* Section 326 of the Act provides that:

Nothing wm this chapter shail be understood or construed to

give the Commussion the power of censorship over the radio

rommunications or signals transmitted by any radio station,

and no regulation or condition shall be promulgated or fixed

by the Commission which shall interfere with the nght of

free speech by means of radiz communication.

17

§ 3(h) of the Act stands as a firm congressional

statement that broadcast licensees are not to be

treated as common carriers, obliged to accept

whatever is tendered by members of the public.

Both these provisions clearly manifest the intention

of Congress to maintain a substantial measure of

journalistic independence for the broadcast licensee.

Columbia Broadcasting System Inc. v. Democratic

National Committee, 412 U.S. 94, 116 (1973) (footnote

omitted).!9

Amicus finds that the definition of journalistic inde-

pendence must surely include judgment over choice

of programming formats. This choice is analogous to

newspaper editors’ decisions as to what features their

newspapers will carry and how large they will be. The

electronic marketplace is not “fair game" for the Com-

mission or Court of Appeals. In Short, ‘‘Congress in-

tended to leave competition in the business of broad-

casting where it found it, to permit a licensee who was

not interfering electrically with other broadcasters to

survive or succumb according to his ability to make

his programs attractive to the public.” FCC v. Sanders

Brothers Radto Station, 309 U.S. at 475.

'? Section $(h) of the Act provides that:

“Common carrier’ or “carrier’’ means any person engaged as

a common carrier for hire, in interstate or foreign commu-

nication by wire or radio or in interstate or foreign radio

transmission of energy, except where reference is made to

common carriers not subject to this chapter; but a person

engaged in radio broadcasting shall not, insofar as such

person is so engaged, be deemed a common Carrier.

The reyecuon of broadcasters as common carmiers is confirmed in

a number of cases, ¢.g.. FCC v. Sanders Bros. Radio Station, 309

U.S. 470, 474 (1940); FCC v. Midwest Video Corp., 440 U.S.

689 (1979).

18

CONCLUSION

The Federal Communications Commission has deter:

mined that the agency should not be involved with

regulating changes in programming formats by station

licensees at either the time for license renewal or when

a license is assigned to new owners. This policy has been

modified by the United States Court of Appeals for the

D.C. Circuit. The court requires agency action, including

hearings, if the elimination of a particular format would

result in a loss of diversity in a license service area.

The Court of Appeals, however, has neither the

expertise nor authority to impose its judgment on format

regulation upon the FCC. The Commission's policy

findings had a reasonable basis in agency expertise and

were not arbitrary or capricious.

Even assuming that the Court of Appeals could man-

date Commission format regulation, such regulation

would infringe the First Amendment's protection of

freedom of speech. It would also violate the Communi-

cations Act of 1934's provision against governmental

censorship.

Freedom of expression for broadcasters within a

competitive electronic marketplace is a goal desired

by much of the public, government and broadcasting

indus ry. By reversing the Court of Appeals’ decision,

this Court is in a position to further diversity of ideas

without harmful government interference.

19

Respecttully submitted,

DANtEL J. Porto

Patt D. KAMENAR

1612 K Street, N.W.

Suite 605

Washington, D.C. 20006

(202) 857-0240

Attorneys for Amicus Curiae

WASHINGTON LEGAL FOUNDATION*

lune 5, 1980

*Mr David H. Stonehill, Program Attorney for the Washington

Legal Foundation, assisted in the preparation of this brief.