# Amicus Curiae Brief — FCC v. WNCN Listeners Guild > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1302%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1981 - **Citation:** 450 U.S. 582 ## Text a eee SUPRE ye COUpT s. j " 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1302%3A12. Public record. Not legal advice.