Amicus Curiae Brief — FCC v. WNCN Listeners Guild

CER a me ee

TABLE OF CONTENTS

EN 4:5 sdnsh Waa cabene eee svecoenen’ da

Se te WE EOD vein ooo NabedekevGssvaceoasn

B. News, Public Affairs and Acculturization ..

C. Local Regulation of Cable Television .......

a ee pa na ee

Porxnt I—Radio listeners are entitled under the First

Amendment and the Federal Communications

Act of 1934 to diversity on the air. When a

licensee threatens to deny listeners their entitle-

ment, they have a right under the First Amend-

ment and the Communications Act to petition

the Federal Commuications Commission to pro-

See a ee reg

Poixt II—To assure that the freedom of the States

to explore other possible regulatory approaches

is preserved, the Court should explicitly note

that its decision herein on Federal regulation

of radio need not necessarily apply to State

regulation of cable television systems .........

RR a nit eines baile ale tang oer clebikw eae

TaBie OF AUTHORITIES

Cases CiTED

Aberdeen Cable TV Service, Inc. v. Citu of Aberdeen,

85 S.D. 57 (1970), cert. den. 400 U.S. 991 (1971)

16

wh

30

i TABLE OF AUTHORITIES

Association of National Advertisers v. FTC, —— F.

2d ——, 48 LW 2434 (D.C. Cir. Dee. 27, 1979) ..

Branti v. Finkel, —— U.S. ——, 100 S. Ct. 1287

errr rrrrrrr cr rr er

Citizens Committee to Preserve the ‘‘Voice of Arts

in Atlanta”’ v. FCC, 436 F. 2d 2638 (D.C. Cir.

BOGOD nb dv encivsu vnteeeee xiseaeesnaneeeeel

Citizens Comm. to Save WEFM v. FCC, 506 F. 2d

SOG C.. Cle: SBE an 6 os vv sees cnecensa@oaweee

Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94 (1973) . .20, 21, 22,

Consolidated Edison Co, of New York, Ine. v. Public

Service Com’n of New York, —— U.S. ——, 100

S. Ct. ——. 48 USLW 4776 (June 20, 1980) ......

Dunn v. Blumstein, 405 U.S. 330 (1972) .....0.0....

FCC vy. Midwest Video Corp. (AD, 40 U.S. 689

CR 66s beaks seekoeres

FCC vy. Pacifica Foundation, 438 US. 726 (1978)... .21,

FCC vy. Sanders Brothers Radio Station, 300 US. 470

mele me

PAGE

bo PRISE BARAK Ht — eee ve

Hotel Dorset Co. v. Trust for Cultural Resources of

City of New York, 46 N Y¥ 2d 358 (1978) 22.2... 2

McGunnts v. Royster, 410 UWS. 263 (1973) 220 00000.. any

MeRKener vo Pennsylvania, 403 US. 528 (1971). 29

National Broadcasting Co. v. United States, 319 US.

1) (1943) 2... as ae cae .. 16, 17, 2-3

Nugent v. Carty of Bast Providence, 108 RD. SITS, 238

Ald 758 (1078)

13

TABLE OF AUTHORITIES ili

PAGE

Office of Communication of the United Church of

Christ v. FCC (1), 359 F. 2d 994 (D.C. Cir.

I MUUEEEGR GROWL GGh oak bn scsvccecces 19, 20, 25, 26

Office of Communication of the United Church of

Christ v. FCC (11), 425 F. 2d 543 (D.C. Cir.

access canccccccce 19

Perry v. Sindermann, 408 U.S. 593 (1972) ........ 21

Red Lion Broadcasting Co., Inc. ©. FCC, 395 U.S. 367

ERE ek kcsccsecccccece. 16, 20, 21

Sanders Brothers Radio Station v. FCC, 106 F. 2d 321

(D.C. Cir. 1939), revd, 300 U.S. 470 (7960) .... 18

Shapiro v. Thompson, 394 U.S. 618 (1969) 2.0.0... 23

Speiser v. Randall, 357 U.S. 513 (1958) ............ 21

TV Piz, Ine, v. Taylor, 304 F. Supp. 459 (D. Nev.

1966), atid. 396 U.S. 555 (1970) ................ 12

United States ve. Midwest Video Corp. (1), 406 U.S.

Nee nse cee eeccccc. 27

United States v. Southwestern Cable Co., 392 U.S. 157

Oe 27, 28

White v. Regester, 412 US 755 (1973) .............. 8

STATUTES CITED

Federal

EE Passim

Communications Act of 1934, 47 U.S. C. 4° 307, 309,

EE Li, 27

ee I EF ode c cana. oS l

iv TABLE OF AUTHORITIES

PAGE

Delaware

26 Del. C. $$ 102, 203, 601, 606-8, 616 (1978 Cum.

UI vv n i cancrcesrsactcerseccesenircevasos 11

Minnesota

Minn. Stat. $4 238.01, .02, .04, .05, .08, .09, .11, .19

CE ote e sh obagkhe vers hors va eeseaee eae ees 11-12

Act of April 24, 1980, Ch. 614, § 124, 1980 Minn. Sess.

L. Serv. 1308 (West), to be codified as Minn.

eh: I. ch i n.c cc eh cee hexn haan eennee 12

Nevada

NRS 44 704.20, 330, 711.030, .040, 050, .090, 140

4: ROE A Ie rey ge et ene re ae 12

New Jersey

Res. Oct. 21, 1974, N.J. Gen. Assembly ............ 3.0)

New Merico

I UE A on cae ag pak eae A 13

N.M. Stat. Chap. 63, Art. 10-11 (1978) ............ 12

me, ee, SE GSS 2 ATO) obec reise 12

New York

N.Y. Gen. Mun. Law 44 303, 326 (MeKinney 1979

PS ba vmi Borsa ca Mepoeks ine Rigainsea se 2

NLY. Exee. Law 44 $12, 815, 819, 821, S29 (McKinney

TOD CO ok hci k a beans Chae de wxunaie as 4, 10

S. Res. 32, 1975-1976 Reg. Sess., N.Y.S. Legis. ..... y

A. Res. 85, 1975-1976 Reg. Sess., N.Y.S. Legis. ...... 5

Res. Dee. 16. 1974, White Plains Common Council... 3,6

Res. 381 (Nov. 14, 1974), N.Y.C. Couneil ........... 3, 6

TABLE OF AUTHORITIES Vv

PAGE

Rhode Island

ne Bas Skee GAUGED esac vcs cebvserctansss 13

R.T. Gen. L. §$ 39-19-2, -3, -4, -6, -8 (1977) ......... 13

R.I. Public Laws of 1969, Chapter 240, enacting R.I.,

ee. Ba, Wy eee OF OUR acc ecee sestceees 13

South Dakota

S.D.C.L. § 9-35-3, -17, -18, -20 (Supp. 1979) ........ 13-14

5.D. Laws of 1972, Chapter 62 ..............0205.. 14

Washington

a SE CD ic as vee Bares see vn eur be wes 14

Pe SE Baio co abic Kacatue se vavaee cenes®s 14

ey Es cic c aD ckna ech vie sx wee Chbnkes 14

of ge re ee ee 14

RCW 36.95.010, .020, 040, .050, 130 (971) ........ 14

Sections 2-4, 8, Chapter 123, Laws of 1980, amending

+ Be eeemrrerarrr rent rT REE TEE 14

OTHER AUTHORITIES

A. Books axp Direcrorizs

Briley, Survey of Franchising and Other State Law

and Requation on Cable Television (FCC 1976) — 29

Ford Foundation, The Finances of the Performing

SE I 508 So rd 0 o's dae Rind bia aid Kine eee 3

Hochberg, The States Regulate Cable: A Legislative

Analysis of Substantive Provisions, Publication

P-78-4 (Harvard Univ. July 1978) ............ 29

vi TABLE OF AUTHORITIES

PAGE

Minority/ Ethnic Media Guide, USA 1980 (Directories

Sy eee 7,8, 9, 24

N.Y.S. Com’n on Cable Television, Cable Communica-

tions in New York State: An Agenda for Govern-

ment Involvement (Docket No. 90112) (August

acuddlucounkébavondsnres sNaahaheieguines 10-11

Radio Programming Profile (BF /Communications

Services, Ine. Winter 1979) ... cc cccuccvcccess 4,7

U.S. Bureau of Census, 1970 Census of Popwation,

Characteristics of Population, vol. 1 ........-. 8

B. PaMPpuHLets axp SERVICES

ARB Jan. Feb. 1980 (Arbitron Ine.) .............. 4.5, 7

‘*How Blacks and Spanish Listen to Radio (Report

oe Se ID 2. ve kena oa came 7

Radio Facts (Radio Advertising Bur. 1980) 2.2... 6

Scarborough Report—New York Market 1980 (Scar-

borough Research Corp.), p. 22 ...........045. 7

62:6 SRDS Spot Radio Rates and Data (Standard

Rate and Data Service, Inc. June 1980) ........ 4

Station Programming Profiles—Albuquerque (Katz

Sy OD on vancbac¥eaessd cs sneenwstwes 4

C. Arricutes anp MemMoraNnpa

Cahn, Law im the Consumer Perspective, 112 U. Pa.

OE Re err 19-20

Carroll, ** The Son of the Big Band Sound: A Return

to Music of the Thirties.” San Francisco Ex-

aminer and Chronicle, Dee. 23, 1979 ( Datebook

| RS Tee aS 5 ENE RA SEERA EE ARS, Pi i a 6

TABLE OF AUTHORITIES

Jacobson, ‘‘The Spirit of Saint Louis’’, 44:22 Opera

Wewe-22--(dune-1900) —---ereerererrrrrrrr

Whitman, ‘‘A Station Rises, Phoenix-Like, From Its

Own Ashes,’’ 22:8 Madison Avenue (August

RIED eg KMS Downe ads oe iWacunenks

1974 (Nev.) Att’y Gen. Op. No. 174 ...............

1964 (Nev.) Att'y Gen. Op. No. 128 ...............

1972 Op. (N.M.) Att’y Gen. No. 72-29 ..............

Ops. (Wash.) Att’y Gen. 65-66, No. 92 ..............

Chapter 903 of the Laws of 1976, Legislative Memo-

randum in Support, New York State Legislative

I BO og ccs tons cntuvacs vatrtere

Broadcasting (October 9, 1978), p. 47 ..............

Broadcasting (June 9, 1980), p. 46 ............005.

New York Daily News, June 15, 1980, p. 7, col. 1 ....

N.Y. Times, Nov. 30, 1974, p. G1 ...........ccceee.

Vii

PAGE

1+

AMICI CURIAE BRIEF OF NEW YORK, DELAWARE,

MINNESOTA, NEVADA, NEW MEXICO, RHODE ISLAND,

SOUTH DAKOTA and WASHINGTON

Opinions Below

The opinion of the United States Court of Appeals for

the District of Columbia Circuit appears at 610 F. 2d 838.

The Notice of Inquiry and Orders of petitioner Federal

Communications Commission (FCC) appear at 57 FCC 2d

580, 60 FCC 2d 858, and 66 FCC 2d 78.

The texts are printed in full in the Appendices to peti-

tioner FCC's Petition in No, 79-824. For convenience,

reference to the decision below will be to both the official

publication and the FCC’s Appendices (‘* App.’’).

Consent of the Parties

Consent of the parties is not required since this brief

on behalf of the States of New York, Delaware, Minnesota,

Nevada, New Mexico, Rhode Island, South Dakota and

Washington as Amici Curiae is sponsored by their re-

spective Attorneys General. U.S. Sup. Ct. R. 36.

Interest of Amici Curiae

Amici have three major interests in this case. First,

radio is important to the States’ cultural and economic

lives. Second, radio is a crucial medium by which the

citizenry in general is informed of news and public affairs

and through which minority groups in particular are

brought into the mainstream of cultural and political life.

Third, the decision herein may affect the varied patterns

of local regulation of the burgeoning cable television in-

dustry.

2

A. Cultural and Economic Life.

As to the first concern, each of the States joining in this

amici brief has a very real and substantial interest in

promoting a vigorous cultural life. The availability of

museums and concerts is important in creating an

atmosphere where people will want to live and work, where

managers will want to locate their businesses. New York’s

Legislature has formally recognized the importance of the

arts to the State’s ‘‘economy and tax base’’ as well as to

its People’s ‘‘educational, recreational and cultural activi-

ties’’ through attracting artists, industries related to the

arts, and art lovers. See N.Y. Gen. Mun. Law $§ 303(1)

(a)-(b); 326(1) (MeKinney 1979 Supp.).’ Proponents

pointed out? that the major cultural institutions “have

multi-million dollar payrolls [,}] . . . spend millions of

dollars annually for goods and services [and] . . . gen-

erate substantial sales tax revenues.” They “attract peo-

ple from all over the world to provide a reservoir of talent

for such industries as advertising, film and television pro-

duction, publishing, printing and graphic arts and fashion

and industrial design. These industries spend about $884

million annually and generate $36.4 million in taxes.”

While New York is perhaps unique in the extent to which

its economy depends on the arts, the arts are important

to the economy and cultura! life of every State.

' The provisions cited contain the legislative findings that were

relied on by the New York Court of Appeals in upholding the

constitutionality of the statutes. Hotel Dorset Co. v. Trust for

Cultural Resources of City of New York, 46 N Y 2d 358, 369-70,

372 (1978).

> Chapter 903 of the Laws of 1976, Legislative Memorandum in

Support, New York State Legislative Annual-1976, p. 195.

3

Radio plays an important part in promoting the arts,

particularly music.’ Radio enables less popular tradi-

tional musical styles (e.g., ‘‘big band’’ sound, classical

music, jazz) to reach the new audiences they need if they

are to survive.* It informs aficionados of events they can

attend and records they can buy. The many tributes paid

to the Metropolitan Opera broadcast series on its fortieth

anniversary for inspiring new musical groups to form,

performers to study and listeners to attend, were a

dramatic example of radio’s importance to creating con-

cert hall audiences.” Radio can be even more important

to the poor, the elderly, the handicapped and those who

simply live far from a cultural center, for it brings into

their homes the concerts they could not attend.

Each of the amici States has one or more stations in a

major market city with an entertainment format that is

* The threatened loss of WNCN’s unique classical musie format

led the New Jersey General Assembly, the New York City Council

and about a dozen other local legislatures in Connecticut and

New York to adopt resolutions calling on the FCC to act to pre-

serve the format as a “unique cultural resource” and as “an

integral and essential factor in maintaining’’ the region as ‘‘the

leading musical [area] in the world.’’ See, e.g., Res. Oct. 21, 1974.

N.J. Gen. Assembly; Res. Dee, 16, 1974, White Plains Common -

Council; Res. 381 (Nov. 14, 1974), N.Y.C. Council.

*A national study conducted in the early 1970s indicated that

radio was by far the leading source of classical music for the

public. Television brought classical music to a few more people

than radio over the course of a year, but radio slightly led records

and tape and by far out distanced television and live performances

as the leading source of symphonic music or opera for regular

listeners. Ford Foundation, The Finances of the Performing .Arts,

vol. 2 (1974), Tables 5-6, p. 6; Tables B14-B23, pp. 86-91.

* For instance, the administrator of the Opera Theatre of Saint

Louis, who founded the company five years ago and led it tu its

current million dollar budget season, commented that ‘‘if it weren’t

for the Met, we all wouldn't be alive, because the number of

people who listen to it on the air is staggering, and that has

educated our public.’ Jacobson, “The Spirit of Saint Louis”,

44:22 Opera News 22, 23 (June 1980).

4

unique in that listening area. New York City has one of

the country’s only jazz stations, two very different classical

music stations, a Caribbean music station and a single

Country and Western music station. There is only one

News and Information and one Beautiful Music station in

Wilmington, Delaware. Minneapolis, Minnesota, has a jazz

station and one specializing in religious programs. In

Nevada, Carson City has a unique religious station while

Reno has a Big Band and a News/Talk station. Albu-

querque, New Mexico, has two stations programming for

different religious sects and a classical music station.’

In Providence, Rhode Island, only one station offers

Oldies* while in Sioux Falls, South Dakota, only one

programs Beautiful Music.* Seattle, Washington, offers

three different religious stations, an All News one and an

AM/FM jazz station.”

Listeners frequently are devoted to particular music

formats."' If a favorite station proposes to change format,

*See Radio Programming Profle (BF/Communications Serv-

ices, Inc. Winter 1979), vol. 1, pp. 182-7, 196-213, 355-6; vol. 2,

pp. 230-2.

’ Station Programming Profiles—Albuquerque (Katz Radio

July 1980).

* Radio Programming Profile, supra, vol. 1, pp. 257-60.

*°62:6 SRDS Spot Radio Rates and Data (Standard Rate and

Data Service, Inc. June 1980), pp. 751-2.

° Radio Programming Profile, supra, vol. 1, pp. 310-7.

'! Most of the radio audience listens to a number of different

stations during the week (turning to news in the morning and to

music at night, for instance, or hunting along the dial for a song).

Review of the April/May 1978 Arbitron listenership surveys of

the top ten markets showed that adults listened to an average of

2.6 stations per week. Broadcasting (October 9, 1975), p. 47.

Similar calculations bused on a later survey of the New York

metropolitan area show that an average adult listens to 2.7 of the

45 radio stations with audiences large enough for sampling. See

ARB Jan./Feb. 1980 ( Arbitron Ine.), pp. 70-1.

(footnote continued on following page)

5

they sometimes protest."” When they do so, they expect

petitioner FCC, as the agency which licenses stations, to

act. Thus, when WNCN in New York dropped its call

letters and classical music format in favor of progressive

rock in 1974, over 105,000 people signed petitions calling on

petitioner FCC to hold hearings. Responding to their con-

stituents, the Governors-elect of Connecticut and New

York, twenty-three Congresspersons,” thirty-six New York

State legislators." the New Jersey General Assembly,”

as well as about fifteen Connecticut and New York local

legislatures, made inquiries and sought to induce petitioner

(footnote continued from preceding page)

In contrast, a large part of the audience for unique format

stations listens only to its favorite station. For instance, the New

York area survey showed that almost 71 thousand listeners tune

only to the Country and Western statien, about 39 thousand listen

only to one of the classical music stations while over 19 thousand

listen only to the other classical music station, and about 10

thousand listen only to jazz. Id. pp. 234-5.

** While the cases where citizens vigorously fought format

changes are better known, it should be noted that man) format

changes are made between temporarily popular entertainment

styles. An Arbitron survey of 500 stations in the top 25 markets

indicated that between 1978 and 1979, for instance, less than ten

percent of the Mellow, Good Music, Country, Classical and

Jazz stations changed format while over twenty-five percent of the

Adult Contemporary, Top 40 Disco. Progressive Rock. MOR

[Middle of the Road], and Oldies stations did. Broadcasteng

(June 9, 1980) p. 46. When a fad passes. only a small group

of partisans may regret a station's format change.

Even when a format is unique and well-established, its audience

may not protest because they are not aware of Their legal rights

or because they prefer what they will be getting or do not eare

enough for what they are losing. Thus, in the past three years

alone, unique classical music formats were abandoned without

significant public protest in Baltimore, Sacramento and San

Antonio.

* NY. Times, Nov. 30, 1974, p. 61

* S. Res. 32. 1975-1976 Reg. Sess, N.Y.S. Legis. A. Res. 85,

1975-1976 Reg. Sess.. N.Y.S. Legis.

Res. Oct. 21, 1974, NJ. Gen. Assembly.

6

FCC to act."* Comparable public protests involving local,

State and Federal legislators were made in, for instance,

the 1976 protest over the threatened loss of WRVR’s

unique Black jazz format in New York City and the 1976-8

protest over KMPX, a ‘‘big band’’ sound station in San

Francisco. Whether the public protests attract audience

interest or whether station managements simply work

harder when they know how much their audiences care,”

it is notable that in at least the cases of WNCN, WRVR

and KMPX, the allegedly unprofitable format that ‘‘had’’

to be changed is still on the air, apparently at a profit”

and certainly to the benefit of its listeners.

B. News, Public Affairs and Acculturization.

As to A iici’s second concern, each of the States joining

in this amici brief also has a very real and substantial

interest in having its citizens informed of news and public

affairs. Radio is a key means of serving that interest, for

it is the primary daytime source of news for 46% of all

adults nationwide.” Radio stations broadcasting only

news have proliferated in the last decade. Providence,

* See, e.g. Res. 381 (Nov. 14, 1974), N.Y.C. Council: Res.

Dee. 16, 1974, White Plains Common Council.

‘7 A few months after the new licensee of KMPX agreed to

retain the “big band” sound, the station manager attributed its

“fattening advertising revenues” to both a better station manage-

ment and an “increased share of audience. .. .” Carroll, “The

Son of the Big Band Sound: A Return to Musie of the Thirties,”

San Francisco Eraminer and Chronicle, Dec. 23, 1979 ( Datebook

Section ).

'* The general manager of WNCN following its return to classi-

eal musie format recently said, “Not only did we survive when

everybody said we wouldn't survive—we prospered."” Whitman,

“A Station Rises, Phoenix-Like, From Its Own Ashes,” 22-8

Midison Avenue (August 1980), p. 93.

Radio Facts | Radio Advertising Bur. 19%), ». 11. A 1977

New York area survey indicated that in normal periods adults

get 50 of their news from radio, 31% from television, 19%

from newspapers and 1% from magazines. Ibid.

7

Reno, Seattle and Wilmington, for instance, each have one

while New York City has two very different ones.”

Radio is particularly important in reaching minority

racial and ethnic groups. Due to the problems of dis-

tributing publications in an economical, timely manner to

wide-spread, relatively small clienteles, most print media

serving minority groups are national publications,

published weekly or less often." | Moreover, minority

groups spend considerably more time listening to

specialized formats aimed at their interests than to stations

aimed at the general public.** Radio is not only a means

by which minority groups receive information about the

* Radio Programming Profile, supra, vol. 1, pp. 196-213, 257-

60, 310-7, 355-6; vol. 2, pp. 230-2.

** See generally Minority (Ethnic Media Guide, USA 1980 (Di-

rectories International, Inc, 1979), Part I; Print Media, pp. 1-72.

For instance, Ukrainians in New York City have a choice of cne

daily, two weekly, one biweekly and one five times yearly national

newspapers and magazines but only one weekly local newspaper.

The publications are available at several stores in traditional

Ukrainian neighborhoods, but the Ukrainian population itself has

substantially spread from those areas and must either travel con-

siderable distances, subscribe by mail, or forego them.

*2 A 1978 survey indicated that 50% of all radio listening by

Blacks was to Black stations and 41% of all radio listening by

Hispanics was to “Spanish formatted” stations. “How Blacks and

Spanish Listen to Radio (Report 4)" (Arbitron Co. 1978), p. 4.

Contrary to the usual radio listener's custom of listening to

a number of different stations during the week, see p. 4 n. 11,

supra, nearly 387 thousand persons in the New York metropoli-

tan area listen only to one of the Black format stations and about

232 thousand listen only to one of the Spanish stations. ARB

Jan./Feb. 1980, supra, pp. 234-5. During the course of a week,

one of the leading New York City Black stations will have been

listened to by over 778 thousand (42) of the Black adults in

the 28 county “Area cf Dominant Influence’. Scarborough Re-

port—New York Market 1980 (Scarborough Research Corp.),

p. 22.

political process,” it is a focal point for shaping views

and developing leaders on minority problems.”

Commercial radio stations in each of the amici States

offer some foreign language programming. There are pro-

grams for most major ethnic groups, although most such

programming is aired only a few hours a week at less popu-

lar times of the day and is rarely available throughout the

State.” The importance of radio for ethnie minorities is

illustrated most dramatically by Nevada where 41.7% of

the population in 1970 reported a mother tongue other than

English. Most of the Navajos there live in remote areas

2> The Court has noted the role that an ethnie group's *‘cul-

tural and language barrier” can play in making “participation

in community processes extremely difficult, particularly . . .

with respect to . . . political life.” White v. Regester, 412

US 755, 768 (1973). Radio is a powerful tool by which the

group ean overcome the barrier.

** For example, it was reported, V.Y. Daily News, June 15, 1980,

p. 7, eol. 1, that the new Special Adviser for Hispanie Affairs to

the Mayor of the City of New York had “establish[ed] the kind

of political credibility that won him almost unanimous approval

for the . . . City Hall post’ by hosting a Spanish language public

affairs radio program. “One of his conditions for taking the job

was that he be allowed to keep his radio show.” Jbsd,

** Major ethnic groups that receive either no foreign language

programming or very little (5 hours or less a week) include French,

German, Italian, Polish, Spanish and Yiddish speakers in Dela-

ware, Czech. Finnish, French, German, Polish and Swedish in

Minnesota; French, German and Italian in Nevada; German in

New Mexico, German, Greek, Hungarian, Russian, Slovak, Swedish,

Ukrainian and Yiddish in New York; French and Italian in

Rhode Island. tierman in South Dakota: and Czech, Dutch, French,

German, (ireek, Italian, Polish, Russian and Serbo-Croatian in

Washington See Minornty Ethnic Media Guide, supra, pp. 118,

124-8, 131-4, 148. 158-9, 163, 166, 176, 178, 1846, 192, 194-5;

US. Bureau of Censns, 1970 Census of Population, Characteristics

of Population, vol. 1, pt. 9 | Delaware), Table 142, p. 191; id,

vol 1, rp’ 25 Minnesota : Table 142, p 514 wl, vol 2. pt 3n

Nevada . Table 142. p 21%. td, vol 1. pt. 33 (New Mexico ,

Table 142, p. 272. id., vol. 1, pt. 34 New York), sect. 2. Table

142, p. 72; 14, vol. 1, pt. 41 | Rhode Island), Table 142, p. 269

id., vol 1, pt. 43 |Sonth Dakota), Table 142. p. 319; od, vol. 1,

pt. 49 Washington , Table 142, p. 359

9

and do not have access to television. Few of them are literate

in English or the recently developed written Navajo lan-

guage. They thus depend for news and public informa-

tion primarily on one radio station broadcasting 10 hours

a week in Navajo and another splitting 50 hours a week

between Zuni and Navajo.” Considering, therefore, how

relatively little ethnic and racial minority programming

there is, it is a surprisingly strong force assisting certain

minority groups to integrate themselves into the nation’s

majority culture without losing their own roots and other

groups to participate without losing their separate

identities.

C. Local Regulation of Cable Television.

Finally, each of the States joining in this amici brief has

a very real and substantial interest in local regulation of

community antenna television (CATV) or cable television

systems. A decision herein on broad First Amendment

grounds might have implications for local regulatory ac-

tion. The People of the State of Delaware have a unique

and specific interest in the regulation of signal content in

the context of cable carriage because Delaware has no

indigenous commercial television station.

New York permits local government to grant cable

franchises, N.Y. Exec. Law 4819," but the State Commis-

sion on Cable Television retains the final authority to grant

or deny a certifieate of confirmation. N.Y. Exee. Law

4821. The Commission is *‘to promote . . . [a cable in-

dustry] responsive to community and public interest’’ and

* Minonty Ethnic Media Guide, supra, pp. 132-3.

** Small cable systems (fewer than 50 subscribers), most master

antenna systems and subcontracting leasors are exempt. N.Y. Exec.

Law §812(2) (McKinney Supp. 1979)

There are two different sets of §{ 811 ef seg. in the Executive

Law. The sections cited herein are Article 28 (McKinney Supp.

1979).

°

10

to set standards and rules ‘‘to assure that cable television

companies provide adequate, economical and efficient

service to their subscribers, their municipalities . . . and

other parties to the public interest.’’ N.Y. Exec. Law

§811. Censorship is prohibited, N.Y. Exec. Law § 829,”

but an affirmative obligation to provide access channels is

imposed, N.Y. Exec. Law §815(2)(b), and the Commis-

sion is to ‘‘encourage . . . developing programming for

the public interest,’’ N.Y. Exec. Law § 811.

The cable industry has grown rapidly in New York, in

terms both of franchises and subscribers.” It is expected

to continue rapid growth.” The State Commission is

exploring whether there is sufficient cable capacity to meet

28 Inder N.Y. Exec. Law § 829 subdivision (a), the Commission

is not to promulgate any rule or regulation which would interfere

with the right of free speech by cable. Under subdivision (b),

the franchising municipality may not prohibit, limit, or impose

discriminatory or preferential fees to encourage or discourage,

particular programs or classes or types of programming. Under

subdivision (ce), no cable eompany can prohibit or limit any pro-

gram or class or type of programming presented over a leased

ehannel or over a channel made available for public access or

educational purposes.

2 There were 556 franchises serving about 800 thousand sub-

seribers in 1976. By 1979 there were 679 franchises and 1.2 mil-

lion subseribers. N-Y.S. Com'n on Cable Television, Cable Com-

munications in New York State: An Agenda for Government In-

volvement (Docket No. 90112) (August 1979), Appendix A, “Stat-

isties: Cable Television Service in New York State’’, pp. 176-7,

181.

” As of June 1979, there were 246 franchise applications “in

process."” Short-run projections were for 500 thousand additional

subseribers in the New York City area, 165 thousand in neighbor-

ing counties, and 65 to 70 thousand in major urban areas upstate.

Id., pp. 175-6, 179.

Nationally and in New York about one in five households had

eable service in 1979 With the estimated 730 thousand new sub-

aeribers statewide, about 1.9 of New York's 6.5 million house-

holds, or 30°, will be connected

11

needs in view of the large number of local systems with no

or few unused channels.”

Delaware’s Public Service Commission has ‘‘exclusive

original jurisdiction and regulation’’ over most of the

State’s cable srstems. Those municipalities which had

express or implied charter powers in June 1974 to grant

franchises continue to have those powers, but the Com-

mission has ‘‘supervision and review jurisdiction and

regulation’’ over them. 26 Del C. 4 201.7 In particular, the

Commission can change or modify a municipality-granted

franchise “whenever the public interest requires” and can

issue a franchise if a municipality’s refusal of one ‘‘is not

in the public interest... .*’ 26 Del. C. § 608. All other

cable systems" are franchised and regulated directly by

the Commission. 26 Del. C. § 601. County frauchising and

regulation has been preempted. 26 Del. C. § 616.*

The State of Minnesota’s regulatory system is quite

similar to New York’s. Local government grants franchises

in accordance with standards to protect ‘‘the public in-

terest’’ and procedures set by the State Cable Communica-

tions Board. Minn. Stat. $4 238.01, .02(5), .04(1), .05, .08(1)

(1978). The Board has final authority to confirm or refuse

operating permission. Minn. Stat. § 238.09 (1978). Censor-.

ship by the Board or a cable company is prohibited. Minn.

“7d., pp. 91-2; Appendix B, “Inventory of Cable System

Channel Capacity”, pp. 183-193.

* The Delaware statutes cited herein are published in the 1978

Cum. Supp.

* Small cable systems (fewer than 50 subscribers), master an-

tenna systems and subcontracting leasors are exempt. 26 Del. C.

§ 102(4).

* Pre-June 1974 cable systems under municipal or county

franchises, and even those without franchises, were given certifi-

cates of “public convenience and necessity” by the Commiiasion, 26

Del. C. §§ 203(b), 607-8, but were required to come into com-

pliance with the same conditions as operators subsequeritly granted

franchises by the Commission, or risk revocation, 26 Del. C.

$§ 606-8.

12

Stat. § 238.11 (1978). Access channels must be provided,

Minn. Stat. §§ 238.05(2)(b), .17(3)(b) (1978), and the State

Board is to encourage development of programming for the

public interest, Minn. Stat. § 238.01 (1978). Two significant

differences from New York are that two or more muni-

cipalities can by ordinance set up a Joint Cable Com-

munications Commission to exercise the member municipali-

ties’ franchising powers, Act of April 24, 1980, Ch. 614,

§ 124, 1980 Minn. Sess. L. Serv. 1308 (West), to be codified

as Minn. Stat. § 238.08(5), and municipalities are not

prohibited from encouraging or discouraging types or

classes of programming.

The Nevada Public Service Commission supervises and

regulates cable television as a public utility. NRS

704.020(f), 711.030, .040, .050, .140 (1979). It issues a

‘‘eertificate of public convenience and necessity’’ based on

a showing of ‘‘public need for the proposed service or

acquisition.” NRS § 704.330(1), 711.090 (1979). Loeal

government power to franchise and regulate cable has been

preempted. 1974 [Nev.] Att’y Gen. Op. No. 174; 1964

[Nev.] Att’y Gen. Op. No. 128. This Court has upheld

the Nevada regulatory svstem against claims that it unduly

burdened interstate commerce, that it had been preempted

by Federal statutory or regulatory action, and that it

violated due process by promoting destructive competition.

TV Py, Inc. v. Taylor, 304 F. Supp. 459 (D. Nev. 1968)

(3-judge court), affd. 396 U.S. 556 (1970).

The State of New Mexico does not regulate cable televi-

sion.” Municipalities have franchising power under the

* The only statutes explicitly referring to cable television are

the prohibition on theft of services, NM. Stat. Chap. 63, Art. 10

(1978), and the provisions to prevent excavation damage to cable

television lines, N.M. Stat. Chap 63, Art. 11 (1978). There is

also explicit authormty for counties or municipalities to fund tele-

vision translator stations (ie. relay stations to beost power and

rebroadcast a signal) that were not originally and are not now

rin by a commercial television station, N.M. Stat. Ԥ 5-2-1,-2

1978).

13

home rule provisions of the State Constitution, Art. 10,

§6. See 1972 Op. [N.M.]} Att’y Gen. No. 72-29.

The State of Rhode Island franchises and regulates

cable through its Division of Publie Utilities and Carriers.

Local government has no statutory role in the process. R.I.

Gen. L. §§ 39-19-3,-6.°%° Franchise applicants must show

‘that the proposed operation will be consistent with the

public, interest’. R.I. Gen. L. §39-19-4. The Division is

to ‘‘supervise and regulate . . . so far as may be neces-

sary to prevent such operation from having detrimental

conseq'iences to the public interest . . .’%. R.I. Gen. L.

§ 39-19-6. The Public Utilities Commission, a separate

body from the Division but chaired by the Division’s

Administrator, R.I. Gen. L. § 39-1-3, can revoke, suspend or

alter an operator’s certificate after a hearing for ‘‘willful

violation’’ of the statutes, R.I. Gen. L. §39-19-8, presum-

ably including failure to serve the public interest. The

Commission may also ‘‘revoke or refuse to renew the

license of any CATV company whose programs originat-

ing within this state are offensive to commouly accepted

standards of morality and decency of the community.”’ 74.

The State of South Dakota has deiegated all regulatory

and franchising authority to local government. S.D.C.L.

“Untul Chapter 240 of the Public Laws of 1969, enacting R_I.

fren. L. §§39-19-1 ef seq, the State had no laws explicitly deal-

ing with cable. In Nugent v. City of East Providence, 103 R.1.

518, 523, 238 Ald 758, 761 (1968), the Court held that the gen-

eral power to license, regulate and charge fees for occupations and

businesses was an attribute of sovereignty pertaining to the State

and could not be exercised by local goevrnment absent delegation

in express terms or by necessary implication. It further held that

neither the home rule provisions of the State constitution nor

Statutes authorizing municipalities to acquire, hold and dispose of

property, under certain circumstances, conferred the right to reg-

ulate a business. Jd., 103 R.I. at 524-7, 238 A.2d at 762-3. It

declined to rule on whether eable was a public utility. Jd., 103

KT. at 529, 238 A.2d at 764. Chapter 240 codified the case's hold-

ing and defined cable as a “communications carrier”, subject to

the Division's jurisdiction. RI. Gen. L. §39-19-2. The Rhode

Island statutes cited herein are General Laws of 1956 (Reenact-

ment of 1977).

14

§§ 9-35-17,-18 (Supp. 1979).*7 Municipalities ‘‘may pre-

scribe reasonable quality standards’, S.D.C.L. § 9-35-20

(Supp. 1979), clearly including signal quality but arguably

including overall service quality.

Cable is considered a ‘‘communication utility’’ in the

State of Washington. RCW 35.96.020, 36.88.420 (1967).

A company using the public ways for wire or cable com-

munications must obtain a franchise from local government,

RCW 35.27.330 (1965),°* and if necessary, a right of way

from the county, RCW 36.55.010 (1963). The newly re-

organized Public Broadcasting Commission has been man-

dated to encourage the development of a State system of

public, not-for-profit broadcasting, including cable televi-

sion, but may not operate its own station or originate its

own programs. Sections 2-4, 8, Chapter 123, Laws of

1980, amending Chap. 28A RCW.”

* Until the enactment of Chapter 52 of the Laws of 1972, the

State had no laws explicitly dealing with cable. In Aberdeen

Cable TV Service, Inc. vy. City of Aberdeen, 85 S.D. 57, 62-3

(1970), cert. den. 400 U.S. 991 (1971), the Court found that

S.D.C.L. § 9-35-3 was nonetheless applicable. The use of local

streets for the system's wiring was held to make cable a “common

earrier” subject to the State Publie Utility Commission's super-

vision and to require approval of franchises by local voters.

In response, the Legislature enacted Chapter 52. The new

laws specifically found that cable required local regulation,

S.D.C.L. § 9-35-17 (Supp. 1979), and gave municipalities “ex-

elusive jurisdiction” to approve franchises, among other things,

“by ordinance” and “(n]otwithstanding the provisions of § 9-35-3

_ . .": that is, without submitting the proposition to a vote of

the electors. S.D.C.L. § 9-35-18 (Supp. 1979).

* After obtaining a franchise for one purpose, e.g., telephone,

the company does not have to apply for a separate franchise to

operate a CATV system. (ps. [Wash.| Att'y Gen. 65-66, No. 92.

* Washington also permits a county without a CATV system to

set up a Television Reception Improvement District to raise funds

for the construction, maintenance and operation of a television

translator station. A county with CATV can also establish such a

District if it has a translator station established before August

1971. RCW 36.95.020 (1971). Before establishing a District,

the Board of County Commissioners must decide, after a public

(footnote continued on following page)

15

Summary of Argument

Citizens own the airwaves and lease radio frequencies

to broadcasters on terms and conditions to use as trustees

for limited periods. One of those conditions is that broad-

casters serve the “public interest”.

Under this Court’s decisions, citizens have a right to a

diversity of formats on the airwaves under the “public

interest” standard of the Communications Act of 1934 and

under the First Amendment. Without judging the value

or merit of a particular radio station format, petitioner

FCC can determine whether it is duplicative of other

formats in the listening area. Would-be broadcasters who

propose duplicative formats need not be granted licenses.

Licensees who have lessened diversity by abandoning a

unique format need not be granted a renewal.

When citizens see that their property has been misused,

they have a First Amendment right to petition for re-

dress of their grievances to petitioner FCC. Peti-

tioner FCC can and should deveiop reasonable standards

to accommodate both listeners’ and broadcasters’ First

Amendment rights in the infrequent situations where the

market does not adequately protect diversity on the air-

waves.

Cable television is largely a matter for State regula-

tion and a wide variety of very different approaches are

being followed in response to local conditions. The deci-

sion below was made in the context of an unusual admin-

istrative proceeding and a different regulatory and statu-

tory system. To protect the freedom of the States to

explore other possible regulatory approaches, the Court is

respectfully urged to note that its decision herein need not

necessarily apply to State regulation of cable television

systems.

(footnote continued from preceding page)

hearing, that it “would serve the public interest.” RCW 36.95.040,

050 (1971). Once established, the District station must “serve

the public interest, convenience, and necessity .. .” RCW 36.95.-

010 (1971). It may not originate programs. RCW 36.95.130(2)

(1971).

16

POINT |

Radio listeners are entitled under the First Amend-

ment and the Federal Communications Act of 1934 to

diversity on the air. When a licensee threatens to

deny listeners their entitlement, they have a right under

the First Amendment and the Communications Act to

petition the Federal Communications Commission to

protect that diversity.

This Court held in Red Lion Broadcasting Co., Ine. v.

FCC, 395 U.S. 367, 390 (1969), that:

‘‘Because of the searcity of radio frequencies, the

Government is permitted to put restraints on licensees

in favor of others whose views should be expressed on

this medium. But the people as a whole retain their

interest in free speech by radio and their collective

right to have the medium function consistently with

the ends and purposes of the First Amendment. It is

the right of the viewers and listeners, not the right of

the broadeasters, which is paramount . . . It is the

right of the public to receive suitable access to social,

political, esthetic. moral, and other ideas and ex-

periences which is crucial here. That right may not be

constitutionally abridged either by Congress or by the

FCC.”*

Red Lion upheld the Fairness Doctrine, requiring licensees

“to give reply time to answer personal attacks and polit-

icai editorials”, id. at 396, and noted that the FCC, ¢d. at

395 :

“neither exceeded its powers under the [Communica-

tions Act] nor transgressed the First Amendment in

interesting itself in general program format and the

kinds of programs broadcast by licensees. Nationel

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

(1943).”

17

In NBC v. United States, supra, the Court had held that

denial of a station license under “the public interest, con-

venience, or necessity” standard of the Communications

Act of 1934, 47 U.S.C. §§ 307(a), (d), 309(a), 310 and 312,

was “not a denial of free speech”. 319 U.S. at 227. It

specifically interpreted the “public interest” criterion to

permit the FCC to refuse a license to a person, even though

“financially and technically qualified”, who wished to ‘‘pre-

sent a single service over . . . two stations” in one area.

Id. at 218.

The Court was presented with format issues in FCC v.

Sanders Brothers Radio Station, 309 U.S. 470 (1940),

but resolved the case on other grounds. The Sanders

Brothers, licensee of an existing 24-hour radio AM sta-

tion, had sought to intervene before the FCC in op-

position to a construetion permit application for a com-

peting day-time only station. The existing station in-

tended to continue offering “sponsored network programs”,

while the permit applicant planned

“a program service especially designed to serve the

agricultural and educational needs of the surrounding

rural area ‘far more comprehensive in scope than pro-

grams of the same genera) character now broadcast by

{the Sanders Brothers station]': and [to] broadcast

* The standard is set forth explicitly in the first four of the

cited provisions as a condition for granting, renewing or approv-

ing the transfer of a station license or for granting a construc-

tion permit. Section 312, the fifth provision, originally covered

both revocation (subdivision a) and modification (subdivision b)

of licenses and construction permits. Chapter 879, July 16, 1952,

66 Stat. 716, amended § 312 extensively and transferred the sub-

stance of subdivision b, including its express use of the “public

interest’’ standard for modifications, to its present location in

$316(a). Subdivision a of § 312 has never explicitly incorporated

the “public interest” criterion, but arguably that standard has

always been implicit in the authority to revoke a station license

or construction permit for conditions “which would warrant re-

fusing to grant a license or permit on an original application . . .”

18

stock market reports daily, while {the Sanders

Brother Station] does not and will not.” Sanders

Brothers Radio Station v. FCC, 106 F. 2d 321, 325,

326 (D.C. Cir. 1939) [quoting from FCC brief], revd.

309 U.S. 470 (1940).

The Circuit Court found that the different formats offered

might give rise to economic competition and that the FCC

had to consider possible injury to an existing station be-

fore granting a construction permit. bid.

In reversing, this Court noted the primacy of listeners’

rights over broadcasters, 309 U.S. at 475-6:

“Plainly it is not the purpose of the | Federal Com-

munications] Act to protect a licensee against competi-

tion but to protect the public. Congress intended to

leave competition in the business of Jroadcasting

where it found it, to permit a licensee who was not

interfering electrically with other broadcasters to sur-

vive or succumb according to his ability to make his

programs attractive to the public We conclude

that economic injury to an existing station is not a

separate and independent element to be taken into

consideration by the Commission in determining

whether it shall grant or withhold a license.”

At the same time, the Court noted that totally unreg-

ulated competition between stations with different formats

was not within the intent of the Communications Act. The

FCC was required to consider economic loss to stations

with competing formats in terms of its effect on the service

provided listeners as one of the factors under the pub ie

interest standard. /d. at 476. If, for instance, the new

station’s format was not likely to attract enough listeners

to become profitable but instead to draw enough listeners

and advertising revenue from the existing station's format

to render it unprofitable, then the FCC should consider the

potential loss to listeners of the services of both formats

due to economic injury as a factor in determining whether

19

to issue a license. Ibid. In the case at hand, the Court

found adequate support in the record for the FCC’s de-

termination that “there was need . . . for the services

of both stations”, and that the public interest, convenience,

and necessity would be served by granting the construc-

tion permit. J/d., at 472, 475.

Listeners seeking to enforce their rights under this

Court's decisions unfortunately have repeatedly seen peti-

tioner FCC treat their claims with “[a] curious neutral-

ity-in-favor-of-the-licensee”, to use Mr. Chief Justice, then

Cireuit Judge, Burger's phrase in an analogous case,

Office of Communication of the United Church of Christ

v. FCC (11), 425 F. 2d 543, 547 (D.C. Cir. 1969).

In the original Office of Communication of the United

Church of Christ v. FCC (1), 359 F. 2d 994, 1006 (D.C.

Cir. 1966), then Circuit Judge Burger held that the FCC

had to allow standing to one or more members of the

public to assert and prove their claims in their petition

to deny renewal of a television station license. Those

claims included format issues® as well as violations of

the Fairness Doctrine.

The decision in UCC v. FCC (1) clearly contemplated

that in future license renewal proceecings, listeners would

intervene to assert their legitimate interests in such format

issues as “programming deficiencies or offensive overcom-

mereialization.” Jd. at 1005. Mr. Chief Justice Burger

even suggested, ihid.. that the FCC recognize that

“*\slome consumers need bread: others need Shakespeare

‘and| consider the people's needs more significant

than administrative convenience. [Cahn,) Law in the Con-

“ Petitioners claimed the station “failed to serve the general

public because it provided a disproportionate amount of commer-

cials and entertainment”, id. at 998, and because its programs gave

“very much less television exposure” to Negro individuals and

institutions than to others and were “generally disrespectful

toward Negroes”. Jd. at 998 n. 4.

20

sumer Perspective, 112 U. Pa. L. Rev. 1, 13 (1963).” He

noted that, 359 F. 2d at 1003:

‘¢4 broadeaster has much in common with a newspaper

publisher, but he is not in the same category in terms

of obligations imposed by law. A broadcaster seeks

and is granted the free and exclusive use of a limited

and valuable part of the public domain; when he ac-

cepts that tranchise it is burdened by enforceable pub-

lie obligations. A newspaper can be operated at the

whim or caprice of its owners; a broadcast station

cannot. After five decades of operation the broadcast

industry does not seem to have grasped the simple

fact that a broadcast license is a public trust subject

to termination for breach of duty.’’

Mr. Chief Justice Burger's observations in UCC vy. FCC (1)

were, of course, the precedential base for the first format

case, Citizens Committee to Preserve the “Voice of Arts in

Atlanta” v. FCC, 436 F. 2d 263, 272 (D.C. Cir. 1970), and

remain largely applicable to the present Format Inquiry

on certiorari review.

Reviewing programming issues, this Court has recog-

nized that the First Amendment and the “public interest”

standard of the Communications Act entitle listeners to

variety in the radio programming aired, including the

esthetic experience provided by it. Red Lion Broadcast-

ing Co. v. FCC, supra, 395 U.S. at 390: NBC vy. United

States, supra, 319 U.S. at 217-8. It might even be permis-

sible in some instances to override a broadcaster’s journal-

istic judgment in selecting programs although dilution of

licensee responsibility for programining is not favored,

Columbia Broadcasting System, Inc. v. Democratic Na-

tiona’ Committee, 412 U.S. 94, 131 (1973) (Buroer, C.J.,

opinion of the Court), and it is preferable for the FCC

to state the goal to be met (e¢.q., Fairness in covering

publie affairs, no indecent language), allowing broadeasters

discretion in programming to meet that obligation at peril

of losing their licenses if the FCC finds that the pro-

21

gramming aired has failed to achieve that goal.** FCC v.

Pacifica Foundation, 438 U.S. 726, 748-51 (1978); CBS

v. DNC, supra, 412 U.S. at 131 (Burcer, C.J., opinion of

the Court); id., 412 U.S. at 132, 135 (Srewart, J., con-

curring). One goal implicit in the Communications Act is

to foster diverse formats and in granting a license, the

FCC is to consider possible economic injury to competitors

with different formats only insofar as it affects (e.g.,

through station failure) the adequacy of service to lis-

teners and the public interest. FCC v. Sanders Brothers

Radto Station, supra, 309 U.S. at 476. Moreover, the FCC

may refuse a license to a broadcaster whose proposed pro-

gramming would lessen, or fail to enhance, diversity. NBC

v. United States, supra, 319 U.S. at 218. If, then, a broad-

caster proposes to abandon a unique format, one found to

foster diversity and serve the public interest, nothing in

this Court's decisions prevents the FCC from denying him

a license for that frequency.**

** Evaluation of a station format’s uniqueness could be accom-

plished with a minimum of intrusiveness, See p. 24 n. 48 infra.

It connotes no approval or condemnation of content (while

trash is quite common on the air, unique trash is still unique).

To the extent that consideration of programming in license deci-

sions might be viewed as content-based regulation, it is no more

intrusive than review of the content of the expression in libel,

commercial speech or obscenity cases. See Consolidated Edison

Co. of New York, Inc. v. Public Service Com’n of New York, ——

U.S. ——, 100 S. Ct. ——, 48 USLW 4776, 4778 n. 5 (June 20,

1980).

*° If a prospective licensee’s arguable free speech right to offer

a duplicative format, see Brief of Insileo Broadcasting Companies,

Point II, outweighed radio listeners’ right to diverse formats,

NBC y. United States, supra, 319 U.S. at 218, on the initial grant

of license, then it might not be permissible to deny a governmental

benefit, renewal of a license, because the broadcaster had dimin-

ished diversity. See Branti v. Finkel, U.S. ——, 100 S. Ct.

1287, 1293 (1980), citing Perry v. Sindermann, 408 U.S. 593, 597-8

(1972); Spetser v. Randall, 357 U.S. 513, 526 (1958). But Red

Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390, establishes

that the First Amendment interest of listeners in diverse formats

outweighs the rights of current or potential broadcasters. Con-

sideration of the extent to which a format is unique is thus per-

missible in both granting and renewing licenses.

22

The question presented by the decision below is whether

listeners have the right to call to account a broadcaster

who freely chose to adopt a unique, financially viable“

format and built up a substantial audience for it, but later

proposes to abandon that format and its listeners (610

F. 2d at 842-3, 851; App. 4a-8a, 24a-25a).** It is not ‘‘pro-

gram supervision” or “editorial control” to review what

has already been broadeast to see if it met with the public

interest in unique formats, Cf. CBS v. DNC, supra; FCC v.

Pacifica Foundation, supra. It does not interfere with edi-

torial selection of individual programs to inform an appli-

cant that he will not receive a license for a duplicative

format. NBC y. United States, supra. How then does it

become impermissible to tell a broadcaster that his applica-

tion will be favored if it promises a unique format and may

be denied if he abandons a format that has well served the

public interest?

Amici will not attempt to address herein petitioners’ mul-

tifarious objections to consideration of formats in licens-

“Tn many cases the financial viability question will be more

important than uniqueness. A common thread linking many of

the format cases thus far has been listener allegations of deliberate

station mismanagement in order to justify abandoning a unique

format as unprofitable. There is thus added significance in the

fact that most format cases have been settled with the old format

preserved or restored and that most such stations appear to be

operating at a profit. See p. 6, supra.

* The court below noted that its decision applied to considera-

tion of format changes as a factor in granting initial license ap-

plications, license renewals, or approval of transfer applications,

but did not require FCC approval of format changes during a

license’s term (610 F, 2d at 849 & n. 29; App. 20a & n. 29).

23

ing.“* We do believe it important to note that the decision

of the court below does not prescribe how petitioner FCC

must treat format questions; it merely requires petitioner

FCC to make an honest attempt “to develop administra-

tive standards instead of simply abdicating . . . ” (610

** Many of petitioners’ arguments are restatements of those

raised and answered below. Thus, the Court of Appeals’ format

decisions do not require petitioner FCC to regulate formats in

all cases; they presume market forces will ordinarily provide di-

verse formats. All that is required is that petitioner FCC consider

format change as a factor in evaluating a licensee’s performance

under the public interest criterion of the Communications Act

(610 F. 2d at 851; App. 24a-25a). So viewed, the format deci-

sions no more impose common carrier obligations, violate the First

Amendment, or constitute censorship than does the Fairness Doc-

trine (610 F. 2d at 851-2, 854-5; App. 26a, 3la, 33a). Requiring

broadcasters to meet programming requirements in order to re-

ceive a license or renewal no more infringes their right to free

speech than requiring motorists to agree to obey traffic laws in-

fringes their fundamental personal, unconditional, Dunn v. Blum-

stein, 405 U.S. 330, 388, 341 (1972); Shapiro v. Thompson, 394 U.S.

618 (1969), right to travel. Petitioner FCC does not appear to

have seriously attempted to implement the format decisions, and

its administrative impossibility objections seem captious (610 F. 2d

at 849.54: App. 2la-32a). See p. 24 nn. 47-8, infra. The format

decisions have not, on petitioner FCC's own showing, stifled

innovation (610 F. 2d at 851; App. 25a), and the format decisions

do rely on competition for diversified programming except when

it is clear the market has failed (610 F. 2d at 851; App. 24a).

The court below was careful to preserve a proper relation with

the ageney by giving all due deference to petitioner FCC’s inter-

pretation of its statute but reluctantly recognized that that interpre-

tation could not be sustained. It left petitioner FCC free to de-

velop an interpretation consistent with this Court’s decisions and

to implement that reading of the statute (610 F. 2d at 852-5; App.

27a-33a).

Not surprisingly, petitioners have abandoned in this Court their

“administrative nightmare” argument (610 F. 2d at 847-9, 857;

App. lva-20a, 38a). They do not aitempt to explain the apparently

serious procedural irregularities (610 F. 2d at 846-7, 850, 856;

App. I4a-l7a, 22a-23a, 34a-35a).

The new arguments in this Court on legislative history and

statutory interpretation appear to be a reversal of the govern-

ment’s position in VBC v. United States, supra, where the Solici-

(footnote continued on following page)

24

F. 2d at 852; App. 27a).“" A wide variety of approaches

have been suggested (610 F. 2d at 852-4; App. 28a-32a).

Amici Attorneys General respectfully submit that reason-

able standards can be developed, standards that will satisfy

both broadcasters’ limited First Amendment right to free-

dom of speech and listeners’ First Amendment entitle-

ments to diversity em the air and to petition for redress

when such @ versity is denied them, for the “infrequent

situations” (610 F2d at 854; App. 3la) where petitioner

FCC must look at formats.*

(footnote continued from preceding page)

tor General and petitioner FCC argued that the statutory language

and legislative history of the Communications Act authorized the

agency to promulgate regulations affecting programming and that

those regulations were constitutional. The new arguments are,

in any event, on the whole irrelevant. The fact that Congress

refused to give preference to one type of programming over

another, Brief for FCC, Point I.B, for instance, in no way implies

that Congress did not want petitioner FCC to foster diversity of

formats.

**The Court of Appeals did not fail here to provide specific

answers to the objections raised by petitioners as it had in CBS

v. DNC, supra, 412 U.S. at 126. It answered them directly and

thoroughly (610 F. 2d at 848-9, 851-4; App. 18a-20a, 24a-26a, 2%a-

3la). But having shown why the objections were invalid, it was

careful not to fall into the complementary error of providing an

excessively detailed outline of how petitioner FCC should carry

out its responsibilities.

48 (hanging duplicative formats has thus far prompted few if

any listener protests. The FCC could, therefore, reasonably pre-

sume a format was unique if its change elicted significant listener

grumbling.

As a practical matter, determining whether a format is unique

is usually not likely to be difficult. Whether a station is the only

one in a listening area offering a particular entertainment format,

see pp. 3-4 supra, all-news, see pp. 6-7 supra, or programming di-

rected to a particular ethnic or racial minority, see pp. 7-9 supra,

ean often easily be determined by reference to the licensing forms

on file with petitioner FCC, Less elegantly but even more easily, the

self-desecriptions of station formats published in several industry

directories, e.g., Minority/Ethnic Media Guide, supra, could be

consulted, as was done in this Brief.

(footnote continued on following page)

25

As amici for States with considerable interests in the pro-

tection and encouragement of unique radio formats, see

“Interest of Amici Curiae” supra, we are concerned that

our citizens’ voices be heard when they assert their First

Amendment right to petition for redress of grievances as

to the use of the airwaves, a valuable, limited property,

see UCC v. FCC (1), supra, 359 F. 2d at 1003, which, all

concede, belongs to them. Unfortunately, the “deep-seated

aversion’’ displayed by petitioner FCC to considering

format issues (610 F. 2d at 849; App. 2la) precludes

reliance on its taking independent action to protect the

public interest in this area. As in UCC v. FCC (1), supra,

(footnote continued from preceding page)

A slightly more difficult task is posed when two stations in the

same market offer, for instance, all-news or Black-oriented pro-

gramming. A more fine-grained analysis considering, e.g.,

if one news station programmed repetitive modules of news sev-

eral times an hour while the other emphasized in-depth coverage

of a few stories, whether one Black station concentrated on reli-

gious programming and the other on popular music, could easily

be made using the same sources. It seems clear that petitioner

FCC could make such analyses with little or no review of in-

dividual programs. It produced such an analysis in this proceed-

ing (610 F. 2d at 853; App. 30a).

Petitioner FCC's arguments are based on the assumption that

it would have to probe formats down to the level of individual

music selections. Nothing in the decisions of the court below

would require such a result if petitioner FCC conducted an un-

prejudiced Inquiry that developed “a _ rational classification

schema” (610 F. 2d at 853: App. 29a) for a less intrusive deter-

mination of uniqueness. In Citizens Comm. to Save WEFM vy.

FCC, 506 F. 2d 246, 264-5 (D.C. Cir. 1974), for instance, the

court below gave deference to petitioner FCC’s “expertise to

make reasonable categorical determinations” and noted that the

question of uniqueness arose because the licensee described the

format it wished to ahandon as *‘classical music’’ while the substi-

tute station described its format as “fine arts.” Although the

WEFM court noted that one classical music format may be suf-

ficiently different from the other's that the loss of either would

lessen diversity, 506 F. 2d at 264 n. 28, it left open the question

of whether the FCC could find them to be “rough substitutes”

without a hearing on that issue. 7d. at 265.

26

where listener action was needed to induce the FCC to look

critically at the racially biased programming of the li-

censee, so too here petitioner FCC needs “the aid and par-

ticipation of legitimate listener representatives fulfilling

the role of private attorneys general,” 359 F. 2d at 1003,

by providing a ‘‘listener appraisal of a licensee’s perform-

ance,” id. at 1007, and by assisting the agency to evaluate

if the public interest has been served, id. at 1004-5. Amici

submit that the court below correctly held that listeners

are entitled under the First Amendment and the Communi-

cations Act to diversity in radio formats and to petition

for redress when a unique format is threatened.

27

POINT II

To assure that the freedom of the States to explore

other possible regulatory approaches is preserved, the

Court should explicitly note that its decision herein on

Federal regulation of radio need not necessarily apply

to State regulation of cable television systems.

The decision under review herein is singular. It in-

volves suggestions of, in the true sense of the word, extra-

ordinary behavior by the regulatory agency (610 F. 2d

846-7, 850, 856; App. 14a-17a, 22a-23a, 34a-35a).*° More-

over, resolution of the issue involved, corsideration of

format changes in radio licensing decisions, is profoundly

influenced, and perhaps controlled by, the statutory context

of the Communications Act. See Point I supra.

The Court has noted that petitioner FCC has only ‘a

circumscribed range of power to regulate cable television”

under the Communications Act. FCC v. Midwest Video

Corp. (11), 440 U.S. 689, 696 (1979), citing United States

v. Southwestern Cable Co., 392 U.S. 157 (1968); United

States v. Midwest Video Corp. (1), 406 U.S. 649 (1972).

The FCC’s jurisdiction over cable is limited to that “rea-

sonably ancillary to . . . effective . . . regulation of tele-

vision broadeasting.’’ United States v. Southwestern

*° At points, the court below seems to question the right of the

administrative agency to review the court’s decisions (610 F. 2d

at 850; App. 22a), while petitioner FCC questions the Court of

Appeals’ right to review the ageney’s policy decisions. Brief for

FCC, Point II. Amici Attorneys General respectfully submit that

both are over-reacting, perhaps because the long confrontation be-

tween them (610 F. 2d at 850; 21a) has led them to behave

less like working partners than strangers (610 F. 2d at 860; App.

44a) (LEVENTHAL, J., concurirng).

It is not infrequent for one of the State administrative agen-

cies amici Attorneys General represent to receive a lower court

decision which it regards as wrong. As long as the agency ap-

(footnote continued on following page)

28

Video Corp., supra, 392 U.S. at 178. The Court has noted

that the First Amendment rights of cable operators may

differ from those of broad¢ast licensees. United States v.

Midwest Video Corp. (II), supra, 440 U.S. at 707 n. 17.

The individual States continue to franchise cable sys-

tems and, except to the extent that the FCC has preempted

jurisdiction, to regulate them. As illustrated by Amici

herein, see pp. 9-14 supra, the States have adopted a wide

variety of regulatory systems in response to local condi-

(footnote cantinued from preceding page)

proaches the decision with deference to the court’s legal rulings

and with a mind open to be persuaded on the facts, we see noth-

ing wrong in the ageney’s conducting an inquiry to re-evaluate

its policy. Indeed, we would argue that the agency could prop-

erly come to the conclusion that its original policy was correct

and attempt so to convince the court in future litigation.

Administrative agencies must be free to re-examine their poli-

cies in the light of new facts and judicial decisions. This should

include the freedom to readopt a previous policy, as long as the

determination to do so is made fairly, with an open mind on all

the evidence and consistent with the courts’ legal rulings as to

the agency’s powers under its organic statute, Cf. Association of

National Advertisers v. FTC, —— F. 2d , 48 LW 2434 (D.C.

Cir. Dee. 27, 1979).

The difficulty in the present case is that the record showed, in

the view of the Court of Appeals, agency “aversion and “hostil-

ity” toward the Congressional policy embodied in petitioner FCC's

organic statute which, as interpreted by this Court and the Court

below, see pp. 16-21, supra, requires the agency to promote diver-

sity of formats (610 F. 2d at 850; App. 21a) (McGowan, J.) ;

(610 F. 2d at 860; App. 44a-45a) (LevENTHAL, J., concurring).

This error was compounded by “an almost cavalier disregard for

the public’s right to comment” (610 F. 2d at 858; App, 41a)

(Bazevon, J., coneurring in vacating the FCC's decision).

Amici Attorneys General submit, therefore, that if the issues

of agency ‘court relations or of policy/statutory interpretation are

reached, their resolution should be explicitly limited to the facts

herein. The Court can condemn the unusual practices apparently

followed by petitioner FCC without limiting the freedom of other

administrative agencies following fair procedures and adhering

to judicial precedent to re-examine their policies without being

0 mandated to change or foreclosed from adhering to prior

policy.

29

tions. Some treat franchising power separately from reg-

ulatory power. Some place all authority at State level,

others at local level and some place some authority at

both levels. Some States lodge power in a utility commis-

sion, some in an office thereof, others in a separate agency.

Some class cable as a public utility, but others do not, in-

cluding some States that nonetheless use their utility com-

mission to regulate cable. The extent of regulatory power

and the standards under which the local regulators function

are equally varied.”

In analogous areas such as criminal and juvenile justice,

where Federal jurisdiction is indirect and there is no Fed-

eral rule, where the matter is of local concern and is locally

regulated, where the various States have adopted differing

solutions to their problems, this Court has been ‘‘reluctant

to disallow the States to experiment further and to seek

in new and different ways’’ for answers. McKeiver v.

Pennsylvania, 403 U.S. 528, 547 (1971) (juvenile justice).

See also McGinnis v. Royster, 410 U.S. 263, 270 (1973)

(parole). Amici Attorneys General respectfully submit

that unless and until Congress acts to assert jurisdiction

over cable, regulatory policies to encourage diversified

cable programming suited to local needs should be limited

only by the broad parameters of the First Amendment.

If the Court’s decision herein turns on statutory con-

struction of the Communications Act, it would have no

necessary effect on State regulation under different

statutes. Because both the factual question of how limited

cable channels are, see p. 10 supra, and the legal question

of how access to them is regulated, vary from State to

State, see pp. 9-14, 28-9, supra, and nowhere are the same as

°° For State-by-State discussions of the variety of regulatory

systems, see Hochberg, The States Regulate Cable: A Legislative

Analysis of Substantive Provisions, Publication P-78-4 (Harvard

Univ. July 1978), pp. 9-17, 38-48, 59-61, 73-76; Briley, Survey of

Franchising and Other State Law and Regulation on Cable Tele-

vision (FCC 1976), passim.

30

for broadcast media, any Constitutional holdings herein on

Federal regulation of radio might not properly apply to

State regulation of cable television systems.

Unless this Court overturns its prior decisions, see Point

I supra, to find censideration of format in licensing deci-

sions always to be unconstitutional, amici Attorneys Gen-

eral respectfully submit that the Court should leave the

States fee to explore the various possible approaches for

such regulation, see pp. 9-14, 23-4, 28-9 supra, by explicitly

noting that its decision herein does not necessarily apply to

cable.

CONCLUSION

The decision below should be affirmed.

Dated: New York, New York

August 29, 1980

Respectfully submitted,

Rosert ABRAMS

Attorney General of the

State of New York

Amicus Curtae

Surmuey ADELSON SIEGEL

Solicitor General

Rosert J. ScHack

Assistant Attorney General

of Counsel*

* CyriL Penn, Legal Intern

assisted on the brief

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