Reply Brief — FCC v. WNCN Listeners Guild

TABLE OF CONTENTS

Page

1. RESPONDENTS’ ATTEMPiED EX-

TENSION OF RED LION TO COVER

FORMAT REGULATION COUNTER-

VAILS THE FIRST AMENDMENT'S

FTIR PI ov eieceeencnnnsaseererensncnsees 2

Il. THE FUTILITY OF GOVERNMENT

EVALUATION OF PROGRAM CON-

TENT IS DEMONSTRABLE IN FCC

IIE ccinachasntiicisciaseniaseesnunsanadsinnmns 5

TABLE OF AUTHORITIES

C 4SES

Abrams v. United ~*9t>, 250 U.S. 616 (1919) ...........

Citizens Committee to Preserve the Voice of Arts in

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

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

Vii lame ws Ee |) Seoeenrrerrertn

Columbia Broadcasting System, Inc. v._ Democratic

National Committee, 412 U.S. 94 (1973)... eee

Cosmopolitan Broadcasing Corp., 78 F.C.C.2d 423

DED cesses ctnceab canbevadedanprdnventinrasceccucepnasseseoesnneoneeensess

Cosmopolitan Broadcasting Corp. v FCC, $81 F.2d

SE I TUN iv ces sersnsate acc rendirnassriiannaaksnassenis

Editorializing by Broadcast Licensees, 13 F.C.C. 1246

SNIPE aca arnci'gh iveccumasebedakmrmubbennianktepuamadsdoledaddenevses

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

FCC »y. National Citizens Committee for Broad-

I OO BID TTS CRP IOD vacessisivsascacsnseerecernessensitss

Mame ¥. CHA 207 US. 296 (F959) 0.0.2.0... veces cccecesenees

Kunz v. New York, 340 U.S. 290 (1951) ee

Red Lion Broadcasting Co. v. FCC, 395 US. 367

tt ta. 5 ih eastern vavsvearienntannensonnenmeseisnidneyssss

WPI, Inc., 68 F CC dd 38! (1978), appeal pending

sub nom. Forum Communications, Inc. v. FCC, No

I MN ics ci conscetntiererscoeriaeennoversansess

OTHER AUTHORITIES

Cass. First Amendment Access to Government Facil-

ee WO, BOT COREE D ciskckasnssnancrceesenssssces

Federal Communications Commission. Public Service

Responsibility of Broadcast Licensees (1946 )...........

F Kahn. Documents of American Broadcasting (3d

“UC fateh 2a sae AA sae Raa ae SP eae in re

National Association of Educational Broadcasters.

The Nixon Administration Public Broadcasting Pa-

pers A Summan,, 1969-1974 (1979) co

Spitzer, Radio Formats by Administrative Choice, 47

L Chi L Rev 647 6 1980) =

L Inbe American Constitutional Law ( 197 &)

Page

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Petitioners

vi

WNCN LiIsTENERS GUILD. ef a/.

INSILCO BROADCASTING CORPORATION, ef al.

Petitioners

we

WNCN LISTENERS GUILD. ef al.

AMERICAN BROADCASTING COMPANIES, INC.. ef ai.

Petitioners

vw;

WNCN LISTENERS GUILD. ef a/.

NATIONAL ASSOCIATION OF BROADCASTERS. ef ai.

Petitioners

2

WNCN LisTENERS GUILD, ef a/

On Writ of Certiorari To The

United States Court of Appeals For

The District of Columbia Circuit

REPLY BRIEF FOR INSILCO BROADCASTING

CORPORATION, INSILCO BROADCASTING CORPORATION

OF LOUISIANA, INC., INSILCO RADIO OF OKLAHOMA.

INSILCO BROADCASTING CORPORATION OF

OKLAHOMA. INC., McCLATCHY NEWSPAPERS.

NEWHOUSE BROADCASTING CORPORATION. PALMER

BROADCASTING COMPANY, PLOUGH BROADCASTING

COMPANY. INC.

2

I. RESPONDENTS’ ATTEMPTED EXTENSION OF RED

LION TO COVER FORMAT REGULATION COUN-

TERVAILS THE FIRST AMENDMENT'S MAJOR

PURPOSE

The First Amendment assumes that government ts in-

capable of divining what speech 1s good for the citizenry and

what is not. History shows that government is insufficiently

wise for this task, and that government will abuse to its own

ends any power of content selection. '

Respondents assert that Red Lion Broadcasting Co. v.

FCC. 395 US. 367 (1969), compels regulation of radio formats

because of the public's paramount rights in broadcasting

media.2 Respondents. however, avoid our arguments? that

broadcasting’s unique problem of allocating scarce frequencies

need not. and does not under this Court's decisions. compel an

entirely separate constitutional realm from other media of

expression. A governmental role in selecting broadcast licens-

ees necessitates limiting the reach of traditional First Amend-

ment doctrine only to a small extent

Accommodating the need for a licensing scheme under the

First Amendment has been addressed by this Court recently in

Red Lion. Columbia Broadcasting System, Inc. v. Democratic

National Committee,4 FCC v. National Cinzens Committee for

Broadcasting? and FCC v. Midwest Video Corp.® These cases

explain the central role of licensees’ editorial discretion and the

quite limited power of government to impinge upon content

selection. These decisions are fundamentally incompatible with

‘ Abram; v. United States. 280 US 616. 630-31 C1919)

(Holmes. J. dissenting )

2 Respondents’ Briet at 73 ef seq

I Insilco Brief at 29-41

4442 US 9461973)

$436 US 77S 01978)

644 LS 689 11974)

Respondents’ urging that a federal agency is the proper entity

to mandate basic editorial decisions about radio formats.

Respondents understandably rely on descriptive passages

froin Red Lion in isolation from its subject: the fairness

doctrine and personal attack rules. Yet Mr. Justice White’s

opinion in Red Lion specifically disavowed such expansive

application.” and indicated that approval of the fairness doc-

trine rested in large measure on preserving broadcasters’ dis-

cretion.®

Respondents attack our view that “less drastic means”

analysis should be applied in this case.9 They argue that we

have sought to overturn Red Lion and to analyze broadcasting

by ignoring the “physical realities” of spectrum allocation. 1°

Respondents misconstrue the point.

In our first brief we noted that principled resolution of the

format issue to some extent requires reconciling Red Lion’s

holding with a wider body of First Amendment doctrine. We

did not. however. dispute Red Lion’s finding of scarce fre-

quencies or of the need for their allocation by government."'

Rather. we emphasized that the uniqueness of broad-

casting 1s not just the scarcity of frequencies—all media re-

sources are scarce in ultimate terms-—but that the nature of

electromagnetic channels requires allocation by official author-

ity instead of by economic forces or some other nongovernmen-

tal mechanism. This undisputed fact implicates decisions of this

7395 US at 3%

& Jd

9 Respondents’ Brief at 76-82

Jd at 77 n 1%)

'* Respondents’ assertion that we seek to challenge Red Lion's

rationale is therefore inaccurate. Rather. our aim has been to point

orc that Red Lion did not necessanly change the First Amendment's

traditional aim of limiting governmental control over media of

expression

4

Court, beginning with Hague v. CIO, 307 U.S. 496 (1939), that

limit the methods permitted government in regulating access to

public forums.'2 The controlling principle is that because of the

constant possibility of abuse of discretion,’ “government .. .

cannot draw distinctions between permitted and prohibited

speech on the basis of speech content.””'4

In broadcasting, government abuse of the licensing process

is most likely to take the form of attempts to influence news and

public affairs, especially the coverage of controversial issues of

public importance.'5 An administration, acting through the

Commissioners it appoints, might try to install licensees who

were sympathetic to official suggestions about editorial policy.

or to influence existing stations by threatening to deny renewal.

Under the fairness doctrine, however, these efforts would mean

little. for rough balance in stations’ coverage of controversial

issues must result in any event.

This rationale was not discussed at the time of the fairness

doctrine’s creation.'® It nevertheless provides an independent

12 Insilco Bref at 37. See generalh Cass. First Amendment Access

to Government Facilities. 68 Va. L. Rev. 1287. 1288-95 (1979).

Respondents cannot be taken seriously when they assert ( Respon-

dents’ Brief at 78 n.193) that there is a paucity of scholarly support for

the need to harmonize First Amendment theory in this area. See, e.g..

L. Tribe. American Constitutional Law 699 (1978).

13 See, e.g. Kunz v. New York, 340 US. 290 (1951).

4 Cass, supra n.12, at 1299.

'S See generalh National Association of Educational Broad-

casters. The Nixon Administration Public Broadcasting Papers: A

Summan, 1969-1974 (1979). Certainly. in future. Congress might

tind that risks of abuse in licensing were no longer a sufficient reason

for maintaining the fairness doctrine

6 The fairness doctrine took form in Editorializing by Broadcast

Licensees, 13 F.C.C. 1246 (1949). The Commission’s cursory con-

sututional analysis concentrated on protecting the “paramount inter-

ests of the people” by preserving “the nght of the American people to

listen free from any governmental dictation as to what they can or

cannot hear and free alike from similar restraints by private licensees ~

(footnote continued on following pace

constitutional justification for the fairness doctrine, centering on

the First Amendment’s primary function of limiting govern-

mental power over the marketplace of ideas. It is closely

related as well to Red Lion’s concern that licensees, acting by

virtue of their governmentally-conferred status, might become

the vicarious means of censorship. '7

This constitutional analysis does not, however, justify

government involvement in program areas beyond the scope of

Red Lion, as Respondents have argued. The theory instead

prevents government from converting the need to allocate

spectrum space into the opportunity to promote certain content

and to discourage the broadcast of views it deems contrary to its

own (or the public’s) well-being. This is precisely the danger

anticipated in Red Lion and forestalled in CBS v. DNC.

Il. THE FUTILITY OF GOVERNMENT EVALUATION

OF PROGRAM CONTENT IS DEMONSTRABLE IN

FCC DECISIONS

Respondents and Amici assert that the Commission has.

over the years, successfully decided license contests by assessing

which broadcast applicant would present superior programs. In

(footnote Continued from prior page)

Id. at 1257 (emphasis added). The difficulty with this jusufication ts

its self-contradicuon. Under the Communications Act's licensing

scheme. program selection is reposed in licensees. But if neither

government nor licensees can perform the function. the result 1s

paralysis or chaos. This Court’s decision in CBS v. DNC resolved any

ambiguity about licensees’ rights to exercise the editorial prerogative.

412 US. at 130-31.

7 See 395 US. at 392. We speak here of censorship as a

governmental function. distinguished from the private (non-

governmental) task of ediung See CBS v. DNC. 412 US at 124-25

6

our first bnef we demonstrated that, to the contrary, the

Commission's hearing process is not even remotely suited to

evaluating the relative worth of program proposals. '@

Respondents point to the Commission's Blue Book"? as an

example of successful content regulation.2© In fact, the Blue

Book proposed gross intrusions into licensee decisionmaking

and was therefore consigned to innocuous desuetude shortly

after its adoption.2' It is a monument to the intractable problem

created whenever the Commission attempts to evaluate the

relauve worth of programming.

Amici argue that Commission hearing decisions routinely

incorporate program issues.2? They fail to mention that no such

case has ever been decided solely on programming, and that

the cases which attempt to evaluate programming have been

8 Insilco Brief at 25 1.73

9 Federal Communications Commission. Public Service Respon-

whilin of Broadcast Licensees (1946) (the “Blue Book™)

2° Respondents’ Brief at 69

2° One commentator desenbed the Blue Book's fate as follows

The ‘Blue Book’ became the common name of the document

because of the color of its cover and because of the tendency of

the policy statement’s opponents to associate it with the ‘blue

pencil of censorship and/or ‘blue-blooded® authoritarianism

(since official documents of the Bntish government were also

called ‘blue-books’}

The ‘Blue Book’ was interred a few years later

Neither vigorously enforced nor officially repudiated by the

FCC. the very potency of the ‘Blue Book’ rendered it ineffectual

Its theme of balanced programming as a necessary component of

broadcast service in the public interest coupled with its emphasis

on a feasonable ratio of unsponsored (‘sustaining’) programs

posed too serious a threat to the profitability of commercial radio

for either the industry. Congress. or the FCC to want to match

tegulators promise with performance

F Kahn. Documents of American Broadcasting 132-33 (3d ed 1978)

22 Briet of Amick Amernan Symphony Orchestra, ef a/ at 16-17

7

wholly unsausfactory. For example, WP/X, Inc.,23 cited by

Amici,?4 was a four-to-three decision in which the Commission

was bitterly25 divided on the programming question. The

majority gave the incumbent a major preference for its program

record,26 while the minority awarded “a substantial demerit, a

minus of major significance.”2? WP/X demonstrates only that

Commissioners’ program analyses are highly subjective and,

therefore, basically standardless.28

Amici also offer Cosmopolitan Broadcasting Corp.29 as an

example of how the Commission can resolve programming

issues.20 However, Cosmopolitan was decided on remand from

the Court of Appeals for the District of Columbia Circuit,3'

which ordered3? the Commission to consider programming

issues according to the very precedent— Citizens Committee to

22 P£4 Inc. 68 F.C.C.2d 381 (1978). appeal pending sub nom

Forum Communications, Inc. v. FCC, No. 78-1874 (D.C. Cir).

24 Brief of Amici American Symphony Orchestra. ef al. at 17.

285A member of the majority. Commissioner Quello. wrote a

separate opinion describing the minority opimion as “so sharply

cnitical that it amounts to a diatribe... 68 F.C.C.2d at 487. He

also lamented the minority’s “shrill protests.” id. at 488

2 Jd at 400

27 Jd at 488

26 A number of Commissioners in W PLY reflected on the lack of

adequate standards for comparative renewals See. e.g.. the separate

statement of Chairman Ferris. id. at 485-56. A recent analysis

demonstrates the virtual impossibility of deriving adequate standards

for assessing the public interest value of radio formats Spitzer. Radio

Formats by Administrative Choice, 47 lL. Chi. L. Rev. 647 (1980)

Professor Spitzer concludes that “unless one can convincingly argue

for paternalisuc choice of formats, unfettered licensee choice probably

is preferable to WEF M™ Jd at 68S

2975 FCC 2d 423 (1980)

%® Brief of Amici American Symphony Orchestra. ef a/ at 17

3) Cosmopolitan Broadcasting Corp. v. FCC, $81 F.2d 917 (D.C

Cir 197k)

32 Jd at 931

8

Preserve the Voice of Arts in Atlanta v. FCC 3 and Citizens

Committee to Save WEFM v. FCC34—now at issue before this

Court. Thus Cosmopolitan hardly demonstrates the Commis-

sion’s propensity, independent of compulsion by the court of

appeals, to decide license disputes in the manner suggested by

the format cases.

CONCLUSION

For the foregoing reasons, and for the reasons stated in our

initial brief, the judgment of the court of appeals should be

reversed.

Respectfully submitted.

B. DWIGHT PERRY

RICHARD D. MARKS

Topp D. Gray

Dow, LOHNES & ALBERTSON

1225 Connecticut Avenue, N.W.

Suite 500

Washington, D.C. 20036

(202) 862-8064

Counsel for Insilco Broadcasting

Corporation, et al.

October 23, 1980

33 436 F.2d 263 (DC. Cir. 1970).

3% 506 F.2d 2461 D.C. Cir. 1974) (en banc)

es el ert Lat