# Reply Brief — FCC v. WNCN Listeners Guild > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1302%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1981 - **Citation:** 450 U.S. 582 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1302%3A20. Public record. Not legal advice.