Petition — Writers Guild of America, West, Inc. v. American Broadcasting Cos.

Oe

Buprems Court, U.

FILED

APR 29 1980

DAK, JR., CLERK

ee ee

In THE

Supreme Court of the United States

OcTosBer TEerM, 1979

No. ....f.Q..— J re | yd

WriTERS GUILD OF AMERICA, WEST, INC., ef al.,

Petitioners,

v.

AMERICAN BROADCASTING COMPANIES, INC., ef al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD L. OLSON SeTH M. HUFSTEDLER

Monroe E. Price JOHN SOBIESKI

Nancy Y. BEKAVAC DENNIS M. PERLusSs

CHARLES D. SIEGAL EVELYN BALDERMAN HuTT

MUuNGER, TOLLES & BEARDSLEY, HUFSTEDLER &

RICKERSHAUSER KEMBLE

612 South Flower Street 611 West Sixth Street

Fifth Floor Suite 2220

Los California 90017 Los California 90017

(213) 9100 (213) 626-0671

Attorneys for Petitioners

April 28, 1980

PANDICK PRESS WEST COAST, 1945 S$. FIGUEROA, LOS ANGELES, CALIFORNIA (213) 747-432!

TABLE OF CONTENTS

Opinions............ PRR 1h EO AR a AEE ORCL AE OTN

Fe saavnsnesnosiibeelaiabiipas

CPUMDNINNE TMMINIINE 6s. choced iasccpdassserscesneviseronipesabivaceissnentbies

Constitutional Provisions Involved ..................:sscceeeesseeeeeees

ERE RIEL ROA EAN a LES TON IEEET OR

l.

The Ninth Circuit’s Decision Conflicts With Prior

Decisions Of This Court, Misapplies The Primary

Jurisdiction Doctrine, And Effectively Insulates

Extra-Jurisdictional FCC Actions From Judicial Re-

The Ninth Circuit’s Decision Conflicts With This

Court’s Decisions Requiring That Restraints On

Speech Be Given Prompt Judicial Review..................

a. The Ninth Circuit, by referring these cases to the

censoring agency, disregards this Court’s require-

ment that restraints on speech be promptly re-

I ihe habit desis nidgicinsiseeiilintinamiondsss

b. The Ninth Circuit’s decision’ creates intolerable

obstacles to the vindication of First Amendment

PIII Sin icin sapititichoaptpidinhiaantuchstumhiiiceebsinibidacanstha

Whether The FCC Complied With The Procedurai

Dictates Of The APA Is A Question For Courts, Not

For Administrative Agencies, To Decide....................

CFI SHIN ocbinciiniicdnssiviccceabanssulcaoahpiaiasovasocsuecietenmaniais

10

16

17

21

°°»

ii

TABLE OF AUTHORITIES

Cases PAGE

A. E. Staley Mfg. Co. v. United States, 310 F.Supp. 485

Oe a a clalghodecse cecces 25

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)......... 25

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ............ ll

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 ( 1963)............ 18

Bivens v. Six Unknown Named Agents of the Fed. Bureau

of Narcotics, 403 U.S. 388 (1971 ).........ccccccccesessssseeceeeeeees 12

Blount v. Rizzi, 400 U.S. 410 (1971) ...........cececccssssseeeeesseeees 18

Board of Education v. Harris, No. 1079, (2d Cir. Nov. 19,

cog gt RES SIRI EL RRR ARTS ERNE ESS 14

Burton v. Wilmington Parking Authority, 365 U.S. 715

I aati anid acah ens ccnsensesvecevepace 12

Califano v. Sanders, 430 U.S. 99 (1977) .....ccccccscccesseeseeeeecees 12

Center for Auto Safety v. Tiemann, 414 F.Supp. 215

(D.D.C. 1976), remanded on other grounds, 580 F.2d

OE es aa ea. cncctasescsohuebeovensces 25

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

Ae ieee staal Ua cael dain sdoeninnssdpdesesescconclasevenccee 25

Community Nutrition Inst. v. Butz, 420 F.Supp. 751

Senn TN lace hac al Sadana dlicidnccsenotacionccacees 25

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).............. 19

Freedman v. Maryland, 380 U.S. 51 (1965) ............. 11, 18, 20

Gemini Enterprises, Inc. v. WFMY Television Corp., 470

PR, ee 0 Le aE BPP Bacsidtisrccccrocessseressccccccsscscceses ll

Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir.) (per

curiam), cert. denied, 434 U.S. 829 (1977) ......ccccccceessees 20

Humana of South Carolina, Inc. v. Califano, 590 F.2d

a WUE ee aieetcdecitiedcanciesevcsancadsaccdisesescccscese 25

Illinois Citizens Comm. for Broadcasting v. FCC, 515 F.2d

es re rk ccscenetdabecceconceens 22

Independent Broker-Dealers’ Trade Ass’n v. S.E.C., 442

F.2d 132 (D.C. Cir.), cert. denied, 404 U.S. 828 (1971)

iii

CASES PAGE

Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir.

1978), aff'd on other grounds, 440 U.S. 689 (1979)......... 20

Moss v. CAB, 430 F.2d 891 (D.C. Cir. 1970) wo. eeeees 24

Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976)

ies tine craiephaekas dhnebdbiieoMipaiacidain icadebeasneiaetlanscccteases 1}, 12,24

National Citizens Comm. for Broadcasting v. FCC, 555

F.2d 938 (D.C. Cir. 1977), rev’d on other grounds, 436

Se FE Nr Di icinicckedeiebbiduibcalisutnsepcaibtvicnthualaeennenialies 13

Natural Resources Defense Council, Inc. v. Train, 510

FAS Ie EP Mas GIG NED Pcdittiaceieessnindncaadihanenebisbinvaiearseese 14

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).......... 18

Pan American World Airways, Inc. v. United States, 371

CED. Zeek ROMP Bakes Vir coneaenbiceosecabel naman tadaapocdscdh dtiscveekssonees 11

Porter v. Califano, 592 F.2d 770 (Sth Cir. 1979)... 13

Ricci v. Chicago Mercantile Exchange, 409 U.S. 289

ft RIP R NE ieksiendanhceeeisteivoaisdenchaba abiibebsognapdaveusesiiesphtaseiiabecuers ll

Rosado v. Wyman, 397 U.S. 397 (1970) ...cccceccscsecessseeeeseeees 14

Shew v. Southland Corp., 370 F.2d 376 (Sth Cir. 1966)...... 14

Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546

EU FEE sand dh oth as snnigdbisebdidbnonanigh sandedbeaebantatesouiaenineen 18, 19, 20, 21

United States v. Philadelphia Nat’l Bank, 374 U.S. 321

SER aniipisicisvansavphacchtbasbaswncisindsinipedidpacbibbeasiaseclaediamanabsetnes 14

United States v. Radio Corp. of America, 358 U.S. 334

© DUE init sca vininsunicassdslciapnnctibeitenancsmbhanbientiaabseesnisaaans 11, 13

United States v. Western Pacific R.R. Co.,'352 US.

SHAD BIG) stichscnriniesaliteeh bamibcstedoiaberathgckacagtbtbtesstuneuisinnn 11,14

Vance v. Universal Amusement Co., Inc., 48 U.S.L.W.

4273; (Sup. Cox Marche 86, 1900 ) scisccckssiicsccrcrcscnssessosdcsanse 18

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 US.

4 GREER TUR aes enihisivsss epbobssecaheolitclidansnmid abuse aia tnbonssbadibietbaabens 25

Writers Guild of America, West, Inc. v. FCC, 423 F.Supp.

POT CA ED, SA DFP ches abcinecccssStbshcosiaaconsthassendbbataranaty passim

Writers Guild of America, West, Inc. v. American Broad-

casting Co., Inc., 609 F.2d 355 (9th Cir. 1979) .......... passim

Ybarra v. Illinois, 48 U.S.L.W. 4023 (Sup. Ct. Nov. 28,

SOP Piccaiksssakaeabbisiadkacseccsosevecbionlntashinbeabeyesialighainsiniecdiedes ll

**

*’

iv

CONSTITUTION PAGE

INTs REINS 5.2... osnk udeuiilernisligen dams Ciewavocasibcuaaobeesis passim

a | RESETS. pas Pe mie a UE SES aN 9,11

STATUTES 2

Communications Act of 1934:

Sect 526, 47 U.S... 9 S26 vccrccccescccccesccessseeee 4,11, 13

Administrative Procedure Act:

SEE SSE Oe es aS passim

Oe Wrath GED secthncenscicaindovassccoscveqies 3, 24, 25

F Maar PU PUA Dickie cevadedecbacecbincschacksasevaaaning 24, 25

SEF Ae Me STR D vec citantinketivhechedéobescipetecgehiigppacdnqntccne’ 25

SOEs TCA Ny BS ee GPS chececetovecccnschaiccanctons 3, 24

Dy eee ENTE WE acaliasdscsaniscssncretunmccerdenccess toiktapuolinncelalestes 26

ee IE ED vssisstiapncsdcvonshueussinsnsadertiiehivccdescomljantiCentic 2

I ee alseipeamacninedtte 7

RULES

Federal Rule of Civil Procedure 54( b) .............cccccecceeeeees 7

OF Ca ae OC EI GD vivassvcdlnniiensccocccndsecsonsnaivsesonsss 21

OTHER AUTHORITIES

Monaghan, First Amendment “Due Process,” 83

SEITE EES DEIR IOEED ccccbicsccb euch cconboetystinustiuoonedes seus 18

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

Pe ccadiisowtins

WRITERS GUILD OF AMERICA, WEST, INC., ef al.,

Petitioners,

Vv. %

AMERICAN BROADCASTING COMPANIES, INC., ef al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners’ respectfully pray that this Court grant

this Petition for a writ of certiorari to review the

' Petitioners were plaintiffs below. They are: Writers Guild of

America, West, Inc., Writers Guild of America, East, Inc., Directors

Guild of America, Inc., Screen Actors Guild, Inc., Concept Plus II

Productions, Four D Productions, Danny Arnold, Allan Burns,

Samuel Denoff, Larry Gelbart, Susan Harris, Norman Lear, Wil-

liam Persky, Paul Witt, and Edwin Weinberger (“Writers Guild

Plaintiffs”) and Tandem Productions, Inc. (“Tandem”). Re-

spondents were defendants below. The Private Defendants are:

National Association of Broadcasters (“NAB”), American Broad-

casting Companies, Inc. (“ABC”), CBS Inc. (“CBS”), and Na-

tional Broadcasting Company, Inc. (“NBC”). The Government

Defendants are the Federal Communications Commission

(“FCC”), its former Chairman Richard J. Wiley, Commissioners

Abbott Washburn, Robert E. Lee, and James H. Quello, and

former Commissioners Benjamin C. Hookes, Charlotte T. Reid and

Glen O. Robinson.

77

2

judgment and opinion of the United States Court of

Appeals for the Ninth Circuit entered in this proceeding

on November 14, 1979.2

Opinions

The opinion of the United States Court of Appeals

for the Ninth Circuit, reported at 609 F.2d 355 (1979),

appears in the Appendix at A-4. The opinion of the

United States District Court for the Central District of

California, reported at 423 F.Supp. 1064 (1976), ap-

pears in the Appendix at A-40.

Jurisdiction

Petitioners invoke this Court’s jurisdiction under 28

U.S.C. § 1254(1). The judgment and opinion of the

United States Court of Appeals for the Ninth Circuit

was entered on November 14, 1979. On January 30,

1980, the United States Court of Appeals for the Ninth

Circuit denied Petitioners’ motion for rehearing and

suggestion of appropriateness of rehearing in banc. The

within Petition is filed within 90 days of that denial.

Questions Presented

1. Does the primary jurisdiction doctrine require

the district court to refer to the FCC claims that the

FCC acted beyond constitutional, jurisdictional, and

procedural bounds, when the central issues are within

the conventional competence of courts, do not threaten

to interfere with a regulatory scheme, and when the

agency’s views on those issues are known?

2 The judgments for which review is sought were entered in

cases Nos. 77-1058, 77-1059, 77-1060, 77-1061, 77-1103, 77-1602,

77-1756, 77-1897, and 77-2357. The full captions for those cases

appear in the Appendix at A-4-5.

3 Hereinafter citations to the opinion below will be given as

“609 F.2d at ...., A-....;” citations to the district court’s opinion will

be given as “423 F.Supp. at ...., A-.....”

3

2. Does the primary jurisdiction doctrine require

the district court to refer to the FCC claims that the

FCC imposed a prior restraint on broadcast speech,

when that reference will delay and impede judicial

review of the alleged restraint?

3. Does the primary jurisdiction doctrine require

the district court to refer to the FCC claims that the

FCC violated the Administrative Procedure Act

(“APA”) by engaging in policymaking without giving

proper notice and opportunity for comment?

Constitutional Provisions Involved

_ The First Amendment to the United States Con-

stitution provides in pertinent part that, ““Congress shall

make no law. . . abridging the freedom of speech, or

of the press... ."

Statutes Involved

Section 4 of the APA, 5 U.S.C. § 553, which is set

out in full in the Appendix at A-1, provides for proce-

dures to be used in agency rulemaking.

Section 10(a) of the APA, 5 U.S.C. § 702, which is

set out in full in the Appendix at A-3, provides in

pertinent part that, “A person suffering legal wrong

because of agency action . . . is entitled to judicial

review thereof.”

Statement of the Case

These cases were brought by four guilds of creative

artists, three production companies, and nine writers,

producers, and directors of television programs to con-

test the legality of the “Family Viewing Policy.” That

policy was adopted by the National Association of

Broadcasters (“NAB”) in April 1975 following in-

tensive pressure by the FCC. The policy provided that

4

“Entertainment programming inappropriate for viewing

by a general family audience” should not be shown

during the first hour of “prime time” and during the

immediately preceding hour. The NAB’s Television

Code Review Board, with the active assistance of the

television networks, enforced the policy. The FCC

monitored the enforcement.

Petitioners brought two actions in the district court.

The principal focus of both actions was on the role of

the FCC. Petitioners contended that the FCC had

coerced the networks, and had conspired with them and

the NAB, to adopt the Family Viewing Policy. The first

action, brought by the Writer’s Guild Plaintiffs, alleged —

that: (1) the FCC, the NAB and the networks had

violated the First Amendment by imposing an illegally

vague restraint on broadcast speech; (2) the FCC had

violated the APA, 5 U.S.C. §§ 551-59, 701-06, by

engaging in rulemaking without proper notice and

comment; (3) the FCC had violated Section 326 of the

Communications Act of 1934, 47 U.S.C. § 326; and (4)

the networks had violated the Sherman Act. The

Writer’s Guild Plaintiffs sought declaratory and in-

junctive relief. The second action, brought by Tandem,

alleged the same violations, except that it did not allege

an APA claim; Tandem also sought damages, for

censorship of its program “All In The Family,” in

addition to declaratory and injunctive relief.

The Complaints were filed in November 1975. The

district court set an expedited discovery schedule and an

early date for the court trial of the First Amendment

issues.4 After a lengthy trial in April and May 1976,

the district court found that Richard E. Wiley, then

Chairman of the FCC, acting on behalf of the FCC, had

4The issues were bifurcated for trial; trial on the antitrust

issues was stayed.

5

“launched a campaign primarily designed to alter the

content of entertainment programming in the early

evening hours.” 423 F.Supp. at 1094, A-90. Chairman

Wiley’s actions were found to be

“the direct cause of the implementation of the

family viewing policy: were it not for the pressure

he exerted, it would not have been adopted by any

of the networks nor by the NAB. The threat of

[FCC] regulatory action was not only a substantial

factor leading to [the Family Viewing Policy’s]

adoption but a crucial, necessary, and indispensable

cause.” 423 F.Supp. at 1094, A-90.

The district court also found that the FCC had

conspired with the Private Defendants to censor non-

network television licensees:

“'T]he Commission itself has participated in an

unprecedented joint venture, a transaction in which

it has. joined with the most powerful forces in

broadcasting to permit a national board to dictate

what may be heard, to implement a policy devel-

oped and conceived by government.” 423 F.Supp.

at 1145, A-204.

The district court made extensive factual findings in

support of those conclusions. Those findings were not

disputed by the Court of Appeals.5

The FCC’s pressure on the networks and the NAB

found expression not only in the promulgation of the

Family Viewing Policy, but also in the policy’s enforce-

ment. The district court found that, subsequent to April

1975, the NAB Television Code Review Board func-

tioned as an enforcement mechanism for the Family

Viewing Policy. 423 F.Supp. at 1123, A-157. The

5 The Court of Appeals appended summaries of the factual

findings and holdings of the district court to its opinion. 609 F.2d

at 366-72, A-26-39.

7%

6

district court found that the effect of this enforcement

mechanism was “significant self-censorship” by tele-

vision producers and the transformation of network

editors from independent decisionmakers into “conduits

of FCC and NAB policy.” 423 F.Supp. at 1126, A-163.

The FCC had not hesitated to take credit for its

role in promulgating the Family Viewing Policy. On

February 19, 1975, the FCC submitted its Report on the

Broadcast of Violent, Indecent, and Obscene Material 6

to Congress, which stated:

“Recent events make it appear that our initiative

has been successful and that the broadcast industry

intends to regulate itself in order to obviate the need

or demand for governmental action in this area.

(Emphasis added in part). 423 F.Supp. at 1117-

18. A-142-44.

When these suits were filed, however, the FCC

took the position that the NAB adopted the Family

Viewing Policy without FCC participation. Throughout

the trial, the FCC denied that Chairman Wiley and the

FCC staff had pressured the Private Defendants into

adopting the Family Viewing Policy. 423 F.Supp. at

1092, A-86. Chairman Wiley testified that he had only

acted personally, not on behalf of the FCC. 423

F.Supp. at 1092, A-87. The district court found a

serious question as to the FCC’s credibility on this issue.

423 F.Supp. at 1122, A-154. It found that:

“Acting through Chairman Wiley, [the FCC] de-

clared that broadcasters had to reduce substantially

the broadcasting of violence and adult material in

the early evening hours. If such action were not

forthcoming, regulatory actions up to and including

the relicensing process were threatened. Under-

standably concerned about the existence of its

651 F.C.C.2d 418 (1975).

7

power to do anything, the Commission resorted to

informal coercion. Believing that it could not

develop a record sufficient to support regulatory

action, [the FCC] threatened such action anyway.

This lawless conduct cannot be tolerated if broad-

casters are to enjoy meaningful First Amendment

freedoms.” 423 F.Supp. at 1149, A-213.

The district court held that the Family Viewing

Policy as adopted violated both the First Amendment

as an illegally vague restraint on speech and the APA as

a circumvention of required procedures.? The FCC

was found liable with respect to its direct acts and the

Private Defendants’ acts which it had caused and

conspired to accomplish. 423 F.Supp. at 1151, A-217.

The Private Defendants were found liable under two

distinct theories of government action: voluntarily

abandoning their independence in the face of FCC

pressure, 423 F.Supp at 1140-43, A-194-200, and con-

spiring with the government to restrain non-network

licensees. 423 F.Supp. at 1143-46, A-200-07. The

district court granted the Writers Guild Plaintiffs and

Tandem declaratory relief against the FCC and the

Private Defendants and held that Tandem could recov-

er damages.®

All parties except Tandem appealed from the

district court’s judgment. NBC did not appeal from,

and expressly agreed with, the district court’s First

Amendment holdings; it only appealed the issue of

? The district court held that it lacked jurisdiction over the

Communications Act claim. 423 F. Supp. at 1084, A-68-69.

8 The district court certified its decision in the Writers Guild

case as a final order pursuant to Federal Rule of Civil Procedure

54(b) and certified its judgment as to liability in the Tandem case

as an interlocutory order pursuant to 28 U.S.C. § 1292(b).

®The Writers Guild Plaintiffs appealed from the district

court’s holding that it lacked discretion to award them attorneys’

fees.

8

damage liability. NBC Reply Brief at 2, Writers Guild

of America, West, Inc. v. ABC, supra. ABC, CBS and

the NAB, in a joint brief, argued, inter alia, that the

district court should have referred the entire action to

the FCC under the primary jurisdiction doctrine.

The district court had previously rejected the pri-

mary jurisdiction argument on three distinct grounds:

(1) the legal and factual issues involved in challen-

ging the private, secretive conduct of the FCC, the NAB

and networks were “all topics peculiarly unsuited to

impartial FCC scrutiny. . . ,” 423 F.Supp. at 1090, A-

82;

(2) the legal questions, and in particular the key

issue of “state action,” as well as the question of

remedies, involved no special FCC expertise, 423

F.Supp. at 1090, A-82; and

(3) the FCC’s position on the issues was already

known and had been presented by the FCC during the

trial. 423 F.Supp. at 1090-91, A-82-83.

The Ninth Circuit rejected the district court’s rea-

soning and ruled tnat the doctrine of primary jurisdic-

tion compelled the district court to refer the matter to

the FCC for review. It vacated the judgment of the

district court with instructions to hold in abeyance the

claims against the Private Defendants “pending resolu-

tion and judicial review of the administrative proceed-

ings before the FCC.” 609 F.2d at 358, A-9.

In response to the district court’s conclusions

regarding primary jurisdiction, the Ninth Circuit:

(1) Held that the FCC’s position on the legality of

the Family Viewing Policy was clear only in the context

of the instant lawsuit, 609 F.2d at 364, A-20;

9

(2) Rejected the district court’s finding that the

FCC possessed “‘no special expertise in formulating ‘a

theory of governmental action under the First Amend-

ment or [fashioning] appropriate remedies,’” 609

F.2d at 363, A-20; and

(3) Held that it was not known “what the position

of the FCC would have been, or in the future will be,

when confronted by the plaintiffs’ claims in a proper

administrative proceeding,” 609 F.2d at 364, A-20, and

rejected the district court’s finding that the FCC’s views

could be presented in this case as well as they could be

in a formal administrative proceeding. 609 F.2d at 363,

A-20.

REASONS FOR GRANTING THE WRIT

Summary of Argument

The decision below permits a powerful federal

regulatory agency to turn entities under its control into

pawns to make and enforce its policies, to deny that it

has acted, and then to review its own alleged misdeeds

and policies on the terms and timetable it chooses. The

Ninth Circuit allowed that result by defining and

manipulating the primary jurisdiction doctrine in con-

flict with this Court’s prior holdings. The Ninth Cir-

cuit’s novel and aberrant use of primary jurisdiction

raises important issues of proper court-agency relations;

it is inconsistent with the careful efforts of this Court to

delineate the allocation of decisional responsibility be-

tween courts and agencies. Furthermore, the Ninth

Circuit, in these cases, employs the primary jurisdiction

doctrine in actions challenging pervasive censorship and

studied evasion of the APA, notwithstanding the hail-

mark cases of this Court stressing that First Amendment

and APA claims are entitled to prompt judicial review.

i |

10

The reference of these cases to the FCC directly

conflicts with this Court’s holdings which establish that

courts may refer actions to agencies to gain agency

expertise on factual issues and to avoid inconsistent

results in a regulated industry. Primary jurisdiction has

no role to play when the agency, which would be the

judge, is itself on trial for illegal and unconstitutional

action. Nor is the primary jurisdiction doctrine appli-

cable when the defendant agency denies having any

policy pertaining to the relevent issues, so that the

claims presented do not interfere with regulatory policy.

Second, the decision below conflicts with a long

line of cases in which this Court has held that alleged

First Amendment violations require prompt judicial, not

administrative, scrutiny. The holding of the Ninth

Circuit not only delays that constitutional review, but

also remits Petitioners to the very agency that erected

the restraint.

Third, this Court, as well as circuit courts, has

consistently held that alleged APA violations are subject

to immediate judicial review. The Ninth Circuit has

held to the contrary that claims of APA violations

should be referred by the district court to the agency.

In short, this Court should grant this Petition

because the Ninth Circuit has applied the primary

jurisdiction doctrine in an inappropriate manner with

disastrous results for both constitutional and adminis-

trative law.

1. The Ninth Circuit’s Decision Conflicts With Prior

Decisions Of The Court, Misapplies The Primary

Jurisdiction Doctrine, And Effectively Insulates

Extra-Jurisdictional FCC Actions From Judicial

Review.

Until the Ninth Circuit’s decision, neither this

Court, nor any other federal court, had applied the

primary jurisdiction doctrine to require an agency to

11

revisit its own actions and to determine the legality of its

own prior activities. It would be unthinkable to ask a

law enforcement agency or an administrative agency to

review its compliance with the Fourth Amendment. See

Ybarra v. Illinois, 48 U.S.L.W. 4023 (Sup. Ct. Nov. 28,

1979); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).

Likewise, in the First Amendment area, where a state

bar association disciplined its members for advertising,

in violation of its rules, those members could go into

court for a declaration of unconstitutionality, even

though the bar association had not decided whether the

rule violated the First Amendment. See Bates v. State

Bar of Arizona, 433 U.S. 350, 356 (1977). Nor do

courts ask censors to decide whether their actions

violate the First Amendment. See Freedman v. Man-

land, 380 U.S. 51 (1965).10

Had this case been brought against the networks

alone, invocation of the doctrine might have been

proper. But this is not such a case. Here, Petitioners

alleged that the agency itself had committed con-

stitutional and statutory violations.

10 This Court has used the primary jurisdiction doctrine where

a party other than the agency was charged with wrongdoing. In

such cases, the agency could evaluate the propriety of that party’s

conduct in light of its regulatory scheme. See, e.g., Ricci v. Chicago

Mercantile Exchange, 409 U.S. 289, 290-91 (1973) (allegations

that mercantile exchange violated antitrust and commodities ex-

change laws referred to Commodity Exchange Commission); Pan

American World Airways, Inc. v. United States, 371 U.S. 296

(1963) (charges that airline and shipping companies violated the

Sherman Act referred to Civil Aeronautics Board).

Where the agency itself is the alleged wrongdoer, referral

plainly is improper. In Gemini Enterprises, Inc. v. WFMY Tele-

vision Corp., 470 F.Supp. 559 (M.D.N.C. 1979), a district court

recently so recognized. The plaintiffs claimed that the FCC had

engaged in “a covert. . . policy to keep astrological programming

and advertising off the air.” Jd. at 571. The court held that it

would be inappropriate “to invoke the doctrine of primary jurisdic-

tion to commit consideration of this case to an agency which was

allegedly the instigator of the challenged conspiracy.” Jd.

12

The primary jurisdiction doctrine allocates fact

finding between courts and agencies. This Court has

tailored primary jurisdiction carefully to meet specific

circumstances not present in this case. That doctrine is

available only when a court and an administrative

agency both have jurisdiction over an action, and when

reference of the action to the agency may yield the

agency’s views on factual issues which are within the

agency’s field of expertise. Nader v. Allegheny Airlines,

Inc., 426 U.S. 290, 304 (1976); United States v. Radio

Corp. of America, 358 U.S. 334, 346-52 (1959). In

addition, the doctrine has as its historic underpinning

the prevention of inconsistencies between the decisions

of courts and those of agencies in areas where regu-

latory uniformity is critical. United States v. Western

Pacific R.R. Co., 352 U.S. 59, 63-64 (1956).

This Court’s decisions have clearly delineated the

boundaries of the primary jurisdiction doctrine. First,

where “[t]he standards to be applied . . . are within

the conventional competence of the courts, and the

judgment of a technically expert body is not likely to be

helpful in the application of these standards to the

facts” of a case, initial reference to the agency is not

appropriate. Nader v. Allegheny Airlines, Inc., supra,

426 U.S. at 305-06. The principal issues before the

district court—the state action doctrine, First Amend-

.ment and APA violations, and damage issues—are just

those kinds of questions. Courts, not regulatory

agencies, have historically addressed them."'

"| E.g., Burton v. Wilmington Parking Authority, 365 U.S. 751

(1961) (state action); cases cited infra at 18, 25-26 ( First Amend-

ment and APA); Bivens v. Six Unkrown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) (damages). See also

Califano v. Sanders, 430 U.S. 99, 109 (1977) (constitutional issues

must be decided by courts; dictum).

13

Second, this Court has permitted actions to proceed

in trial courts, as opposed to regulatory agencies, when

judicial resolution of the material issues presented no

problem of interference with a regulatory scheme.

United States v. Radio Corp. of America, supra. There

is no such problem in these cases. The FCC has no

Statutory warrant to regulate “programming in-

appropriate for viewing by a general family au-

dience.”'2 To the contrary, Section 326 of the Commu-

nications Act, 47 U.S.C. § 326, specifically forbids the

regulation of program content.'3 Indeed, throughout

this litigation Chairman Wiley maintained that the FCC

had not acted and could not have acted to promulgate

or enforce the Family Viewing Policy, and that the

Family Viewing Policy is simply an agreement among

private entities. In such a case, there is no regulatory

scheme to protect.

Finally, the Court has not referred plaintiffs to an

agency when reference would be pointless.14 The

'2 The FCC has never claimed that the proscribed speech was

obscene or indecent.

13 Section 326 provides that:

“Nothing in this chapter shall be understood or construed to

give the Commission the power of censorship over the radio

communications or signals transmitted by any radio station, and no

regulation or condition shall be promulgated or fixed by the

Commission which shall interfere with the right of free speech by

means of radio communication.”

‘4 Reference is also pointless, and uneconomical, for the

judicial system in First Amendment cases. Because the standards

for review of administrative determinations of First Amendment

questions are so high, no economies would result from initial

referral to the FCC. A reviewing court must subject the FCC’s

rulings that touch upon First Amendment concerns to a “searching

review.” National Citizens Comm. for Broadcasting v. FCC, 555

F.2d 938, 948 & n.22 (D.C. Cir. 1977), rev'd on other grounds, 436

U.S. 775 (1978); accord, Porter v. Califano, 592 F.2d 770, 780 n.15

(Sth Cir. 1979) (“[i]ndependent judicial judgment is especially

appropriate in the First Amendment area”). Thus. initial referral

to the agency would result in a needless drain on scarce dispute-

resolution resources.

14

Court has recognized the futility of invoking the pri-

mary jurisdiction doctrine when the agency’s action was

completed at the time the case was filed, United States

v. Philadelphia Nat’l Bank, 374 U.S. 321, 353 (1963);

where the agency has already addressed the issue,15

United States v. Western Pacific R.R. Co., supra, 352

U.S. at 69; or where the agency had declined to

participate. Rosado v. Wyman, 397 U.S. 397, 406-07

(1970).

By the time suit was filed in this case, the FCC had

completed its formal action on the Family Viewing

Policy: its February 1975 Report to Congress specific-

ally applauded the Family Viewing Policy as private,

“self-regulation”. 423 F.Supp. at 1117, A-142. Thus,

the FCC had already addressed the central issue of

whether its own conduct had caused the Family View-

ing Policy and had thereby tainted the Family Viewing

Policy with government action. Reference to the FCC

would have been a futile act, delaying judicial review.

As the district court stated:

“Essentially the [FCC’s] argument boils down to

this: The plaintiffs, who allege that the Commission

and its staff sought through extra-legal channels to

impose an unconstitutional scheme of censorship in

direct defiance of established procedures, statutory

commands, and constitutional limitations, must con-

tinue to suffer irreparable injury while going

through the ritualistic exercise of asking the Com-

mission to admit guilt which it strenuously denies.

'S See Board of Education v. Harris, No. 1079, slip op’n at

5415 (2d Cir. Nov. 19, 1979) (“where resort to the agency would

plainly be unavailing in light of its manifest opposition or because

it had already evinced its ‘special competence’ in a manner hostile

to petitioner, courts need not bow to the primary jurisdiction of the

administrative body.”); Natural Resources Defense Council, Inc., v.

Train, 510 F.2d 692, 703 (D.C. Cir. 1975); Shew v. Southland

Corp., 370 F.2d 376, 379-80 (Sth Cir. 1966).

15

“Tronically, the Commission’s papers on file

with this court (the very papers which argue for

exhaustion of remedies) demonstrate that it has

predetermined the issues adversely to the plaintiffs.

It forcefully argues in its papers that there has been

no agency action of any kind and no violation of

section 326 or of the First Amendment by the

Commission or any of its members.” 423 F.Supp.

at 1081, A-61.

The Ninth Circuit’s misunderstanding of the doct-

rine is apparent in the questions it referred to the FCC.

The Ninth Circuit stated that “the primary jurisdiction

doctrine provides a needed opportunity to obtain an

explicit and well articulated determination by the FCC

of whether its actions under Chairman Wiley properly

walked the [regulatory] ‘tightrope.’” 609 F.2d at 363,

A-19. However, that very general inquiry overlooks the

fact that Chairman Wiley had already “walked the

tightrope.” Petitioners sought relief from ongoing

censorship, not a rule for future FCC behavior. Addi-

tionally, the Ninth Circuit stated that the FCC “could

prcvide enormous assistance to the judiciary” on the

issue of “whether a family viewing hour imposed by the

FCC would contravene the First Amendment.” 609

F.2d at 364, A-21. However, that issue did not have to

be decided. All defendants—the FCC, the networks

and the NAB—agreed that the FCC could not have

imposed a restraint on sexually oriented or violent

programs. Indeed, the district court explicitly avoided

deciding that issue. 423 F.Supp. at 1149, A-213-14.

The primary jurisdiction doctrine can play a role in

proper court-agency relations only if its limitations are

recognized. If it is used imprecisely, as it was here, it

simply delays required judicial review. Here, its use

would result in sending a policy to the FCC for review

16

of indefinite scope and duration, while the policy in

question remains in force, insulated from judicial over-

sight.

2. The Ninth Circuit’s Decision Conflicts With This

Court’s Decisions Requiring That Restraints On

Speech Be Given Prompt Judicial Review.

The decision of the Ninth Circuit to delay judicial

review is particularly egregious in light of the First

Amendment restraint on speech claimed and found to

exist in these cases. Government censorship, in the

form of the Family Viewing Policy, restrained the

creation and airing of a wide variety of material to be

broadcast into every home in the United States every

night. 423 F.Supp. at 1126, A-164:

“Significant self-censorship was evident. Charac-

ters were not developed, themes were not explored,

language was deleted—all in response to network

adherence to family viewing principles. ... It

transformed network editors from independent

decisionmakers into conduits of FCC and NAB

policy. Instead of deciding what should and should

not be broadcast, they decided what material would

evoke criticism from other networks and NAB

functionaries. In fact, at one early and hysterical

point one CBS executive told producers that they

should limit the material in their shows to that

which would avoid embarrassing the most ‘uptight

parent that could be imagined.’” 423 F.Supp. at

1126, A-163.

In addition, shows were typed as inappropriate for

family viewing and rescheduled outside the first hour of

prime time and the immediately preceding hour. The

district court found that “‘All In The Family’ was

rescheduled out of the family viewing time period

>»

17

because of the family viewing policy.” 423 F.Supp. at

1127, A-165. The court described the pressures which

led to moving that show:

“(CBS president Arthur] Taylor was so opposed to

moving the show that he suggested that instead of

moving the show, ‘Our response will have to lie in

the area of content change... .’ Ultimately

{ Norman] Lear was contacted to see if he would

agree to such changes in the show. Predictably

Lear was not prepared to cooperate with such

measures to mollify CBS’s concerns about objec-

tions from competitors. CBS was therefore forced

to move the show in order to comply with its pledge

to adhere to NAB perceptions of the meaning of the

family viewing policy.” 423 F.Supp. at 1127

A-165.

By referring Petitioners to the FCC, the Ninth

Circuit failed to heed this Court’s firm directive that a

restraint On speech must be promptly reviewed by a

court. It thereby transformed the primary jurisdiction

doctrine from a flexible decision-making aid into a

stumbling block to the assertion of First Amendment

freedoms. The implications of the Ninth Circuit’s

holding for those who would challenge a prior restraint

on speech thus extend far beyond the confines of this

case.

a. The Ninth Circuit, by referring these cases to

the censoring agency, disregards this Court’s

requirement that restraints on speech be

promptly reviewed by courts.

This Court repeatedly had heid that a challenge to

a prior administrative restraint on speech must be heard

by a court, not the censoring agency, and that that

hearing must come promptly, not after protracted ad-

ministrative proceedings.

18

Those requirements are essential safeguards

against the “perils of prior restraint” because an admin-

istrative body “may well be less responsive than a court,

an independent branch of government, to con-

stitutionally protected interests in free expression.”

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,

561 (1975). See, e.g., Vance v. Universal Amusement

Co., Inc., 48 U.S.L.W. 4273, 4275 (Sup. Ct. March 18,

1980) (per curiam) (“prior restraints of indefinite

duration on the exhibition of motion pictures that have

not been finally adjudicated to be obscene” are in-

valid); Blount v. Rizzi, 400 U.S. 410, 421 (1971) (“The

appellees here not only were not afforded ‘prompt

judicial review’ but they ‘can only get full judicial

review on the question of obscenity . . . after lengthy

administrative proceedings, and then only by [their]

Own initiative.’”’); Freedman v. Maryland, supra, 380

U.S. at 55 (“there is no statutory provision for judicial

Participation in the procedure which bars a film, nor

even assurance of prompt judicial review. Risk of delay

is built into the. . . procedure”); Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963) (“We have tolerated

[a prior restraint] system only where it operated under

judicial superintendence and assured an almost imme-

diate judicial determination of the validity of the re-

straint.” ); Monaghan, First Amendment “Due Process,”

83 Harv.L.Rev. 518, 520 (1970) (‘Central to first

amendment due process is the notion that a judicial,

rather than an administrative, determination of the

character of the speech is necessary” ).16

‘6 This Court has articulated both substantive and procedural

requirements which must be satisfied by a constitutional system of

prior restraint. Substantively, a prior restraint has been deemed

permissible only when obscenity, speech inciting violence or over-

throw of the government, and possibly military security are in-

volved. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 590-92

(1976). There is no charge of such disfavored content here.

Procedurally, such systems can be acceptable only if the burdens of

(Footnote continued on next page)

19

The Family Viewing Policy, however, did not

provide for judicial review, prompt or otherwise. The

district court found that the Family Viewing Policy was

instituted and operated in a procedural star chamber,

where Petitioners could not even appear. 423 F.Supp.

at 1072, 1149, A-41, 213. In place of a formal inquiry

and rulemaking procedure, designed to secure public

participation in the decision-making process, the FCC

formulated and instituted its new policy of censorship

by means of closed-door influence, pressure, and

threats. 423 F.Supp. at 1149, 1151-53, A-213, 218-22.

In place of an adjudicative proceeding in which the

censoring body applied precisely articulated standards

to the speech it sought to restrain, the censors here

proceeded by “trial-and-error,” 423 F.Supp. at 1124, A-

158, to foreclose speech which was “inappropriate.”

This standard was “so vague that no one can adequat-

ely define it.” 423 F.Supp. at 1149, A-214. The FCC

provided no administrative process whatsoever by

which one could appeal a determination that a pro-

gram, a theme or a line of dialogue would be “in-

appropriate” for family viewing. 17

(Footnote continued from previous page)

instituting proceedings and proving that the material is unprotected

rest with the censor; the restraint imposed prior to review must be

for a brief period, and only to preserve the status quo; and a

“prompt final judicial determination must be assured.” South-

eastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 560. C7.

FCC v. Pacifica Foundation, 438 U.S. 726, 736-37 & n.10 (1978)

(distinguishing “the subsequent review of program content,” from

a prior restraint on speech) (emphasis added). None of the

substantive or procedural requirements for the imposition of a prior

restraint is met here.

7 This Court has noted that, in determining the con-

stitutionality of a system of prior restraint, “[e]ach medium of

expression . . . must be assessed for First Amendment purposes by

standards suited to it, for each may present its own problems.”

Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 557.

Broadcasting presents its own particularly complex problems, for it

is a medium to some extent subject to government regulation. See,

e.g., FCC v. Pacifica Foundation, supra, 438 U.S. at 748.

(Footnote continued on next page)

20

Rather than permitting the district court to respond

to the serious constitutional issues raised by the Family

Viewing Policy’s restraint of speech, the Ninth Circuit’s |

decision actually removed the censorship system from

judicial superintendence. By holding that judicial re-

view must be delayed pending “an explicit and well

articulated determination” by the FCC, it allows an

alleged wrongdoer to determine at its leisure and on

what record its actions will be reviewed. Meanwhile.

the agency’s restraint on speech will be allowed to

continue unabated, stifling the exercise of First Amend-

ment rights on an ongoing basis. See Southeastern

Promotions, Ltd. v. Conrad, supra, 420 U.S. at 562

(“During the time prior to judicial determination, the

restraint altered the status quo.... The delay and

uncertainty inevitably discouraged use of the forum.”’)

The decision of the Ninth Circuit thus compounded the

very injuries to free speech that courts are required to

remedy.

(Footnote continued from previous page)

This Court has yet to review a censorship system operating as

a prior restraint on the content of broadcasting. Lower courts have

concluded, however, that the “central concern [of Freedman vy.

Maryland}, that judicial proceedings be available for rapid remo-

val of unwarranted prior restraints,” Home Box Office, Inc. v. FCC,

567 F.2d 9, 50 (D.C. Cir.) (per curiam), cert. denied, 434 U.S. 829

(1977), is fully applicable in the area of broadcasting. In Midwest

Video Corp. v. FCC, 571 F.2d 1025 (8th Cir. 1978), aff'd on other

grounds, 440 U.S. 689 (1979), the Court of Appeals for the Eighth

Circuit found that FCC rules requiring cable operators to exclude

obscene and indecent material from access to their facilities failed

to provide any of the “prior-restraint safeguards” mandated by this

Court in Southeastern Promotions, Ltd. v. Conrad or Freedman v.

Maryland. 57\ F.2d at 1057. The Ninth Circuit’s decision to refer

this case to the FCC ignores that “central concern” and is thus in

direct conflict with Home Box Office and Midwest Video.

21

b. The Ninth Circuit’s decision creates intolerable

obstacles to the vindication of First Amendment

rights.

The delay inherent in an administrative proceed-

ing, particularly one as vague as that proposed by the

Ninth Circuit,’® places an unacceptable burden on the

protection of First Amendment rights. As this Court

repeatedly has cautioned: “if judicial review is made

unduly onerous, by reason of delay or otherwise, the

[censor’s] determination in practice may be final.”

Southeastern Promotions, Ltd. v. Conrad, supra, 420

US. at 561.

As a practical matter, initial reference to the FCC

for the development of a record and findings seriously

diminishes the likelihood that the real facts of the

agency’s conduct will ever surface. This case plainly

illustrates that extensive discovery is essential to expose

evidence of an agency’s activities. When Petitioners

instituted this suit, they knew merely the skeleton of the

FCC’s efforts. Only with the aid of discovery were they

able to learn of the private meetings and threatening

telephone calls between Wiley and network presidents,

the manipulative use of leaked press statements, and the

threat of a revised license renewal process. A litigant

forced to proceed before the FCC, however, would be

limited to the minimal discovery tools available in FCC

proceedings. The FCC mechanisms for discovery are

especially restricted when discovery is sought against

the agency itself. See 47 C.F.R. § 1.311(b) (2)-(4).

'8 The opinion below makes it nearly impossible to know what

kind of proceeding the FCC should hold, or what questions it

should address.

22

Moreover, the litigant’s ability to use those dis-

covery tools would be controlled by the very agency

whose conduct it hoped to expose. A record developed

under the control of the FCC would have painted an

entirely different picture of the FCC’s conduct than that

which emerged under the neutral auspices of the district

court.'9 That record would then be brought before the

court on review. By placing the responsibility for

developing and finding facts in the very body charged

with wrongdoing, the Ninth Circuit seriously impeded a

plaintiffs ability ever to obtain relief.

Finally, subjecting First Amendment claims to a

_ burdensome administrative process unlikely to produce

any benefit to the litigant or the reviewing court could

itself deter the raising of those claims. The FCC

proceedings to which the Ninth Circuit refers this case

are unlikely to yield any useful results. Despite the

Ninth Circuit’s speculations, an about-face confession of

error by the FCC seems at best improbable. The FCC

consistently has denied that any of its actions were

unconstitutional or otherwise unlawful, both Prior to

and throughout the course of this litigation. See 423

F.Supp. at 1081, A-61. The Ninth Circuit’s decision to

refer this case to the FCC on the theory that the FCC

might have taken that position under oath for “tactical”

reasons, and might later recant, is profoundly disturb-

ing. To the contrary, persons who hold positions of

8 The limitations on factfinding within the agency and the

consequent impairment of a litigant’s ability to challenge agency

action were dramatically revealed during the course of trial before

the district court. The district judge’s persistent questioning of the

FCC’s counsel revealed a telling omission in the factual record

developed before the FCC in Illinois Citizens Comm. Sor Broad-

casting v. FCC, 515 F.2d 397 (D.C. Cir. 1975), and relied upon by

the United States Court of Appeals for the District of Columbia

Circuit. That omission “call{ed] into serious question the credi-

bility of the Commission in general. . . .” 423 F.Supp. at 1122,

A-154.

23

public trust presumably would be “open and forthcom-

ing,” 609 F.2d at 364, A-21, when placed under oath in

a deposition or in a court of law.

The Court of Appeals’ willingness to tolerate, and

indeed to create, those obstacles to relief reveals a

complete misapprehension of the First Amendment

issues before it. Petitioners faced an unusal dilemma.

The FCC-imposed censorship system was in place and

functioning, but the accused agency steadfastly denied

any involvement in the system. 423 F.Supp. at 1083, A-

66. In short, it is difficult to conceive of a case in which

the need for judicial review was more immediate, or

withholding that review pending agency proceedings

more threatening to constitutional rights, than existed

here.

The need for this Court to exercise its jurisdiction is

compelling. The Ninth Circuit’s unprecedented use of

the primary jurisdiction doctrine, if allowed to stand,

poses a serious and constitutionally intolerable threat to

the preservation of First Amendment freedoms.

3. Whether The FCC Complied With The Proce-

dural Dictates Of The APA Is A Question For

Courts, Not For Administrative Agencies, To De-

cide.

Even though the district court found that the FCC

had “total[ly] disregard[ed] the procedural protec-

tions” of the APA, and had “dictated and negotiated

[the Family Viewing Policy] wholly outside the proce-

dures of the Act,” 423 F.Supp. at 1151, A-214, the

Ninth Circuit has sent the case back to that agency for

review of the APA issue. The reference is both illogical

and contrary to the APA itself.

24

Section 10(a) of the APA, 5 U.S.C. § 702, provides

that a “person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.” The Ninth Circuit

refused to permit judicial review when the “legal

wrong” was violation of the APA itself. The Ninth

Circuit’s coriclusion that FCC review of an APA viola-

tion was necessary conflicts with decisions of this Court

and with the express and implied holdings of other

circuit and district courts.

Through a series of actions, taken over the course

of many months, the FCC engaged in what amounted

to rulemaking. Those actions included speeches by

Chairman Wiley, meetings among FCC personnel and

broadcast industry personnel, various telephone calls

and leaked news stories, and the adoption of the FCC’s

February 1975 Report which approved the Family

Viewing Policy before it was enacted by the NAB. The

district court held that those FCC actions constituted

agency policymaking, 423 F.Supp. at 1151-53, A-218-

22, and as such they were subject to the notice and

comment requirements of Section 4 of the APA, 5

U.S.C. § 553.20

Because it is so obvious that there must be judicial

review of APA violations, few courts have commented

on the point.21| This Court, however, has more than

20 See Moss v. CAB, 430 F.2d 891 (D.C. Cir. 1970).

21 The questions inherent in determining whether the FCC

violated the APA include: whether the FCC’s acts did amount to

“agency action” within the meaning of the APA and whether

notice and comment were necessary when the FCC first set out on

the path which led to the Family Viewing Policy. Because those

questions are essentially legal, they are not subject to the primary

jurisdiction doctrine; moreover they are clearly within the con-

ventional expertise of judges, rather than administrative agencies.

E.g., Nader v. Allegheny Airlines, Inc., supra. Thus, there is no

practical reason for reference to the FCC.

25

once recognized the validity of that position: “Of course,

the court must determine whether the agency complied

with the procedures mandated by the relevant statutes.”

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 549 n.21 (1978) (Emphasis added ).22 In

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 417 (1971), cited by this Court in Vermont

Yankee, a district court reviewed the Secretary of

Transportation’s procedures for their compliance with,

inter alia, 5 U.S.C. §§553(a)(2) and 554(a).

Although the Secretary had not made formal findings,

“the absence of formal findings [did] not necessarily

require that the case be remanded to the Secretary.” Jd.

Since primary jurisdiction can be raised at any time,

even on the Court’s own motion, the clear inference is

that reference to the agency was not required.

This Court has recognized that review of agency

action should be provided expeditiously, before unnec-

essary injury to substantial rights occurs. See Abbott

Laboratories v. Gardner, 387 U.S. 136, 153 (1967).

Consistent with that recognition, no other court has ever

required an agency to determine if it has complied with

the notice and comment requirements of the APA. To

the contrary, several courts, on facts analogous to those

in this case, specifically have held that district courts

have jurisdiction to hear APA or APA-like challenges.

Humana of South Carolina, Inc. v. Califano, 590 F.2d

1070, 1980-81 (D.C. Cir. 1978) (district court had

jurisdiction over claim that proceeding not consistent

with 5 U.S.C. § 553); Independent Broker-Dealers’

22 District courts commonly review agency action for com-

pliance with the APA. E.g., Community Nutrition Inst. v. Butz, 420

F.Supp. 751 (D.D.C. 1976); Center for Auto Safety v. Tiemann,

414 F.Supp. 215 (D.D.C. 1976), remanded on other grounds, 580

F.2d 689 (D.C. Cir. 1978); A. E. Staley Mfg. Co. v. United States,

310 F.Supp. 485 (D.Minn. 1970).

**

26

Trade Ass’n v. S.E.C., 442 F.2d 132, 136-37,142-43

(D.C. Cir.), cert. denied, 404 U.S. 828 (1971) (district

court had jurisdiction over claim that SEC “request” to

New York Stock Exchange to change its Constitution

violated notice and hearing requirements of 15 U.S.C.

§ 78s(b)).

The holding below postpones review of agency

action for compliance with the APA. It does so in the

face of clear case and statutory dictates to the contrary.

Since the basic issues are legal ones, reference to the

FCC provides no countervailing gains.

27

CONCLUSION

For each of the foregoing reasons, Petitioners pray

this Court to grant this Petition for a writ of certiorari to

review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this

matter.

DATED: April 28, 1980.

Respectfully submitted,

RONALD L. OLSON

Monroe E. Price

Nancy Y. BEKAVAC

CHARLES D. SIEGAL

MUNGER, TOLLES & RICKERSHAUSER

612 South Flower Street

Fifth Floor

Los Angeles, California 90017

(213) 683-9100

SETH M. HUFSTEDLER

JOHN SOBIESKI

DENNIS M. PERLUSS

EVELYN BALDERMAN Hutt

BEARDSLEY, HUFSTEDLER & KEMBLE

611 West Sixth Street

Suite 2220

Los Angeles, California 90017

(213) 626-0671

Attorneys for Petitioners