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

No. 79-1717

IN THE

‘Supreme Court of the United States

OCTOBER TERM, 1979

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

. Petitioners,

AMERICAN BROADCASTING COMPANIES, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

JOINT BRIEF IN OPPOSITION FOR RESPONDENTS

AMERICAN BROADCASTING COMPANIES, INC.,

CBS INC.,

NATIONAL ASSOCIATION OF BROADCASTERS,

NATIONAL BROADCASTING COMPANY, INC.

DANIEL H. MARGOLIS

BARBARA C, STERGIS

BERGSON, BORKLAND, MARGOLIS

& ADLER

11 Dupont Circle, N.W.

Washington, D.C. 20036

Counsel for Respondent American

Broadcasting Companies, Inc.

J. ROGER WOLLENBERG

TIMOTHY B. Dyk

CAMERON F. KERRY

Of Counsel: ANDREA TIMKO SALLET

RALPH E. GOLDBERG WILMER & PICKERING

51 West 52 Street 1666 K Street, N.W.

New York, New York 10019 Washington, D.C. 20006

Counsel for Respondent CBS Inc.

(Additional list of counsel on inside cover)

Br all

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

CorYDON B. DUNHAM

STEPHEN F.. STANDER

30 Rockefeller Plaza

New York, New York 10020

July 16, 1980

ERWIN G. KRASNOW

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for Respondent National

Association of Broadcasters

IRVING R. SEGAL

EUGENE A. SPECTOR

SCHNADER, HARRISON, SEGAL

& LEwIs

1719 Packard Building

Philadelphia, Pennsylvania 19102

Counsel for Respondent National

Broadcasting Company, Inc.

No. 79-1717

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

WRITERS GUILD OF AMERICA, WEST, INC., e¢ al.,

Petitioners,

Vv.

AMERICAN BROADCASTING COMPANIES, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

JOINT BRIEF IN OPPOSITION FOR RESPONDENTS

AMERICAN BROADCASTING COMPANIES, INC.,

CBS INC.,

NATIONAL ASSOCIATION OF BROADCASTERS,

NATIONAL BROADCASTING COMPANY, INC.

QUESTION PRESENTED

Whether the Ninth Circuit correctly invoked the doc-

trine of primary jurisdiction in ordering referral to the

Federal Communications Commission for initial consider-

ation issues of regulatory policy under the Communica-

tions Act and under the First Amendment concerning

actions of Government respondents in connection with the

adoption of the “family viewing policy.”

é

.

: rts

a ¢

7 . x

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES ......................-c--cscesseesoeeee

GR RPCONE PINNED, ics cnencctsonscsasmvrsnecsishingesonens

TOE erisinnpesisenniniipicinentdihoccenpiaimnenbsanieaiandel

CONSTITUTIONAL AND STATUTORY PROVI-

I Ce OE I ooiinopcnspynininnens viahindinegaamnnddaebaiiiaal tke

STATEMENT OF THE CASE .02222.2..2..e.eeceeeececseneees

SUMMARY OF ARGUMENT .

ARGUMENT

I. PETITIONERS HAVE FAILED TO SHOW

THAT THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH DECISIONS OF THIS

COURT OR OF ANY OTHER COURT OF AP-

PEALS, PRESENTS IMPORTANT ISSUES

WARRANTING REVIEW BY THIS COURT,

OR IS ERRONEOUS ...................

II. SINCE THE DECISION OF THE COURT OF

APPEALS IS NONFINAL, THE CASE IS NOT

RIPE FOR REVIEW BY THIS COURT ............

CONCLUSION ................. PEER A A IO

(iii)

Page

12

13

13

iv

TABLE OF AUTHORITIES

Page

United States Constitution

CS oo ssetacaeascenbuonsasoossonieie Passim

Cases

Abbott Laboratories v. Gardner, 387 U.S. 186

Ra a. < snatonnmeaspeentenpesinees 22

Ackerman v. CBS, 301 F. Supp. 628 (S.D.N.Y.

a. scasinlsosncbaoebetses 15

Action for Children’s Television v. FCC, 564 F.2d

I cas uchisnininemenndacinsnd 4,17,19

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).. 10

Allen B. Dumont Laboratories, Inc. v. Carroll, 184

F.2d 158 (3d Cir. 1950), cert. denied, 340 U.S.

929 (1951) idelenateke Mitatacacadeeodebieneds 16

Ambassador, Inc. v. United States, 325 U.S. 317

i useeunbuinslininons 14

American Construction Co. v. Jacksonville, Tampa

& Key West Railway, 148 U.S. 372 (1893) .......... 23

Atchison, Topeka & Santa Fe Railway v. Wichita

Board of Trade, 412 U.S. 800 (1978) -.................. 17

Brotherhood of Locomotive Firemen v. Bangor &

Aroostook Railroad, 389 U.S. 327 (1967) -........... 22

Burlington Truck Lines v. United States, 371 U.S.

LESSER SMT ng Pa OR 21

Carter v. AT&T, 365 F.2d 486 (5th Cir. 1966),

cert. denied, 385 U.S. 1008 (1967) ....................... 14

CBS v. Democratic National Committee, 412 U.S.

OREN RES Eis SS a oO ERT 4, 10, 11, 18, 19

CBS v. FCC, 454 F.2d 1018 (D.C. Cir. 1971) ........... 21

Children’s Television Report and Policy Statement,

ERE RE Pe ee ee 4,19

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

I a ates 21

City of Trenton v. FCC, 441 F.2d 1829 (3d Cir.

i ewntsiebiletwencinctia 16

Cobbledick v. United States, 309 U.S. 323 (1940).. 22

Daly v. CBS, 309 F.2d 88 (7th Cir. 1962) ................ 14

Vv

TABLE OF AUTHORITIES—Continued

Far East Conference v. United States, 342 U.S. 570

(1952) ERS Rea OS RANG EARS POR A

FCC v. National Citizens Committee for Broad-

casting, 486 U.S. 775 (1978) .......-..

FCC v. Pacifica Foundation, 488 U.S. 726 (1978)..

FCC v. Pottsville acerca te Co., 309 U.S. 1384

St) RENSSELAER RRR Er A Pad ee

Gemini Enterprises, Inc. V. WFM Y Television

Corp., 470 F. Supp. 559 (M.D.N.C. 1979) -..........

Gillespie vV. United States Steel Corp., 379 U.S. 148

CRIS: iit caiie Rh atachactatatdcasidnsipecesiiea de niicecciute Garh iccsolsoLovone

Gordon Vv. NBC, 287 F. Supp. 452 (S.D.N.Y. 1968) ..

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.,

Se I ID cinaiteekee adits iene ee is chin

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

Cir.) (per curiam), cert. denied, 434 U.S. 829

2 | OE RSIRS REREN SP EN Vai SOUP a as DOE

Land v. Dollar, 380 U.S. 781 (1947)...

Larson V. Domestic & Foreign Commerce Corp.,

ee a I CI aad ick cetten ind dentsuicetee

Maguire v. Post Newsweek Stations, 24 Rad. Reg.

(P&F) 2d 2094 (D.C. Cir. 1972)

Mark v. FCC, 468 F.2d 266 (1st Cir. 1972) _...........

Mossachusetts Bay Telecasters, Inc. v. FCC, 261

F.2d 55 (D.C. Cir. 1958), cert. denied, 366 U.S.

Oe Fe a ake

Massachusetts Universalist Convention v. Hil-

dredth & Rogers Co., 183 F.2d 497 (1st Cir.

pa RERR RISE YS COSC Sie eh ee ae

McCarthy v. Carter, No. 76-1697 (D.D.C. Sept. 17,

1976), aff'd, No. 76-1865 (D.C. Cir. Sept. 22,

|. ESR Aa eC mEN Howe FS Re SDRAM Fe ce EO aa

Mclntire v. Wm. Penn Broadcasting Co., 151 F. 2d

597 (8d Cir. 1945), cert. denied, 327 U.S. 779

fe REET ALES SE Se oR a eve aaa Cae

MCI Communications Corp. v. AT&T, 496 F.2d

214 (8d Cir..1974) ........................

Mt. Mansfield Television, Inc. v. FCC, 442 F. 2d 470

(2d Cir. 1971)

Page

14

18

14

15

16

14

19

e*

vi

TABLE OF AUTHORITIES—Continued

Page

National Association of Independent Television

Producers & Distributors vy. FCC, 516 F.2d 526

Rs ED teh rset cieeascigsbcdssndckncteeaceatiabdintpicineiennns 18

National Association of Theatre Owners v. FCC,

420 F.2d 194 (D.C. Cir. 1969), cert. denied, 397

U.S. 922 (1970) « 19

NBC v. United States, 319 U.S. 190 (1948) ............ 18

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

ch Spe TE ig Reed seer Re a Ce Re OF Oe 18

Report on the Broadcast of Violent, Indecent and

Obscene Material, 51 F.C.C.2d 418 (1975)........ 7

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

289 (19738) Se cdenaaiien 14

Rosado v. Wyman, 397 U.S. 397 (1970)...................- 20

SEC v. Chenery Corp., 318 U.S. 80 (1948) ............... 21

SEC v. Chenery Corp., 882 U.S. 194 (1947) ............ 21

The Polite Society, Inc. v. WLS, Inc., No. 74-Civ.-

Se A IE ED tek ogecdentccigeiviecernniakenbigdhreacstnnant 15

Thompson V. Texas Mexican Railway, 328 U.S. 134

et ellos 17

United States v. General Motors Corp., 323 U.S.

A) SAARI crease 23

United States v. Philadelphia National Bank, 374

U.S. 821 (1963) 20

United States v. Western Pacific Railroad, 352

i ECD ie lek ndei cect cthasdeaecienapesieielaa 14, 17, 20

WKAT, Inc. v. FCC, 296 F.2d 375 (D.C. Cir.),

cert. denied, 868 U.S. 841 (1961) .............-.........-- 17

WORZ, Inc. v. FCC, 268 F.2d 889 (D.C. Cir. 1959),

cert. denied, 876 U.S. 914 (1964) ....................... 17

Yale Broadcasting Co. Vv. FCC, 478 F.2d 594 (D. C.

Cir.), cert. denied, 414 U.S. 914 (1978) ............... 18

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) ; A 22

vii

TABLE OF AUTHORITIES—Continued

Statutes Page

Administrative Procedure Act, as amended:

Section 5(d), 5 U.S.C. § 554(e) — 2.00. 20

Section 10(a), 5 U.S.C. § 702... 2, 22

Rf St RIE Sansone ee Aaa oe 1

I a ceisiuiae 10

nic risccocascsnntinschetnadecndinedsaasiitinaieencinlecoend 2,16

Communications Act of 1934, as amended :

Section 826, 47 U.S.C. § 826 ......... 5

Section 402(a), 47 U.S.C. § 402(a) .......... 2, 16, 22, 23

Section 405, 47 U.S.C. § 406.00... 2, 16, 18, 20

Legislative Materials

H.R. Rep. No. 2670, 83d Cong., 2d Sess. (1954)...... 4

H.R. Rep. No. 281, 88th Cong., Ist Sess. (1963) ...... 4

Regulations

a ae 20

IRS ARIES PENTA vee are eras Lae es AEE 20

I TIE PIII, siniccssecsisccnshincise tinecncncinnspnabseneonsniicecs 19

+ Sb” Seth aR ee epeernnr resent eset 19

Ge ME URI cdi iia eig cade caeriee aidteiabcacaenas 19

Se Sa ks Se I cnc shcsntcitiititeintietancenisnmmncs 19

fk & Ee & GNC aeoe no : 20

Miscellany

Levin, The Limits of Self-Regulation, 67 COLUM.

5 FRR er eae Oe 4

3 K. Davis, ADMINISTRATIVE LAW § 19. 07 (1958) ... 17

R. Stern & E. Gressman, SUPREME COURT PRACTICE

a ee ee BR kaa roc se le ecceee nesideinieiccncoann 23

NAB Television Code, Eighteenth Edition (June,

p | RaSh ER RM Ei: AeA AOR eR SOLE ee 8,7

NAB Television Code, Twentieth Edition (Nov.,

TEE sancsiiascascddecncaec tad abi eascatlni ip canal 7

BROADCASTING, Nov. 15, 1976 .............2.....-0cc--ccsecseeees 10

Respondents American Broadcasting Companies, Inc.,

CBS Inc., National Association of Broadcasters, and Na-

tional Broadcasting Company, Inc. respectfully request

that this Court deny the Petition for a Writ of Certiorari

filed herein on April 29, 1980, to review the judgment

and opinion of the United States Court of Appeals for

the Ninth Circuit entered in this proceeding on Novem-

ber 14, 1979.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 609 F.2d 355 (1979) and

appears in the Appendix to the Petition at A-4. The

opinion of the United States District Court for the Cen-

tral District of California is reported at 423 F. Supp.

1064 (1976) and appears in the Appendix to the Petition

at A-40."

JURISDICTION

The judgment ‘of the court of appeals was entered on

November 14, 1979. On January 30, 1980, the court of

appeals denied petitioners’ motion for rehearing and sug-

gestion of appropriateness of rehearing en banc. The

petition for a writ of certiorari* was filed on April 29,

1980.* The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

1 Hereinafter citations to the opinions below will be given

as “609 F.2d at ——, Pet. App. at ——” and “423 F. Supp.

at , Pet. App. at ——.”

2 Hereinafter citations to the Petition for a Writ of Cer-

tiorari will be given as “Pet. at ——.”

’On May 16, 1980, at the request of these respondents, the

time for filing this brief in opposition was extended to June 21,

1980, approximately the same date on which the Govern-

ment’s response was due. Thereafter, at the Government’s

request, the time for filing oppositions was extended to

July 16, 1980.

**

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides in pertinent part:

Congress shall make no law . . . abridging the

freedom of speech, or of the press....

Section 10(a) of the Administrative Procedure Act, 5

U.S.C. § 702, which appears in full in the Appendix to

the Petition at A-3, provides in pertinent part:

A person suffering legal wrong because of agency

action . . . is entitled to judicial review thereof.

Section 2342 of Title 28 of the United States Code,

28 U.S.C. § 2342, provides in pertinent part:

The court of appeals has exclusive jurisdiction to ,

enjoin, set aside, suspend (in whole or in part), or

to determine the validity of—

(1) all final orders of the Federal Communica-

tions Commission made reviewable by section 402 (a)

of title 47...

Section 402(a) of the Communications Act, 47 U.S.C.

§ 402(a), provides:

Any proceeding to enjoin, set aside, annul, or suspend

any order of the Commission under this chapter (ex-

cept those appealable under subsection (b) of this

section) shall be brought as provided by and in the

manner prescribed in chapter 158 of title 28.

Section 405 of the Communications Act, 47 U.S.C.

§ 405, provides in pertinent part:

After an order, decision, report, or action has been

made or taken in any proceeding by the Commission,

... any party thereto, or any other person aggrieved

or whose interests are adversely affected thereby,

may petition for rehearing only to the authority mak-

3

ing or taking the order, decision, report, or action;

and it shall be lawful for such authority, whether it

be the Commission or other authority designated un-

der section 155(d) (1) of this title, in its discretion,

to grant such a rehearing if sufficient reason there-

for be made to appear... . The filing of a petition

for rehearing shall not be a condition precedent to

judicial review of any such order, decision, report, or

action, except where the party seeking such review

(1) was not a party to the proceedings resulting in

such order, decision, report, or action, or (2) relies

on questions of fact or law upon which the Commis-

sion, or designated authority with the Commission,

has been afforded no opportunity to pass....

STATEMENT OF THE CASE

This case arises from the adoption by respondent Na-

tional Association of Broadcasters (“NAB”) of the “fam-

ily viewing policy,” an effort to formulate editorial guide-

lines for the broadcast of violent or sexually-oriented tele-

vision programming. The family viewing policy provides

that the first hour of network prime time programming

as well as the immediately preceding hour should not

contain programs unsuitable for general family viewing

and that advisories should precede such programs broad-

cast at later hours.*

Petitioners are members of the entertainment industry

involved in program production—producers, directors,

writers, and actors—who brought these actions against re-

spondents Federal Communications Commission (“FCC”

or “Commission’’), its individual members, the NAB, and

the television networks to challenge the family viewing

policy. They alleged that it violated, inter alia, the First

Amendment and the Communications Act. The district

court, after trial, entered judgment for petitioners. The

*NAB Television Code, Eighteenth Edition (June, 1975),

set out at 609 F.2d at 357 n.2, Pet. App. at A-6 n.2.

4

court below vacated the judgment in order to allow pre-

liminary consideration by the Commission of petitioners’

claims against the FCC and,its Commissioners.

The NAB is the principal industry association of broad-

cast licensees. For many years, the NAB has adopted

editorial guidelines to assist broadcasters in meeting their

responsibility to program in the public interest. Since

1952, these policies have appeared in the NAB Television

Code and have addressed the content of programs directed

to audiences that include a large percentage of children.®

Congress and the Federal Communications Commission

have relied on such self-regulatory efforts of broadcasters

as the Television Code,® recognizing that this approach

helps preserve “the widest journalistic freedom consistent

with [licensees’] obligations” ’ integral to the system of

broadcast regulation. For example, the Commission de-

cided not to adopt rules concerning advertising broadcast

during children’s programs when the NAB incorporated

pertinent limitations into the Television Code. Children’s

Television Report and Policy Statement, 50 F.C.C.2d 1,

13 (1974). In Action for Children’s Television v. FCC,

5 The Code includes provisions relating to “advancement of

education and culture,” “community responsibility,” “general

program standards,” “treatment of news and public events,”

“general advertising standards,” and “responsibility toward

children.” For each of these areas, the Code standards pro-

vide general statements of principle to guide subscribing

NAB members. —

6 See, e.g., H.R. Rep. No. 281, 88th Cong., lst Sess. 25-34

(1963) (network program procurement) ; H.R. Rep. No. 2670,

83d Cong., 2d Sess. 2-3 (1954) (advertising of alcoholic bev-

erages) ; see generally Levin, The Limits of Self-Regulation,

67 CoLuM. L. REV. 603, 631-33 (1967).

7 CBS v. Democratic National Committee (“CBS v. DNC”),

412 U.S. 94, 110 (1978).

5

564 F.2d 458 (D.C. Cir. 1977), the Court of Appeals for

the District of Columbia Circuit upheld this decision as

well within the Commission’s discretion.

The family viewing policy came under consideration

early in the 1974 television season. As a result of con-

tinuing concern about violent or sexually-oriented pro-

gram content, the NAB began to consider revisions of

those portions of the Code dealing with programming for

audiences that include children. The NAB’s review was

prompted by broadcasters’ perception of their public re-

sponsibilities,* as well as growing public and congres-

sional pressure.® It also reflected broadcasters’ concern

that failure to adopt self-imposed policies might lead to

formal Commission regulation.*° Indeed, in 1974, com-

mittees of both houses of Congress requested the Commis-

sion to report on its actions or plans to limit the impact

of the objectionable programming on children.”

In preparing its report to Congress, the Commission

considered whether formal regulatory action was required

or permissible, or whether the Commission should con-

tinue to rely on the NAB Code and other self-regulatory

efforts. Richard Wiley, then Commission Chairman, be-

lieved any formal agency action that directly interfered

with the content of television programming posed serious

problems under the First Amendment and Section 326 of

the Communications Act, 47 U.S.C. § 326, which prohibits

Commission censorship. As a result, he preferred affirma-

8 423 F. Supp. at 1094, Pet. App. at A-90 to A-91.

® This congressional concern had existed for many years.

For a chronology of related congressional hearings, see 609

F.2d at 359 n.5, Pet. App. at A-9 n.5.

10 423 F. Supp. at 1099-1102, Pet. App. at A-101 to A-109.

11 609 F.2d 358-59, Pet. App. at A-9 to A-10.

6

tive action on the part of broadcasters that would obviate

any need for Commission regulation.

The district court found that Chairman Wiley’s efforts

to stimulate broadcaster action amounted to “pressure”

that resulted in the adoption of the family viewing po-

licy.'2. These efforts consisted of a series of three public

speeches in which Chairman Wiley expressed his views

on Commission action and urged broadcaster self-

regulation, and a series of discussions between Wiley or

his staff and representatives of the broadcast industry **

during which Wiley reiterated his preference for self-

regulation and solicited information about broadcasters’

efforts to deal with programming considered unsuitable

for children.* While Chairman Wiley at various times

disclaimed any Commission authority to act in this area,

he did indicate that Commission rulemaking might be

necessary if broadcasters failed to take independent

action.”®

On February 4, 1975, the NAB Television Code Review

Board 7° recommended that the NAB Television Board of

Directors amend the Television Code by adopting a family

viewing policy. On February 19, the Commission is-

12 423 F. Supp. at 1097-98, Pet. App. at A-98 to A-99.

18 These representatives included the presidents of all three

broadcast networks as well as other high-level executives.

14 423 F. Supp. at 1092-1119, Pet. App. at A-86 to A-146.

Although Chairman Wiley raised several specific proposals

which he urged broadcasters to consider for adoption in the

Code, these were not included in the revisions. 423 F. Supp.

at 1095-1101, Pet. App. at A-94 to A-105.

15 Td,

16 423 F. Supp. at 1116-17, Pet. App. at A-140 to A-142.

The Code Review Board was responsible for interpretation

and administration of the Code and for initial consideration

of amendments.

7

sued its report to Congress noting this recommen-

dation and stating that the Commission would not take

regulatory action in this area. Instead, it would rely on

the proposed industry self-regulation. Report on the

Broadcast of Violent, Indecent and Obscene Material, 51

F.C.C.2d 418 (1975). In April, 1975, the NAB Television

Board of Directors adopted the family viewing policy

substantially as proposed by the Code Review Board.”

Petitioners filed two actions ** in the United States Dis-

trict Court for the Central District of California in the

fall of 1975 against the respondent television networks,

the NAB, the Federal Communications Commission, and

individual Commission members.’* Both sets of plaintiffs

alleged that the NAB’s adoption of the family viewing

policy violated the First Amendment and the Sherman

Act. They also alleged that the Commission’s role in that

adoption violated the First Amendment and the Commu-

17423 F. Supp. at 1119, Pet. App. at A-146. At the time

the family viewing policy was adopted, “continuing, willful,

or gross” refusal by an NAB member to adhere to the Code

would have resulted in expulsion from the NAB. 423 F. Supp.

at 1123, Pet. App. at A-157; NAB Television Code, Eighteenth

Edition (June, 1975). NAB membership is no longer condi-

tioned on adherence to the Code. The only current conse-

quence of Code violations is the inability to display the NAB

Code Seal of Good Practice. See NAB Television Code, Twen-

tieth Edition (Nov., 1978). Neither NAB membership nor

Code subscription has ever been necessary to acquire or

renew an FCC broadcast license, or to become or remain a

network affiliate. The family viewing policy itself is not

being enforced during this litigation. See text at 18, 23 infra.

18 Writers Guild of America, West, Inc. v. ABC (“Writers

Guild’), No. CV 75-3641-F (C.D. Cal.) ; Tandem Productions,

Inc. v. CBS (“Tandem”), No. CV 75-3710-F (C.D. Cal.).

19 The actions were consolidated in the district court and in

the court of appeals.

8

nications Act. In the Writers Guild case, violation of the

Administrative Procedure Act (“APA’’) was alleged as

well. Each complaint sought declaratory and injunctive

relief against the private defendants and against the

Commission and its members. In addition, the Tandem

plaintiffs sough*. damages against all defendants on First

Amendment claims and treble damages on antitrust

claims. Before bringing these actions, none of the plain-

tiffs sought to present any of these contentions to the

Commission for consideration.

The defendants moved to dismiss on the grounds, inter

alia, that the issues raised were within the primary juris-

diction of the Commission. The district court denied these

motions, with only brief explanation.” Trial of the anti-

trust claims was stayed." There followed extensive, ex-

pedited discovery and then a trial on the merits of the

First Amendment, Communications Act, and APA claims.

On November 4, 1976, the district court issued a lengthy

opinion holding that the Commission, its members, the

networks, and the NAB all violated the First Amend-

ment by their roles in the adoption of the family viewing

policy.“ The court held that the private defendants were

liable for damages, but that the Commission and its

members were immune from damage liability.”* The court

left the amount of damages for future proceedings.

In its opinion, the court reconsidered the motions to

dismiss on primary jurisdiction grounds. Although the

20 423 F. Supp. at 1073, Pet. App. at A-44.

21 609 F.2d at 358 n.4, Pet. App. at A-7 n.4.

22 423 F. Supp. 1064, Pet. App. at A-40.

23423 F. Supp. at 1158-59, Pet. App. at A-234 to A-236.

The court also denied an award of counsel fees to the plain-

tiffs. 423 F. Supp. at 1159-61, Pet. App. at A-236 to A-240.

9

court recognized that the Commission was not necessarily

excluded from regulating in this area,™ it gave three

reasons for concluding that the FCC had no primary

jurisdiction. First, the court rejected the argument that

issues surrounding the family viewing policy called on

the Commission’s “recognized expertise.” In its view, the

Commission could offer no special insight on the First

Amendment questions presented, and there were no fac-

tual issues that required the Commission’s preliminary

determination.” Second, the court found that the Com-

mission’s views on the merits had been clarified in the

course of the litigation and showed that “it ha[d] pre-

determined the issues adversely to the plaintiffs.” *

Finally, the court held that petitioners’ claims raised

charges of “‘serious misconduct” on the part of Chairman

Wiley and the Commission which the court believed the

Commission could not judge impartially.

The district court’s decision on the merits—described

by the Ninth Circuit as “inseparable” from its jurisdic-

tional holdings **—rested on what it termed a “bedrock

principle” of the Communications Act: that each broad-

caster has a duty to make independent decisions concern-

ing access to the broadcast medium.** Chairman Wiley,

the court found, by his speeches and meetings had “pres-

sured” the NAB and the networks into adopting the fam-

ily viewing policy.” Paradoxically, the court also found

that the defendants “freely chose” to amend the NAB

24 423 F. Supp. at 1090-92, Pet. App. at A-82 to A-85.

25 423 F. Supp. at 1090, Pet. App. at A-82.

26 423 F. Supp. at 1081, 1090-91, Pet. App. at A-61, A-82 to

A-83.

27 609 F.2d 361, Pet. App. at A-14.

28 423 F. Supp. at 1181-35, Pet. App. A-173 to A-182.

29 423 F. Supp. at 1097-98, Pet. App. at A-98.

10

Code.” Finding accession to such pressure by broadcast-

ers equivalent to the private enforcement of a state-

enforced custom of segregation held to be governmental

action in Adickes v. S. H. Kress & Co., 398 U.S. 144, 171

(1970), and finding that the networks, the Commission,

and the NAB had acted jointly, the court held that adop-

tion of the family viewing policy violated the First

Amendment.** In reaching this decision, the district

court sought to distinguish CBS v. DNC, 412 U.S. 94, in

which this Court held that FCC licensees do not violate

the First Amendment by adopting editorial policies that

have the effect of denying access to some who wish it,

and in which a plurality of the Court also found that

such action does not amount to governmental action.”

The district court granted declaratory relief, ruling,

inter alia, that the NAB, by enforcing the family viewing

policy, and individual broadcasters, by agreeing to ad-

here to the policy, violate the First Amendment; any

FCC enforcement of the policy is likewise constitutionally

prohibited. It certified its judgment in the Writers Guild

case as final and, pursuant to 28 U.S.C. § 1292(b), au-

thorized an interlocutory appeal in the Tandem suit.™*

Following the issuance of the district court’s decision,

the NAB announced that it would not enforce the family

viewing policy during the process of review.™

All defendants appealed from the order of the district

court. In addition to raising the primary jurisdiction

80 423 F. Supp. at 1158, Pet. App. at A-234.

31 423 F. Supp. at 1131-46, Pet. App. at A-173 to A-207.

82 423 F. Supp. at 1131 n.120, Pet. App. at A-174 to A-175

n.120.

88 423 F. Supp. at 1161-62, Pet. App. at A-240 to A-242.

%4 See BROADCASTING, Nov. 15, 1976, at 38.

11

issues, they urged on various grounds that the district

court’s decision be reversed.*

On appeal, the court below vacated the judgment of the

district court on primary jurisdiction grounds.** The

Ninth Circuit found that the district court had failed to

recognize the pervasive and delicate role of the Commis-

sion in broadcast regulation. Drawing extensively on this

Court’s opinion in CBS v. DNC, 412 US. 94, the

court emphasized the Commission’s pivotal role in strik-

ing the balance between the First Amendment interests

of the public and of broadcasters on the one hand, and the

35 Defendants pointed out that broadcaster action generally

has been held not to be state action, and that there was no

showing in this case that the broadcasters had been “coerced”

by the Commission. While the district court had found that

Chairman Wiley’s actions were a cause of the adoption of the

family viewing policy, it recognized that there were many

other causes, including the broadcasters’ own views of their

public interest responsibilities, and public and congressional

pressure. Moreover, the court also found the broadcasters

“freely chose” to adopt that policy. See 423 F. Supp. at 1158,

Pet. App. at A-234.

Defendants also contended that the district court’s decision

was inconsistent with the basic congressional scheme of broad-

cast regulation, which preserves for licensees the right to ex-

ercise editorial judgment. Indeed, defendants argued, the

district court’s searching inquiry into editoria] motivation

and its efforts to determine editorial policies violated the First

Amendment. The court’s state action finding would convert

any editorial response to government concern into a First

Amendment violation and would prevent broadcasters from

exercising their First Amendment right to avoid governmen-

tal action. See generally Brief for Appellants American

Broadcasting Companies, Inc., CBS Inc., National Association

of Broadcasters, Nos. 77-1058, 77-1059, 77-1060, 77-1061, 77-

1103, 77-1756, 77-1897 (9th Cir. filed June 27, 1977).

86 609 F.2d at 363, Pet. App. at A-20.

12

statutory concern that broadcast frequencies be used in

the public interest on the other. Referral of petitioners’

clairas to the Commission would provide an express, con-

sidered decision by the Commission whether Chairman

Wiley’s “jawboning” activities were consistent with its

role in maintaining this balance.*’

At the same time, the court of appeals expressed con-

siderable skepticism concerning the district court’s deci-

sion on the merits as well as its finding that Chairman

Wiley caused the NAB to adopt the family viewing pol-

icy. The Ninth Circuit stated that “[t]he validity of the

district court’s analysis fundamentally depends upon

whether its bedrock principle is correct and whether its

finding of causation is sound. We are not as certain as

the district court was.” *

The court of appeals vacated the judgment of the dis-

trict court and remanded both cases with instructions to

refer the claims involving the FCC to the Commission for

its independent determination. The claims against the

private defendants were to be held in abeyance pending

the outcome of administrative proceedings before the

Commission, review in the court of appeals, and if neces-

sary, review in this Court.®

SUMMARY OF ARGUMENT

This case presents no issues warranting review by this

Court. It does not involve a conflict with any decision of

this Court, a conflict among the circuits, or an important

question of federal law not previously addressed by this

Court. Instead, the decision below represents an appro-

87 609 F.2d at 362-63, Pet. App. at A-17 to A-19.

88 609 F.2d at 361, Pet. App. at A-14. See also 609 F.2d at

862, Pet. App. at A-22 to A-23.

8° 609 F.2d at 366, Pet. App. at A-25.

13

priate application of traditional legal principles to an

unusual factual situation. The correctness of the appli-

cation of those principles to the unique facts here in-

volved obviously is not an issue warranting Supreme

Court review. In any event, the decision below requiring

that the Commission’s views concerning the claims against

the Government be obtained in the first instance was

clearly correct.

Moreover, review by this Court would be premature.

The Ninth Circuit’s judgment is nonfinal, and petitioners

have failed to demonstrate circumstances that warrant an

exception to the well established policy against interlocu-

tory review. The NAB suspended enforcement of the

family viewing policy pending the outcome of this litiga-

tion. Because petitioners are therefore subject to no on-

going harm, their claim of urgent need for review is not

well founded.

ARGUMENT

I, PETITIONERS HAVE FAILED TO SHOW THAT

THE NINTH CIRCUIT’S DECISION CONFLICTS

WITH DECISIONS OF THIS COURT OR OF ANY

OTHER COURT OF APPEALS, PRESENTS IM-

PORTANT ISSUES WARRANTING REVIEW BY

THIS COURT, OR IS ERRONEOUS.

While petitioners cite numerous cases decided by this

Court, they point to none with which the Ninth Circuit’s

decision conflicts Nor do they show that the decision

below conflicts with any decision of another court of ap-

peals,*® or even that it presents important questions of

* Petitioners do cite one lower court case, Gemini Enter-

prises, Inc. v. WFMY Television Corp., 470 F. Supp. 559

(M.D.N.C. 1979), as a conflicting decision. Petitioners fail

to note, however, that Gemini placed considerable reliance

upon the district court opinion in this case before it was

vacated. See id. at 571.

14

federal law. Essentially, petitioners urge the Court to

grant their petition on the grounds that the decision of

the court below is incorrect. To the contrary, application

of the primary jurisdiction doctrine to the facts of this

case is appropriate under established law.

- This Court has held that when a federal court is called

on to review matters subject to the regulation of an ad-

ministrative agency, the doctrine of primary jurisdiction

requires the court to defer consideration of the case until

the agency has had an opportunity to act.“ The doctrine

rests on considerations of judicial economy and adminis-

trative expertise: The “limited functions of review...

are more rationally exercised by preliminary resort for

ascertaining and interpreting the circumstances underly-

ing legal issues to agencies that are better equipped than

courts by specialization, by insight gained through ex-

perience, and by more flexible procedure.” @

There is no question that the doctrine of primary

jurisdiction applies to the Federal Communications Com-

mission.** As the agency established by Congress to ad-

4i See, e.g., Ricci v. Chicago Mercantile Exch., 409 U.S. 289,

806 (19738) ; United States v. Western Pac. R.R., 352 U.S. 59,

63 (1956); Far East Conference v. United States, 342 U.S.

570, 574-75 (1952).

42 Far East Conference v. United States, 342 U.S. at 574-75.

#8 The Commission’s expert role has been recognized fre-

quently by the lower federal courts which have deferred to

the agency in appropriate cases. See, e.g., Ambassador, Inc.

v. United States, 325 U.S. 317, 324 (1945) ; MCI Communica-

tions Corp. Vv. AT&T, 496 F.2d 214, 219-20 (3d Cir. 1974) ;

Maguire v. Post Newsweek Stations, 24 Rad. Reg. (P&F)2d

2094, 2095 (D.C. Cir. 1972) ; Carter v. AT&T, 365 F.2d 486

(5th Cir. 1966), cert. denied, 385 U.S. 1008 (1967); Daly v.

CBS, 309 F.2d 88, 85 (7th Cir. 1962); Massachusetts Uni-

versalist Convention Vv. Hildredth & Rogers Co., 188 F.2d 497

15

minister a “unified and comprehensive regulatory scheme

for the [broadcast] industry,” ** the Commission, since

its establishment, has wrestled with and determined the

statutory and constitutional issues involved in broad-

casting.

It is clear that questions of communications policy and

First Amendment concerns are at the heart of this case.

Commission policies dealing with, for example, violent

and sexually-oriented television programming, the rela-

tionship of the NAB Code to the regulatory scheme of

broadcasting, the Commission’s view of the appropriate-

ness of the NAB family viewing policy, constitutional re-

straints on Commission action, and the applicability of the

First Amendment in the circumstances presented all are

involved here. Even a cursory reading of the district

court’s opinion shows that the court considered and de-

cided issues of regulatory policy as well as constitutional

law. Indeed, the district court discussed at length its in-

terpretation of the Communications Act and articulation

of regulatory policy,“ and purported to rely on various

Commission policies in deciding the constitutional issues.**

Application of the doctrine of primary jurisdiction in

this case not only enables the Commission to consider im-

portant regulatory and constitutional issues, but also rec-

ognizes the congressionally mandated scheme for review

(1st Cir. 1950); Ackerman v. CBS, 301 F. Supp. 628 (S.D.

N.Y. 1969) ; Gordon v. NBC, 287 F. Supp. 452, 455 (S.D.N.Y.

1968) ; The Polite Society, Inc. v. WLS, Inc., No. 74-Civ.-3777

(N.D. Ill. 1975); McCarthy v. Carter, No. 76-1697 (D.D.C.

Sept. 17, 1976), aff’d, No. 76-1865 (D.C. Cir. Sept. 22, 1976).

44 FCC v. Pottsville Broadcasting Co., 309 U.S. 184, 187

(1940).

45 See, e.g., 428 F. Supp. at 1128-35, 1143-46, Pet. App. at

A-169 to A-182, A-200 to A-207.

46 423 F. Supp. at 1143, Pet. App. at A-200 to A-201.

16

of Commission action. The Communications Act requires

that challenges to Commission policies or actions be

brought first to the Commission and thereafter, on review,

to a United States court of appeals.*7 Congress chose not

to involve the many federal district courts in the regula-

tion of broadcasting.** That role is committed exclusively

to the Commission and to the courts of appeals, reflecting

the view that there should be only one initial forum and

one set of requirements governing broadcasters.

In summary, many of the issues raised in this case con-

cern the regulation of broadcasting in the public interest

and are inappropriate for initial resolution by any court.

In establishing the Commission to administer “a unified

and comprehensive regulatory system for the [broadcast]

industry,” FCC v. Pottsville Broadcasting Co., 309 U.S.

at 137, it was the “intention of Congress to occupy the

television broadcasting field in its entirety,” Allen B.

Dumont Laboratories, Inc. v. Carroll, 184 F.2d 158, 155

(3d Cir. 1950), cert. denied, 340 U.S. 929 (1951), and

to preclude de novo judicial consideration of the kinds

of questions within the ambit of the FCC’s jurisdiction.

Petitioners do not dispute that the doctrine of primary

jurisdiction applies to the Commission.*® Indeed, they

47See 47 U.S.C. § 405; 47 U.S.C. §402(a); 28 U.S.C.

§ 2342 (1).

48 See, e.g., City of Trenton v. FCC, 441 F.2d 1829, 1333

(3d Cir. 1971) ; McIntire v. Wm. Penn Broadcasting Co., 151

F.2d 597, 600 (38d Cir. 1945), cert. denied, 327 U.S. 779

(1946).

49 Pet. at 11. To the extent petitioners contend that the

Commission is without authority to regulate in this area and

primary jurisdicion therefore does not require that it have an

opportunity to express its views, id. at 18, they misappre-

hend the doctrine. A lack of jurisdictional authority to

promulgate rules or grant relief does not diminish the value

17

acknowledge that “had this case been brought against

the networks alone, invocation of the doctrine might have

been proper.” Petitioners argue, however, that on the

facts of this case the court of appeals erred in applying

the doctrine. Their arguments in this respect are numer-

ous, but none provides a ground for reversal.

First, petitioners argue that this case involves Com-

mission “wrongdoing” and that invocation of primary

jurisdiction is inappropriate when an agency would have

to examine the propriety of its own conduct.” Petition-

ers’ assertion that administrative agencies are never called

on to review their own actions is incorrect. Agencies

often are required to judge the legality of prior actions *

of the Commission’s views on the issues involved, and the

expertise and insight of the Commission will substantially

benefit a reviewing court in this sensitive area. See, e.g.,

Thompson Vv. Texas Mexican Ry., 328 U.S. 184 (1946); 3

K. Davis, ADMINISTRATIVE LAW § 19.07, at 39 (1958). More-

over, contrary to petitioners’ assertions, the Commission has

been held to have a role in the regulation of “indecent” pro-

gramming. See FCC v. Pacifica Foundation, 438 U.S. 726

(1978).

Petitioners’ argument that primary jurisdiction is not ap-

plicable in cases requiring policy formulation, but only when

technical factfinding must be allocated between courts and

agencies, is similarly incorrect. Primary jurisdiction affords

_an agency the opportunity to articulate regulatory policy and

state its views concerning specialized issues with which it

constantly deals. E.g., Atchison, T. & S. F. Ry. v. Wichita Bd.

of Trade, 412 U.S. 800, 820-21 (1973) ; United States v. West-

ern Pac. R.R., 352 U.S. at 65.

5° Pet. at 11.

51 Jd, at 10-11.

52 See, e.g., Action for Children’s Television v. FCC, 564

F.2d at 468; WKAT, Inc. v. FCC, 296 F.2d 875 (D.C. Cir.),

cert. denied, 368 U.S. 841 (1961); WORZ, Inc. v. FCC, 268

18

and constantly “revisit” their decisions when determin-

ing whether to grant petitions for reconsideration. In-

deed, Section 405 of the Communications Act, 47 U.S.C.

§ 405, precludes judicial consideration of agency action—

wrongful or otherwise—where, as here, the issue has not

been raised before the Commission and the parties seek-

ing judicial review did not appear before the agency.

An agency’s expertise concerning its past action is

obviously substantial, and judicial review is available if

the agency incorrectly rejects allegations of wrongdoing.

Petitioners seek to dismiss the requirement of exhaustion

of remedies on the ground that it would be futile.” The

short answer is that, contrary to the intent of the Com-

munications Act, petitioners never gave the agency an

opportunity to consider their claims, and the argument

that exhaustion would have been futile is pure speculation.

Second, petitioners urge that the First Amendment im-

plications of the regulatory policies involved in this case

render application of primary jurisdiction inappropriate.

This contention overlooks the Commission’s frequent con-

sideration of constitutional questions concerning the reg-

ulation of broadcasting.“ Moreover, petitioners’ argu-

F.2d 889 (D.C. Cir. 1959), cert. denied, 876 U.S. 914 (1964) ;

Massachusetts Bay Telecasters, Inc. v. FCC, 261 F.2d 55, 66-

67 (D.C. Cir. 1958), cert. denied, 366 U.S. 918 (1961).

58 Pet. at 13-15.

%4 See, e.g., FCC v. Pacifica Foundation, 488 U.S. 726; FCC

v. National Citizens Committee for Broadcasting, 486 U.S. 775

(1978) ; CBS v. DNC, 412 U.S. 94; Red Lion Broadcasting Co.

v. FCC, 395 U.S. 367 (1969) ; NBC v. United States, 319 U.S.

190 (1943) ; Home Box Office, Inc. v. FCC, 867 F.2d 9 (D.C.

Cir.) (per curiam), cert. denied, 484 U.S. 829 (1977); Na-

tional Ass’n of Independent Television Producers & Distribu-

tors v. FCC, 516 F.2d 526 (2d Cir. 1975) ; Yale Broadcasting

19

ment is irreconcilable with this Court’s opinion in CBS

v. DNC.™ In that case, the Court ruled that where claims

of unconstitutional action are presented, the Commission

has special expertise because the constitutional and statu-

tory questions in broadcasting are inevitably intertwined.”

In evaluating First Amendment claims, the Court con-

cluded, the judgment and experience of the Commission

are entitled to “great weight.” *’ Thus, reference of such

issues to the Commission for an initial determination is

not merely appropriate, but essential.

Third, petitioners argue that referral to the agency

will impede judicial review of alleged First Amendment

violations, contrary to this Court’s doctrine that such

restraints demand prompt review.*® As we discuss,"

Co. v. FCC, 478 F.2d 594 (D.C. Cir.), cert. denied, 414 U.S.

914 (1978) ; Mark v. FCC, 468 F.2d 266 (1st Cir. 1972) ; Mt.

Mansfield Television, Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971) ;

National Ass’n of Theatre Owners Vv. FCC, 420 F.2d 194 (D.C.

Cir. 1969), cert. denied, 8397 U.S. 922 (1970). See also Action

for Children’s Television v. FCC, 564 F.2d 458; Children’s

Television Report and Policy Statement, 50 F.C.C.2d 1.

55 412 US. 94.

58 Td. at 102.

57 Td.

58 Petitioners also contend that the limited discovery privi-

leges they will be afforded if forced to proceed before the

Commission will place an intolerable burden on the vindi-

cation of their asserted First Amendment rights. Pet. at

21-22. Commission rules, however, provide for ample discov-

ery whenever relevant issues of fact arise which require reso-

lution in a hearing. E.g., 47 C.F.R. §§ 1.815-.821 (deposi-

tions) ; 47 C.F.R. § 1.828 (interrogatories) ; 47 C.F.R. § 1.825

(discovery and production of documents and things for in-

spection, copying, or photographing) ; 47 C.F.R. §§ 1.831-.840

(subpoenas). In any event, petitioners in this case have

already had almost unlimited discovery in the district court.

59 See text at 18 supra, 28 infra.

20

there is no continuing constitutional violation even under

petitioners’ theory. The First Amendment cases on which

petitioners rely © are therefore inapposite.

Fourth, petitioners claim that, even if the issues in this

case were once suitable for Commission consideration, de-

ferral to the agency at this stage of the proceeding would

be unnecessary." Petitioners argue that the Commission’s

views on these issues have already been made known in

the course of this proceeding, making further agency con-

sideration superfluous. In fact, as the court of appeals

correctly found, petitioners never sought the views of the

Commission.” At most, only the views of one Commis-

sioner—Chairman Wiley, who is no longer a member of

the Commission “—were explicitly and formally stated.

* Pet. at 18.

$1 Jd. at 13-14.

62 Petitioners’ reliance on cases such as United States Vv.

Philadelphia Nat’l Bank, 874 U.S. 321, 353 (1963); United

States v. Western Pac. R.R., 352 U.S. at 69; and Rosado v.

Wyman, 397 U.S. 397, 406-07 (1970), is therefore misplaced.

Pet. at 18-14. Philadelphia Nat'l Bank and Western Pac. R.R.

refer to instances where the agency involved had the oppor-

tunity to consider formally the issues raised and had taken

official action. Here, however, the FCC has not yet been

presented with petitioners’ claims. In Rosado, the Court held

primary jurisdiction inapplicable because the agency “ha[d]

no procedures whereby [the petitioners could] trigger and

participate in the Department’s review of state welfare pro-

grams.” 397 U.S. at 406. Petitioners in this case had re-

course to several procedures that could have prompted initia!

Commission consideration. See 5 U.S.C. § 554(e) ; 47 U.S.C.

§ 405; 47 C.F.R. §§ 1.2, 1.401, 1.41.

63 Since the actions complained of occurred, the composition

of the Commission has changed. Charles Ferris replaced

Richard Wiley as a Commissioner and as Chairman in 1977.

Of the Commissioners named as defendants in these cases,

21

And statements made by Department of Justice lawyers

representing the Commission during the course of the liti-

gation below cannot be construed as Commission action.“

It is well established that the Commission speaks only

through formal actions it takes as an agency.™ Just as

“courts may not accept appellate counsel’s post hoc ra-

tionalizations for agency action,” ® the positions taken in

only Commissioners Lee, Quello, and Washburn remain mem-

bers of the FCC.

* Burlington Truck Lines v. United States, 371 U.S. 156,

169 (1962). See CBS v. FCC, 454 F.2d 1018, 1033-34 (D.C.

Cir. 1971) (applying principle to statements made on behalf

of the Federal Communications Commission by counsel for

the agency).

* Petitioners rely on language in Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 417 (1971), to

support the proposition that the informal] and independent

actions of Chairman Wiley constitute judicially reviewable

Commission action. Pet. at 25. This case is inapposite. In

Overton Park, the Secretary of Transportation was confronted

expressly with a re~nest for federal funds to construct a

highway; he formally considered that request; and he issued

an official administrative order. The Court held that because

judicial review could proceed on the basis of the administra-

tive record before the agency, a remand requiring the Secre-

tary to make formal findings was unnecessary. Here, peti-

tioners never brought their claims to the FCC; the agency

never considered those claims nor issued any kind of official

decision. And there is no “administrative record” on which

to base judicial review. Moreover, the Court in Overton Park

expressly disapproved the practice of using materials pre

pared for litigation as a basis of judicial review. 401 U.S. at

419. Petitioners attempt to define the Commission’s position

through reference to “papers” filed with the district court,

Pet. at 15, must therefore fail.

% Burlington Truck Lines v. United States, 371 U.S. at 168.

See, e.g., SEC v. Chenery Corp., 382 U.S. 194, 196 (1947);

SEC v. Chenery Corp., 318 U.S. 80, 95 (19438).

22

an advocate’s brief are not binding agency opinions. Thus,

the Ninth Circuit properly concluded, “[i]t is 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.” ”

Finally, petitioners contend that application of the doc-

trine of primary jurisdiction somehow conflicts with the

APA.® They point to Section 10(a) of the APA,” which

entitles “a person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency ac-

tion” to judicial review. But this section merely creates

a remedy when no statutory provision provides a specific

avenue of judicial review. See Abbott Laboratories v.

Gardner, 387 U.S. 186, 140-41 (1967). Section 10(a) is

therefore inapplicable where, as here, the Communica-

tions Act expressly confers on the courts of appeals

jurisdiction to review Commission actions. 47 U.S.C.

§ 402 (a).

If. SINCE THE DECISION OF THE COURT OF AP-

PEALS IS NONFINAL, THE CASE IS NOT RIPE

FOR REVIEW BY THIS COURT.

This Court traditionally has refused to review inter-

locutory judgments of federal courts.” The pzuhibition,

$" 609 F.2d at 364, Pet. App. at A-20.

$8 Pet. at 23-26.

§ U.S.C. § 702.

7 See, e.g., Brotherhood of Locomotive Firemen v. Bangor

& Aroostook R.R., 389 U.S. 827, 828 (1967) (“because the

Court of Appeals remanded the case, it is not yet ripe for

review by this Court’); Youngstown Sheet & Tube Co. v.

Sawyer, 348 U.S. 579, 584-85 (1952); Cobbledick v. United

States, 309 U.S. 328, 824-25 (1940); Hamilton-Brown Shoe

Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916) (lack of

finality “of itself alone furnished sufficient ground for the

23

although not jurisdictional, conserves limited judicial re-

sources and avoids piecemeal litigation. Interlocutory re-

view has been held proper only in limited circumstances

involving exceptional facts.”

The Ninth Circuit’s decision in this case is clearly in-

terlocutory, and many complex issues remain to be de-

cided. If petitioners disagree with the Commission’s

action after the referral, they may seek review pursuant

to Section 402(a) of the Communications Act, 47 U.S.C.

§ 402(a). Action taken during the multiple administra-

tive and judicial stages still remaining in this case not

only may alter the content of any review by this Court

but also may obviate entirely any claim for such review.”

Petitioners nevertheless urge this Court to make an

exception to the policy against interlocutory review. They

argue that referral to the Commission will delay judicial

review of restraints on broadcast speech which “will be

allowed to continue unabated, stifling exercise of First

Amendment rights on an ongoing basis.” ”* Even on its

own terms the argument fails because NAB enforcement

of the family viewing policy was suspended after issuance

of the district court’s opinion and has not been reinstated.

denial’) ; R. Stern & E. Gressman, SUPREME CouRT PRACTICE

§ 4.19 (5th ed. 1978).

™ See Gillespie v. United States Steel Corp., 379 U.S. 148,

153 (1964) ; Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682, 685 n.3 (1949) ; Land v. Dollar, 330 U.S. 781,

734 n.2 (1947) ; United States v. General Motors Corp., 828

U.S. 378, 377 (1945) ; American Construction Co. v. Jackson-

ville T. & K. W. Ry., 148 U.S. 872, 384 (1898).

72 See American Construction Co. v. Jacksonville T. & K. W.

Ry., 148 U.S. at 384 (“many orders made in the progress of a

suit become quite unimportant by reason of the final result, or

of intervening matters”).

8 Pet. at 20.

24

Significantly, petitioners failed at any time to seek a

temporary restraining order against the asserted re-

straint, and although they initially scight a preliminary

injunction, they chose not to pursue that remedy. Finally,

the delay in resolution on the merits which has occurred

in this case is the result of petitioners’ decision not to

seek relief from the Federal Communications Commission

in the first instance.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

DANIEL H. MARGOLIS

BARBARA C. STERGIS

BERGSON, BORKLAND, MARGOLIS

& ADLER

11 Dupont Circle, N.W.

Washington, D.C. 20036

Counsel for Respondent American

Broadcasting Companies, Inc.

J. ROGER WOLLENBERG

TIMOTHY B. Dyk

CAMERON F. KERRY

ANDREA TIMKO SALLET

Of Counsel: WILMER & PICKERING

1666 K Street, N.W.

gs tate yan Washington, D.C. 20006

New York, New York 10019 Counsel for Respondent CBS Inc.

ERWIN G. KRASNOW

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for Respondent National

Association of Broadcasters

IRVING R. SEGAL

EUGENE A. SPECTOR

SCHNADER, HARRISON, SEGAL

& LEwis

CorYDON B. DUNHAM 1719 Packard Building

STEPHEN F.. STANDER Philadelphia, Pennsylvania 19102

30 Rockefeller Plaza Counsel for Respondent National

New York, New York 10020 Broadcasting Company, Inc.

July 16, 1980