Petition — Cosmopolitan Broadcasting Corp. v. Federal Communications Commission

Office - Supreme Court, U.S.

FILED

81..-6 03 SEP os 1981

meee

icc L. STEVAS

IN THE HEXANG OR

SUPREME COURT OF THE UNITED STATES” a

OCTOBER TERM, 1981

BULGARIAN AMERICAN LEAGUE, COLUMBIAN LAWYERS

ASSOCIATION, CONGRESS OF PORTUGESE PEOPLE, FED-

ERATION OF LITHUANIAN WOMEN’S CLuBS, THE JapP-

ANESE AMERICAN ASSOCIATION OF NeW YORK, INC.,

YUGOSLAV CONSOLIDATED BENEVOLENT ASSOCIATION,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

JACK CHADRJIAN

250 West 57th Street

New York, New York 10017

(212) Circle 5-3252

FREDERICK W. Forp, Counsel of Record,

AND MARY C. ALBERT

Of Counsel: LOVETT, FORD, HENNESSEY,

Lovett, ForD, HENNESSEY, STAMBLER & SIEBERT, P.C.

STAMBLER & SIEBERT, P.C. 1901 L Street, N.W., Suite 200

1901 L Street, N.W., Suite 200 Washington, D.C. 20036

Washington, D.C. 20036 (202) 293-7400

Attorneys for Bulgarian

September 28, 1981 Amenican League, et al.

Washington, .C. + THIEL PRESS + (202) 638.452!

(t)

QUESTIONS PRESENTED

Whether the Federal Communications Commission

may legally nullify the statutorily protected right of

members of the listening public to inform the Commis-

sion that they are aggrieved and adversely affected by a

decision denying a broadcast license renewal?

Whether the Federal Communications Commission

acted arbitrarily and capriciously in denying a broadcast

license renewal on the basis of a stale record?

(i)

PARTIES TO THE PROCEEDING

Following is a list of all parties who appeared before

the United States Court of Appeals for the District of

Columbia Circuit in Case Nos. 80-1902, 80-1903,

80-1967, and 80-1968:

Cosmopolitan Broadcasting Corporation, Appellant

Federal Communications Commission, Appellee

Bulgarian American League, Appellant

Columbian Lawyers Association, Appellant

Congress of Portugese People, Appellant

Federation of Lithuanian Women’s Clubs, Appellant

The Japanese American Association of New York,

Inc., Appellant

Yugoslav Consolidated Benevolent Association,

Appellant

Unique Radio Group, Inc., Appellant

WHCN, Inc. and WBLI, Inc., Intervenors in Support

of Appellee Federal Communications Commission

(iii)

TABLE OF CONTENTS Page

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PARTIES TO THE PROCEEDING .................- it

ed tauie ws 2

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STATUTORY PROVISIONS AND

De es i uns ve deéawe's 3

SUATUNGENE OF THE GAGE... . 2.20 ccc cccsccccss 3

REASONS FOR GRANTING THE WRIT ............. 6

I. The Commission Has Denied The Foreign

Language Groups Their Right To Administrative

Due Process Guaranteed By Section 405 Of

The Communications Act And Section 1.106(b)

Of The Commission’s Own Rules ..........+5+55% 6

Il. The Denial Of WHBI’s Renewal Of License On

The Basis Of A Stale Record Is Arbitrary And

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TABLE OF AUTHORITIES

Cases:

Black River Valley v. McNinch, 69 U.S. App. D.C. 311,

101 F.2d 235 (1938), cert. denied, 307 U.S. 623

PPT errrrrererrererererLeLerer i 8

Citizens Committee of Atlanta v. FCC, 141 U.S. App.

D.C. 109, 486 F.2d 268 (1970)... 1... ee eee ene cees 8

Citizens Committee to Save WEFM v. FCC, 165 U.S.

App. D.C. 185, 506 F.2d 246 (1947)... ......22550ee 7

Cosmopolitan Broadcasting Corp. v. FCC, 189 U.S. App.

D.C. 139, 581 F.2d 917 (1978). .........22006 4,5,10

Easton Publishing Company v. FCC, 87 U.S. App. D.C.

$44, 185 F.2d 987 (1950) .. 0... cece reer crcccvves 11

(iv)

Cases, continued: Page

Federal Communications Commission v. Allentown

Broadcasting Co., 249 U.S. 358 (1955)... 2.2... ewes 10

Federal Communications Commission v. Pottsville Broad-

casting Co., 309 U.S. 134 (1940)... 2... eee ee eee eee 11

Fly v, Heitmeyer, 309 U.S. 146 (1940)..........650006- 11

Ford Motor Co. v. NLRB, 305 U.S. 364 (1938) ........... 11

Joseph v. Federal Communications Commission, 131

U.S. App. D.C. 207, 404 F.2d 207 (1968)............. 7

Office of Communications of United Church of Christ

v. Federal Communications Commission, 123 U.S.

App. D.C. 328, 359 F.2d 994 (1966) .........00500es ~

Southland Industries v. Federal Communications Com-

mission, 69 U.S. App. D.C. 82, 99 F.2d 117 (1938) ...... ~

Administrative Decisions and Reports:

Charles W. Jobbins, 68 F.C.C.2d 46, 42 R.R.2d 1580

GRUUED cccccecccccecereeseeeeseeeceneeceees 10

Notice of Proposed Inquiry in the Matter of Deregula-

tion of Radio, 73 F.C.C.2d 457, 46 R.R.2d 237

EEUU ce wcercececerestseeseveeseeseescoces 12

Policy Statement on Time Brokerage Arrangemenis, 82

F.C.C.2d 107, 48 R.R.2d 763 (1980)............. 13,14

Report and Order in the Matter of Deregulation of Radio,

84 F.C.C.2d 968, 49 R.R.2d 1 (1981) ............ 12,13

Statutes:

SPU, RUEEED cecrcesrccccecceceoceceseseoss 3

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Rules:

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

BULGARIAN AMERICAN LEAGUE, COLUMBIAN LAWYERS

ASSOCIATION, CONGRESS OF PORTUGESE PEOPLE, FED-

ERATION OF LITHUANIAN WOMEN’S CLUBS, THE JAP-

ANESE AMERICAN ASSOCIATION OF NEw YorK, INC.,

YUGOSLAV CONSOLIDATED BENEVOLENT ASSOCIATION,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

Petitioners, Bulgarian American League, Columbian

Lawyers Association, Congress of Portugese People,

Federation of Lithuanian Women’s Clubs, The Japanese

American Association of New York, Inc., and Yugo-

slav Consolidated Benevolent Association (hereinafter

“Foreign Language Groups’’) request that a writ of

certiorari issue to reverse the judgment of the United

l

2

States Court of Appeals for the District of Columbia

Circuit entered in Case Nos. 80-1902, 80-1903, 80-1967

and 80-1968 on June 29, 1981.

OPINIONS BELOW |

The original opinion of the Court of Appeals re-

manding the Federal Communications Commission’s

(“Commission”) denial of the renewal of Cosmopolitan

Broadcasting Corporation’s radio broadcast license was

rendered on May 31, 1978. Cosmopolitan Broadcasting

Corporation v. FCC, 189 U.S. App. D.C. 139, 581 F.2d

917 (1978), Cosmopolitan Appendix B. The judgment

of the Court of Appeals affirming the Commission’s

Supplemental Decision issued upon remand was entered

on June 29, 1981 without an opinion. Cosmopolitan

Broadcasting Corporation v. FCC, Nos. 80-1902 e¢ al.

(D.C. Cir., filed June 29, 1981), Cosmopolitan Appen-

dix A.

The Initial Decision of the Administrative Law Judge,

FCC 74D-41 (1974), is neither officially nor unofficially

reported, Cosmopolitan Appendix C. The Commission

Decision affirming the Administrative Law Judge is

reported at 59 F.C.C.2d 558, 37 R.R.2d 569 (1976),

Cosmopolitan Appendix D. The Memorandum Opinion

and Order of the Commission denying reconsideration

of the 1976 Decision is reported at 61 F.C.C.2d 257,

38 R.R.2d 368 (1976), Cosmopolitan Appendix E.

The Commission’s Memorandum Opinion and Order

denying Cosmopolitan’s Petition for Distress Sale Relief

is reported unofficially at 46 R.R.2d 1255 (1980). The

Commission’s Supplemental Decision issued upon remand

from the Court of Appeals is reported at 75 F.C.C.2d

423, 46 R.R.2d 1285 (1980), Cosmopolitan Appendix F.

The Commission’s Memorandum Opinion and Order

3

denying reconsideration of the Supplemental Decision

and the denial of the Petition for Distress Sale Relief is

reported at 79 F.C.C.2d 16, 47 R.R.2d 1325 (1980),

Cosmopolitan Appendix G.

JURISDICTION

The judgment of the Court of Appeals was filed and

entered on June 29, 1981. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATIONS

Section 405 of the Communications Act of 1934, as

amended, 47 U.S.C. § 405 and Section 1.106(b)(1) of

the Rules and Regulations of the Federal Communica-

tions Commission, 47 C.F.R. § 1.106(b)(1) are set forth

in full at Appendix 1.

STATEMENT OF THE CASE

The Foreign Language Groups are organizations and

associations which represent various foreign language and

ethnic minorities served by Station WHBI who will be

most affected by the denial of WHBI’s license renewal,

and the station’s listeners generally. The Petitioners are

devoted to giving positive direction to their ethnic

communities to the end that they are and shall be con-

structive elements of society, and all are interrelated with

other groups of similar ethnic origin affecting cultural,

civic, political, religious, benevolent, artistic, athletic

and other aspects of individual and societal behavior.

A broadcast station must renew its license every three

years. Cosmopolitan Broadcasting Corporation, licensee

of Radio Station WHBI, Newark, New Jersey, applied

4

for renewal of its license on February 26, 1969. At the

time the renewal application was filed, WHBI devoted

114 hours per week (68% of its air time) to ethnic

programming broadcast in 18 foreign languages.' By

1972 WHBI was broadcasting ethnic programming in

English and 25 foreign languages directed to at least 28

distinct ethnic groups.?

In 1972 the Commission designated Cosmopolitan’s

renewal application for hearing. On July 25, 1974, the

Administrative Law Judge (“ALJ’’) released his Initial

Decision, denying Cosmopolitan’s renewal application.

The Commission affirmed the AL]J’s decision? and

denied Cosmopolitan’s petition for reconsideration.*

Cosmopolitan appealed the Commission’s decision to the

Court of Appeals for the District of Columbia Circuit.

Petitioner Columbian Lawyers Association also filed an

appeal. Petitioners Bulgarian American League, Yugoslav

Benevolent Association, Congress of Portugese People,

The Japanese American Association of New York and

1In 1969 WHBI broadcast in the following languages: Spanish

(45.5 hours); Italian (35.5 hours); Greek (10 hours); Hungarian

(4 hours); Arabic (2.5 hours); Polish (2.75 hours); Brazilian (2.05

hours); Portugese (2 hours); Lithuanian (1 hour); Slovakian (55

minutes); Croatian (0.5 hours); Albanian (0.5 hours); Ukranian

(0.5 hours); Roumanian (0.5 hours); Armenian (0.5 hours);

Yugoslavian (0.5 hours); Bulgarian (0.5 hours); Norwegian (0.5

hours). Cosmopolitan Broadcasting v. FCC, 189 U.S. App. D.C.

at 141, 581 F.2d at 919.

2In 1972 WHBI was also offering programs in Korean, Mace-

donian, Urdu, Hindi, Bengali, Japanese and Russian. Cosmopoli-

tan Broadcasting v. FCC, 189 U.S. App. D.C. at 141, 581 F.2d

at 919, WHBI Exhibit 6.

3Cosmopolitan Broadcasting Corp., 59 F.C.C.2d 558, 37

R.R.2d 569 (1976).

Cosmopolitan Broadcasting Corp., 61 F.C.C.2d 257, 38

R.R.2d 368 (1976).

5

the Federation of Lithuanian Women’s Clubs intervened

in the appeal on behalf of Cosmopolitan. The Foreign

Language Groups argued that the Commissic™ erred in

failing to give dve consideratign to the importance of

WHBI’s programr® ag to its ethnic audiences and that

denial of WHBI’s license would adversely affect the

groups which they represented by depriving them of

an important source of programming in their native

languages.

The Court of Appeals remanded the case to the Com-

mission with instructions to determine whether Cosmo-

politan’s programming was sufficiently meritorious to

mitigate the licensee’s transgressions which resulted in

the denial of its license renewal. The Court reminded

the Commission that the ultimate question to be resolved

was whether a renewal of Cosmopolitan’s license would

serve the public interest, convenience and necessity.

Accordingly, .¢ meritorious programming determination

had to inch e a consideration of whether denying

Cosmopolitan’s renewal application would silence a

unique outlet serving a specialized audience that would

feel its loss.5

On December 19, 1979, the Commission adopted its

Supplemental Decision® reaffirming its conclusion that

renewal of WHBI’s license would not be in the public

interest. ~The Commission took this action without

holding further hearings or taking further evidence on

the meritorious programming issue and without soliciting

the views of the Foreign Language Groups who had

SCosmopolitan Broadcasting Corp. v. FCC, 189 U.S. App. D.C.

138, 581 F.2d 917 (1978).

®Cosmopolitan Broadcasting Corp., 75 F.C.C.2d 423, 46

R.R.2d 1285 (1980).

6

participated in the earlier court appeal regarding the

meaning of the Court’s mandate or the steps which the

Commission should take to comply with the mane .ie.

The Foreign Language Groups petitioned for reconsidera-

tion, urging the Commission to grant WHBI’s renewal or

to hold a new hearing so that they might proffer evidence

on the value of WHBI’s ethnic broadcasting to the

audience being served. The Commission dismissed

the petition for reconsideration as an “‘unauthorized

pleading”’ because the Foreign Language Groups had “‘not

requested leave to intervene.’ The Court of Appeals

affirmed the Commission’s Decision without an opinion.

REASONS FOR GRANTING THE WRIT

THE COMMISSION HAS DENIED THE FOREIGN

LANGUAGE GROUPS THEIR RIGHT TO ADMIN-

ISTRATIVE DUE PROCESS GUARANTEED BY

SECTION 405 OF THE COMMUNICATIONS ACT

OF 1934, AS AMENDED, AND SECTION 1.106(b)

OF THE COMMISSION’S OWN RULES.

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 Commis-

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

aggrieved or whose interests are adversely affected

thereby, may petition for rehearing . . . to the

7Cosmopolitan Broadcasting Corp., 79 F.C.C.2d at 20 and 23,

47 R.R.2d at 1328 and 1330 (1980).

8Cosmopolitan Broadcasting Corp. v. FCC, Nos. 80-1902 et al.

(D.C. Cir., filed June 29, 1981).

7

authority making c° taking the order, decision,

report or action. [Emphasis supplied.]

Similarly, Section 1.106(b)(1) of the Commission’s

Rules, 47 C.F.R. § 1.106(b)(1) provides that:

[AJny party to the proceeding, or any other person

whose interests are adversely affected by any action

taken by the Commission . . . may file a petition

requesting reconsideration of the action taken.

[Emphasis supplied.]

As noted earlier, the Commission dismissed the Foreign

Language Groups’ petition for reconsideration as an

unauthorized pleading. The Foreign Language Groups

are representative of the specialized audience in the New

York-New Jersey area served by WHBI’s unique ethnic

programming format. The denial of WHBI’s renewal will

silence this unique outlet and the specialized audience

will feel its loss severely.?

As representative members of WHBI’s listening audi-

ence, the Foreign Language Groups are entitled to

consideration before the Commission.'® There are more

than two million ethnics in WHBI’s service area. It

cannot be disputed that they will be aggrieved by the

loss of WHBI’s broadcasts in their native languages.

Moreover, the interests which will be adversely affected

by the silencing of such a unique outlet are not merely

private economic interests, but the interests of the

listening public in a diversity of broadcast entertainment

formats. “It is surely in the public interest, as that was

conceived by a Congress representative of all the people,

%Citizens Committee to Save WEFM v. FCC, 165 U.S. App.

D.C. 185, 506 F.2d 246 (1974).

10 Joseph v. FCC, 131 U.S. App. D.C. 207, 404 F.2d 207 (1968).

for all major aspects of contemporary culture to be

accommodated by the commonly owned resources

wherever that is technically and economically feasible.”

The Commission ostensibly dismissed the Foreign

Language Groups’ petition for reconsideration because

they had not sought leave to intervene. Yet, there is no

requirement either in the statute or in the Commission’s

Rules that a person seek leave to intervene prior to filing

a petition for reconsideration. To the contrary, had the

Foreign Language Groups intervened before the Commis-

sion, they would have acquired party status.'? Section

405 of the Statute and Section 1.106(b) of the Commis-

sion’s Rules, however, unquestionably confer a right on

both parties and aggrieved nonparties to consideration

and determination of a petition for reconsideration. The

Commission was absolutely without power to refuse to

entertain the petition submitted by the Foreign Language

Groups.!4

The Commission is charged by Congress to grant

those broadcast applications which will serve the public

interest, convenience and necessity.'* in Office of Com-

munications of the United Church of Christ v. FCC, 123

U.S. App. D.C. 328, 359 F.2d 994 (1966), the Court

maintained that the fact that the Commission itself is

charged by Congress to protect the public interest is no

Citizens Committee of Atlanta v. FCC, 141 U.S. App. D.C.

109, 115, 436 F.2d 263, 269 (1970).

1247 US.C. § 309(e).

13Southland Industries v. FCC, 69 U.S. App. D.C. 82, 99 F.2d

117 (1938); Black River Valley v. McNinch, 69 U.S. App. D.C.

311, 101 F.2d 235 (1938), cert. denied, 307 U.S. 623 (1939).

1447 US.C. § 309.

9

reason to preclude the listening public from assisting in

that task. Furthermore, according to the Court, the

Commission has always viewed its regulatory duties as

guided, if not limited, by our national tradition that

public response is the most reliable test of performance

in broadcasting. An important question of federal law

is thus presented by the Commission’s refusal to entertain

the views of the Foreign Language Groups on the denial

of the WHBI license renewal: Whether the Commission

may legally annul the statutorily protected right of

members of the listening public to inform the Commis-

sion that they are aggrieved and adversely affected by

the denial of a broadcast license renewal?

The Foreign Language Groups submit that the Com-

mission’s action defeats the purpose of Section 405 of

the Communications Act, is arbitrary and capricious and

denies them their due process right to be heard. Whether

or not the Commission ultimately grants the Foreign

Language Groups’ petition, it is at the very least obli-

gated to consider their comments on how the death

penalty imposed on WHBI will affect the ethnic com-

munities to which its programming is directed. The

Commission’s dismissal of the Foreign Language Groups’

petition for reconsideration in derogation of the Commu-

nications Act creates a dangerous precedent. If allowed

to stand, the Commission will have succeeded in silencing

not only WHBI but also the voice of the listening public.

The Court of Appeals affirmed the Commission’s

action without opinion. The correction of errors of law

by a court of appeals on review of administrative agencies

is committed to this Court through its certiorari jurisdic-

10

tion.'5 This case must be remanded to the court below

for correction of its error of law.

THE DENIAL OF WHBI’S RENEWAL OF LICENSE

ON THE BASIS OF A STALE RECORD IS ARBI-

TRARY AND CAPRICIOUS.

The Court of Appeals originally remanded this case

to the Commission to determine whether WHBI’s pro-

grmming was sufficiently meritorious to warrant renewal

despite the licensee’s transgressions. The Court held as

a matter of law that where there is a likelihood that a

license may not be renewed, determination of the meri-

toriousness of programming must include consideration

of the uniqueness of the programming to a significant

segment of the public.!®

On remand the Commission did not update the record

on WHBI’s performance over the equivalent of almost

four license periods to evaluate the uniqueness of its

service and the impact on the public of its termination,

but rather held that WHBI’s programming from 1966

to 1969 was not sufficiently meritorious to mitigate the

licensee’s transgressions during that same period. The

record in this case is so stale that it cannot possibly

support a decision either for grant or denial of WHBI’s

renewal application.!7

1S Federal Communications Commission v. Allentown Broadcast-

ing Corp., 349 U.S. 358 (1955).

16Cosmopolitan Broadcasting Corp. v. FCC, 189 U.S. App. D.C.

at 150-154, 518 F.2d at 928-932.

17Charles W. Jobbins, 68 F.C.C.2d 46, 42 R.R.2d 1580 (1978).

If the pubiic interest is to be served, the record must

be reopened and updated. The Commission’s action in

deciding this case on a record almost twelve years old is

the very essence of arbitrary and capricious conduct.'®

The Commission must determine whether a renewal of

WHBI’s license will serve the public interest, convenience

and necessity as of the time the renewal will be granted."°

To fail to evaluate the merit or uniqueness of WHBI's

program service actively broadcast during the past twelve

years since its renewal application was filed is to render

the denial of the renewal a matter of punishment rather

than a determination of where lies the public interest.

Many questions are raised by the passage of time. In

its Supplemental Decision, the Commission failed to

consider the effects on the disqualifying issues designated

against WHBI of the deregulation of radio and the new

Policy Statement on Time Brokerage Arrangements, both

of which were pending at the Commission while this case

was under consideration.

The Commission stated in Paragraph 6 of its Supple-

mental Decision that the meritorious programming issue

was framed,

“to determine whether the programming of Station

WHBI(FM) has been meritorious, particularly with

18 Ford Motor Co. v. NLRB, 305 U.S. 364 (1938); FCC v. Potts-

ville Broadcasting Co., 309 US. 134 (1940); Fly v. Heitmeyer,

309 U.S. 146 (1940).

19Easton Publishing Co. v. FCC, 87 U.S. App. D.C. 344, 185

F.2d 987 (1950). “The Court’s remand must, in view of the

reasoning of the Supreme Court, be read in the light of the Com-

mission’s duty to award applications for construction permits in

satisfaction of public interest, convenience or necessity at the

time of the award.” (Emphasis supplied.) 185 F.2d at 991.

12

regard to public service programs” .... This em-

phasis explains why the absence of program log

evidence was and remains a serious deficiency in

Cosmopolitan’s showing.

In the Report and Order in the Matter of Deregula-

tion of Radio, 84 F.C.C.2d 968, 49 R.R.2d 1, adopted

January 24, 1981, the Commission eliminated the

requirement that broadcasters maintain program logs. In

so doing the Commission stated:

As the record in this case reveals, our past program

logging requirement has served primarily as an index

to the quantity of nonentertainment and com-

mercial programming aired by individual licensees,

and has been of very little value as an index of

performance in the more general programming areas.

The Commission has never imposed a requirement

that stations supply extensive textual data on the

conten. of their programming, and doing so would

raise significant First Amendment questions. Our

experience also has shown that such information is

not necessary to meet our public interest oversight

and other statutory responsibilities. [Emphasis in

original. |

84 F.C.C.2d at 1010, 49 R.R.2d at 32.

The Commission’s holding that WHBI’s meritorious

programming showing was seriously deficient as a result

of the absence of program log evidence is clearly arbitrary

and capricious in light of its concurrent deliberations ?®

leading to the elimination of the log keeping rules as not

required by the public interest, not indicative of general

20The Notice of Proposed Inquiry in the deregulation proceed-

ing was adopted on September 6, 1979. 73 F.C.C.2d 457, 46

R.R.2d 237.

13

broadcasting performance and not reflective of program

content.

In addition to abolishing the program log keeping

requirement, the Commission, acting in the public

interest, eliminated its processing guidelines relative to

the amounts of nonentertainment programs which

commercial stations should provide, the rules and policies

dealing with the maximum amount of commercial

minutes per hour which a licensee may broadcast, and

the requirement that licensees adhere to detailed ascer-

tainment procedures.2!_ Certainly, the Commission

should have articulated the effect of these changes on

the public interest issue of WHBI’s renewal as it relates

to the silencing of a unique outlet.

On November 18, 1980, the Commission issued a new

Policy Statement on Time Brokerage Arrangements.??

This Policy Statement was not adequately taken into

consideration in deciding that WHBI’s renewal would

not be in the public interest. Instead, the Commission

attempted to grandfather the denial of WHBI’s renewal

as an exception to the new policy on the basis of the

licensee’s abdication of program control.?3 This appears

to be a shallow effort to avoid a resolution of the basic

issue upon an updated determination of whether the

cumulative minor indiscretions of WHBI are overcome by

the uniqueness of its program service. The Commission

secks to destroy this service in direct contravention of

the intent and spirit of its new Policy Statement in which

2184 F.C.C.2d at 977-983, 993-99, 1000-1008, 49 R.R.2d at

9-14, 20-24, 25-31.

2282 F.C.C.2d 107, 48 R.R.2d 763.

2382 F.C.C.2d at 109, 48 R.R.2d at 765.

14

it discusses the merits of time brokerage arrangements as

a means of encouraging the broadcast of foreign language

programs:

The growth of television and the increase in the

number of radio stations over time has yielded an

environment where, for most radio stations, the

preferred strategy is to seek specialized audiences

rather than mass audiences. There are, nonetheless,

some specialized audiences whose tastes continue

to go unmet because they are too small to support

an entire weekly schedule of such programming.

This is frequently the case for foreign language

audiences, whose preferred programming is unlikely

to attract a sizeable cross-over audience. Greater

flexibility in time brokerage arrangements could

encourage more programming responsive to these

specialized audiences.

82 F.C.C.2d at 120, 48 R.R.2d at 765.

If the public interest demands that foreign language

programming be fostered, surely the public interest is

disserved by the Commission’s termination of the most

linquistically diverse foreign language radio service in

the United States on the basis of a twelve year old record

without consideration of the impact of that termination

on the willingness of present day broadcasters to carry

ethnic programming. In an affidavit submitted with the

Foreign Language Groups’ petition for reconsideration,

Theodore C. Grame, author of a comprehensive study

of ethnic broadcasting completed under contract with

the American Folklife Center of the Library of Congress,

stated:

It is in fact, almost impossible for an ethnic broad-

caster whose station has cancelled his contract to

operate elsewhere, in these days of increasing

change to automated and format broadcasting.

15

Broadcaster after broadcaster, in all sections of

the country, told me that his main difficulty was

finding a station to carry his program—and this is

especially true in New York. Moreover, when a

station like WHBI ceases operations, those few

station operators who might be willing to carry

ethnic broadcasting stiffen their rates very con-

siderably, squeezing the ethnic, his public, and his

advertisers out of the radio medium. It is naive to

suppose otherwise.

CONCLUSION

The Commission has abrogated the Foreign Language

Groups’ statutory right to petition for reconsideration of

a decision by which they were aggrieved and adversely

affected. In so doing, the Commission turned a deaf

ear to the views of the listening public on the ultimate

question of whether renewal of WHBI’s license at the

present time would serve the public interest, convenience

and necessity and instead decided the case on the basis

of a record almost twelve years old. By failing to con-

sider the effect of changes in Commission policy which

are directly related to the disqualifying issues desig-

nated against WHBI and the effect of the termination

of WHBI’s unique broadcasting service on the ethnic

minorities the station serves, the Commission has acted

arbitrarily and capriciously.

16

This situation is unsettling to all members of the

listening public for whose benefit the Commission is

charged to regulate broadcasting. For the reasons set

forth above, it is respectfully requested that this petition

for writ of certiorari be granted to correct the errors of

law made by the Commission and the Court of Appeals.

Respectfully submitted,

JACK CHADRJIAN

250 West 57th Street

New York, New York 10017

(212) Circle 5-3252

FREDERICK W. Forp, Counsel of Record,

AND MARY C. ALBERT

LOVETT, FORD, HENNESSEY,

STAMBLER & SIEBERT, P.C.

1901 L Street, N.W., Suite 200

Washington, D.C. 20036

(202) 293-7400

Attorneys for Bulgarian

American League, et al.

Of Counsel:

LOVETT, FORD, HENNESSEY,

STAMBLER & SIEBERT, P.C.

i901 L Street, N.W., Suite 200

Washington, D.C. 20036

September 28, 1981

APPENDIX

la

APPENDIX

47 § 405 WirE OR RADIO COMMUNICATION Ch. 5

§ 405. Petition for rehearing; procedure; disposition;

time of filing; additional evidence

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

made or taken in any proceeding by the Commission, or

by any designated authority within the Commission

pursuant to a delegation under section 155(d)(1) of this

title, any party thereto, or any other person aggrieved

or whose interests are adversely affected thereby, may

petition for rehearing only to the authority making 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 under section

155(d)(1) of this title, in its discretion, to grant such a

rehearing if sufficient reason therefor be made to appear.

A petition for rehearing must be filed within thirty days

from the date upon which public notice is given of the

order, decision, report, or action complained of. No

such application shall excuse any person from complying

with or obeying any order, decision, report, or action

of the Commission, or operate in any manner to stay or

postpone the enforcement thereof, without the special

order of the Commission. 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 Commission, or designated

authority within the Commission, has been afforded no

opportunity to pass. The Commission, or designated

2a

authority within the Commission, shall enter an order,

with a concise statement of the reasons therefor, denying

a petition for rehearing or granting such petition, in

whole or in part, and ordering such further proceedings

as may be appropriate: Provided, That in any case where

such petition relates to an instrument of authorization

granted without a hearing, the Commission, or designated

authority within the Commission, shall take such action

within ninety days of the filing of such petition. Re-

hearings shall be governed by such general rules as the

Commission may establish, except that no evidence ether

than newly discovered evidence, evidence which has

become avavilable only since the original taking of evi-

dence, or evidence which the Commission or designated

authority within the Commission believes should have

been taken in the original proceeding shall be taken on

any rehearing. The time within which a petition for

review must be filed in a proceeding to which section

402(a) of this title applies, or within which an appeal

must be taken under section 402(b) of this title in any

case, shall be computed from the date upon which public

notice is given of orders disposing of all petitions for

rehearing filed with the Commission in such proceeding

. or case, but any order, decision, report, or action made

or taken after such rehearing reversing, changing, or

modifying the original order shall be subject to the same

provisions with respect to rehearing as an original order.

June 19, 1934, c. 652, Title IV, § 405, 48 Stat. 1095;

July 16, 1952, c. 879, § 15, 66 Stat. 720; Sept. 13,

1960, Pub.L. 86-752, § 4(c), 74 Stat. 892; Aug. 31,

1961, Pub.L. 87-192, § 3, 75 Stat. 421.

3a

47 C.F.R. § 1.106(b)

[Who May File]

(b) (1) Subject to the limitations set forth in subsec-

tion (b)(2) of this section, any party to the proceeding,

or any other person whose interests are adversely affected

by any action taken by the Commission or by the desig-

nated authority, may file a petition requesting reconsider-

ation of the action taken. If the petition is filed by a

person who is not a party to the proceeding, it shall

state with particularity the manner in which the person’s

interests are adversely affected by the action taken, and

shall show good reason why it was not possible for him

to participate in the earlier stages of the proceeding.

(2) Where the Commission has denied an applica-

tion for review, a petition for reconsideration will be

entertained only if one or more of the following circum-

stances is present:

(i) The petition relies on facts which relate

to events which have occurred or circumstances which

have changed since the last opportunity to present such

matters; or

(ii) The petition relies on facts unknown to

petitioner until after his last opportunity to present

such matters which could not, through the exercise of

ordinary diligence, have been learned prior to such

opportunity.

(3) A petition for reconsideration of an order

denying an application for review which fails to rely on

new facts or changed circumstances may be dismissed by

the staff as repetitious.