Petition for Writ of Certiorari — City of New York Municipal Broadcasting System (WNYC) v. Federal Communications Commission

1478 Cont, 3,

FILED

DEC 19 1064

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IN THE ALEXANDER L. STEVaAg

SUPREME COURT OF THE UNITED BRATES——

October Term, 1984

No.

CITY OF NEW YORK MUNICIPAL

BROADCASTING SYSTEM (WNYC),

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

WCCO RADIO, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of the

City of New York,

Attorney for Respondent,

100 Church Street,

New York, New York 10007.

(212) 566-2192

LEONARD KOERNER,

STEPHEN P. KRAMER,

of Counsel.

December 19, 1984.

a\y'

QUESTION PRESENTED

Whether the Court of Appeals properly

affirmed a Federal Commmunications Commission

decision requiring the City of New York's Municipal

Broadeasting System to demonstrate that its

nighttime service applications warranted a waiver

of the FCC's "fundamental allocation policy," when

the Commission's Clear Channel Rules delineating

that policy specifically provided that a "public

interest" standard would govern its decision on the

applications?

TABLE OF CONTENTS

QUESTION PRESENTED. ........ccccccesecess

TABLE OF CONTENTS......cccccccscsccconses

TABLE OF AUTHORITIES. .........cccccsceee

OPINIONS BELOW. ......... sovccccccccecccccces

JURISDICTION. .....ccccccccccecevcecccesccsceses

STATUTES AND REGU-

LATIONS INVOLVED......ccccccccececsecescece

‘

REASONS FOR GRANTING

THE WRIT. ....cccccccccces eo vccccccccccoccccocscoce

THE CLEAR CHANNEL = RULES

SPECIFICALLY PROVIDED FOR THE

FILING OF WNYC'S NIGHTTIME SER-

VICE APPLICATIONS. THE COMMIS-

SION AND THE COURT OF APPEALS

ERRED IN REQUIRING THE STATION

TO JUSTIFY WAIVER OF THE BASIC

FREQUENCY ALLOCATION POLICIES

WHEN THE COMMISSION HAD AUTHO-

RIZED THE APPLICATIONS IN THE

FORMULATION AND PUBLICATION OF

THOSE POLICIES.

CONCLUSION . .ccccccccccccccccccccccccccccccocee

ii

Page

iii

14

25

TABLE OF AUTHORITIES

Page

Cases:

City of New York Municipal

Broadeasting System (WNYC),

744 F.2d 827 (D.C. Cir. 1984)........ 1, 20, 21

Federal Power Commission v.

Transcontinental Gas Pipe

Line Corp., 423 US. 326

(1976)..eccccccscccccscccccesscrccsccecescccees 24

Goodwill Stations, Inc. v.

Federal Communications

Commission, 325 F.2d 637

(D.C. Cir. 1963)...cccccccccscceccccesseees 7

Loyola University v. Federal

Communications Commission,

670 F.2d 1222 (D.C. Cir.

Li itinceiiscidienctititiecanenadsssrecceccscces 17

NLRB v. Food Store

Employees Union, Local 347,

417 U.S. l A 24

WAIT Radio v. FCC,

459 F.2d 1203 (D.C. Cir.

fg ae ere eeececece 22, 23

Statutes and Regulations:

47 US:C. EEE ee 2, 20

Federal Communications

Commission, Clear Channel

Broadcasting Rules, (1961)

BOOTIE DT. BOccncccncscssccveseccccoscocccces 2, 16

iii

Federal Communications

Commission, Clear Channeis,

47 CFR | TE I

Federal Communications

Commission, Rules,

Section 73.24(b) note........ccccccssees

Other Authorities:

Administrative Orders and

Decisions of the Federal

Communications Commission:

In re City of New York

Municipal Broadeasting System

(WNYC):

Initial Decision of Hearing

Examiner Smith, 15 Rad.

Reg. (P&F) 565 (1957).....ccceceeee

Memorandum Opinion and

Order of the Commission,

1 Rad. Reg. 2d(P&F) 463

(1963) .ncccocecsccccscccccccvevescceccocecoes

Memorandum Opinion and

Order of the Commission,

1 FCC 2d 1370 (1965)..ccccoccccccsee

Memorandum Opinion and

Order of the Commission,

8 FCC 2d 1047 (1967)......ccccceoeee

Memorandum Opinion and

Order of the Commission,

11 FCC2d 287 (Review

8) nN

iv

2, 17, 18

21, 22

6, 7

9,17

10, 18,

20, 21

9, 18

9,18

Memorandum Opinion and

Order of the Commission,

29 FCC 2d 244 (1971)......cccceeoeee

Memorandum Opinion and

Order of the Commission,

33 FCC 26 285 (1972) cccccoccccecce

Supplemental Initial

Decision of Administrative

Law Judge Deniston, 91 FCC

9G GEO (OTE rcansecentncccsrsscseseccess

Decision of the Commission,

91 POCIG CBS CIGCR)..ccccceceseeceee

Memorandum Opinion and

Order of the Commission,

FCC 83-232 (May 19, 1982).......

In re Clear Channel Broad-

casting in the Standard

Broadeast Band, Decision,

SE FES BOO (hee LPrcssenssccecccceee ccces

In re Clear Channel Broad-

casting in the Standard

Broadcast Band, Memoran-

dum Opinion and Order, 45 FCC

400 (1962)....cccccccrcscscccccsccccscscesees

Clear Chaennei AM Broad-

casting, 78 FCC2d 1345

1980 SSSSSSSSSSSSESSSSSSSSSSSSSSCSSCSSESSSESESEE

21

2, 10, 11,

21, 22

1, 4, 5, 6,

12, 13, 22

7, 8, 15,

16, 20

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

CITY OF NEW YORK MUNICIPAL

BROADCASTING SYSTEM (WNYC),

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

WCCO RADIO, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals affirming

the Federal Communications Commission (FCC) is

reported at 744 F.2d 827 (1984) and is reproduced in

the appendix at 1. The decision of the Federal

Communications Commission is reported at 91]

FCC2d 635 (1982) and is reproduced in the Appendix

at 39. The Memorandum Opinion and Order of the

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FCC denying WNYC's Petition for Reconsideration

(FCC 83-232) (May 19, 1983) is reproduced in the

Appendix at 64. The decision of the Administrative

Law Judge, reported at 91 FCC2d 659 (1978), is

reproduced in the Appendix at 74.

JURISDICTION

The judgment of the Court of Appeals was

entered on September 21, 1984. This petition for

certiorari has been filed within 90 days of that

judgment. This Court's jurisdiction is invoked under

the provisions of 28 U.S.C. $1254(1) and Rule 20(2) of

the Supreme Court Rules.

STATUTES AND REGULATIONS INVOLVED

Statute:

47 U.S.C. §307(b):

In considering applications

for licenses, and modifications and

renewals thereof, when and insofar

as there is demand or the same,

the Commission shall make such

distribution of licenses,

frequencies, hours of operation,

and of power among the several

States and communities as to

provide a fair, efficient, and

equitable distribution of radio

service to each of the same.

Regulations:

Clear Channel Broadcasting, 31 FCC 565 (1961), 605-

06.

47 CFR §73.25(a) Clear Channels; Classes I and II

Section 3.25, Note 2:

In view of special circumstances

arising from a service during some

nighttime hours by a class II

station opeating on 830 kHz at

New York, N.Y. (i.e. from 6 a.m.

to local sunrise and from sunset at

Minneapolis to 10 p.m. _ e.s.t.),

applications will be accepted for

such operation: Provided, that

they will be acted upon only after

and in light of the decision reached

in Docket No. 11227.

stations:

[Adopted June 20, 1980; see Clear Channel AM

Broadcasting, 78 FCC2d 1245, 1379 (1980). ]

Note 1: Questions relating to the

use of 830 kHz for a Class I

station at New York, New York,

which are pending in Docket Nos.

11227 and 17588 will be decided in

that consolidated proceeding.

STATEMENT OF THE CASE

This case involves a dispute over the proper

nighttime use of a clear channel AM radio

frequency, and presents important questions

regarding the proper method of applying the Federal

Communications Commission's clear channel rules

and policies. WNYC-AM is a municipally owned and

operated radio station serving New York City on 830

kHz. It has been operated non-commercially since

1924 and is completely devoted to public service. In

the Commission's words, "no other radio station

presents anything comparable to WNYC's extensive

range of public hearings, United Nations affairs, or

the foreign press." In re City of New York

Municipal Broadcasting System (WNYC), 91 FCC2d

635, 643 (1982). Approximately 45% of WNYC's

schedule is devoted to news, public affairs and other

informational programming, 35% to classical music,

and 20% to spoken word presentations, such as

programs for children, for the aged, and for women.

Id., 640-41.

WNYC is regularly licensed to operate only

between local sunrise in New York City and local

sunset in Minneapolis because of the nighttime

interference it causes to the secondary service area

of WCCO-Minneapolis, a radio station which is also

licensed to broadcast on 830 kHz. Id., 637. (A clear

channel's "secondary service area" is generally a

circular area some 700-750 miles in diameter around

the clear channel transmitter, and encompasses

areas which could receive a usable nighttime signal

some 50% of the time. Id., 640, n. 19) The

restrictions limit (in eastern standard time) WNYC's

sign-on time from 4:30 a.m. in June and July to 7:15

a.m. in December and January, and limit sign-off

time from 5:30 p.m. in December to 9:30 p.m. in

June and July (id., 637), thereby sharply limiting

WNYC's availability to those who work during the

day. The WNYC nighttime operations which are at

issue in this case do not cause interference to

reception in the area toward which WCCO aims its

programming (its "primary service area"). Rather,

the operations interfere with reception in areas

ul

distant from Minneapolis, all of which receive at

least ten other similar "secondary" radio services in

addition to that of WCCO. Id., 640.

Since 1943, pursuant to a series of annual

Special Service Authorizations ("SSA's"), the FCC

has permitted WNYC to operate from 6:00 a.m. to

10:00 p.m. In 1954, the FCC designated WNYC's

application for a continuance of its SSA for hearing

(Docket No. 11227), and extended the SSA pending

final decision. This case involves a challenge to the

FCC's final resolution of that application, some

thirty years subsequent to its initial designation for

hearing.

The Hearing Examiner initially assigned to the

case issued a ruling in 1957. In re City of New York

Municipal Broadcasting System (WNYC), 15 Rad.

Reg. (P & F) 565. She determined that while

WNYC-AM could not broadcast at night under

Commission rules, WNYC served "special and

compelling needs and requirements" which did "not

cease with the setting of the sun in Minneapolis." 15

Rad. Reg. (P&F) at 639. She recommended that

WNYC's SSA application to operate at night be

granted, and that the issue of regular licensing for

the nighttime service be deferred pending the

Commission's decision in the "Clear Channel case,"

a proceeding involving a redetermination of the

Commission's fundamental frequency allocation

policies regarding AM broadcasting. Id.

Accordingly, the Commission took no action on

WNYC's application until the clear channel issues

were resolved.

The Commission issued its Clear Channel

Decision and Rules in 1961. In re Clear Channel

Broadcasting in the Standard Broadcast Band ("Clear

Channel Broadcasting"), 31 FCC 565, reconsideration

denied, 45 FCC 400 (1962), aff'd sub nom. Goodwill

Stations, Inc. v. FCC, 325 F.2d 637 (D.C. Cir. 1963).

The 1961 amendments authorized full-time stations

on the majority of the previously protected twenty-

five class 1-A clear channels. Assignment of

additional stations to 830 kHz was deferred pending

adjudication of the administrative hearings on

WNYC's application. In its clear channel decision

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the Commission also stated that it would not

approve any nighttime assignment on any class 1-A

frequency unless the subordinate station protected

the dominant station's secondary service area. Id.,

31 FCC at 581-582.

Because WNYC could not so protect WCCO,

the Commission added a note to its allocation rules

($3.25, Note 2) authorizing WNYC's application for

nighttime operations. Id., 605-06. The Commission's

decision provided for a determination in an

adjudicatory proceeding of whether "such operations

are in the public interest." Clear Channel

Broadeasting, supra, 31 FCC at 591. The

Commission stated the issue to be decided as

"whether, balancing the interference caused to

WCCO against the service WNYC renders during

nighttime hours, the public interest would be served

by continuing to permit WNYC's nighitime

operation, for which no provision is made in the AM

rules governing the use of Class I-A frequencies."

Id. The issue was similarly framed in many

procedural orders of the Commission in the

proceedings here under review. See, e.g., In re City

of New York Municipal Broadcasting System

(WNYC), 8 FCC 2d 1047, 1050 (1967); see also Ul

FCC2d 287, 298 (Review Board 1968); 29 FCC2d 244,

247 (1971).

In 1963, the FCC remanded Docket 11227 to the

Hearing Examiner for updating of the record. In re

City of New York Municipal Broadcasting Sytem

(WNYC), 1 Rad. Reg. 2d (P&F) 463, 464-65. Since

the Commission had previously recognized in its

order disposing of petitions for rehearing in the

clear channel proceeding* that WNYC could operate

nighttime from a different transmitter site and with

a different directional pattern which would result in

less interference to WCCO than under its SSA

proposal, in 1964, WNYC applied for a construction

permit and asked permission to broadcast at 50 kw

from a new site on Staten Island from 6 a.m. to 10

p.m. Although the Commission had invited this

*Clear Channel Broadcasting, supra, 45 FCC at 410.

application, certain technical aspects of the

application were not specifically provided for in the

1961 amendments to the Clear Channel Rules. As a

result, WNYC was arguably required to apply for a

waiver of the rules for the construction application

to be accepted. This waiver was granted in 1965 (In

re_ City of New York Municipal Broadcasting

System, 1 FCC2d 1370, 1374) and the construction

permit application was set down for hearing in

conjunction with the application for continuation of

the SSA.

The Administrative Law Judge issued his

supplemental initial decision in June, 1978. In re

City of New York Municipal Broadcasting System

(WNYC), 91FCC2d 659. It granted the WNYC

application for permanent nighttime authority, new

antenna array, and 50 kw operating power, and

dismissed as moot its application for the special

service authorization. The decision contains factual

findings in favor of WNYC's application on virtually

every issue. In particular the Administrative Law

Judge found that WNYC's programming meets

10

special needs and requirements of the populations

and areas to be served; that other stations do not

carry public interest programs of the type,

magnitude or depth provided by WNYC; and that its

"operations provide a unique municipally-

coordinated service to the primary service area

populations not otherwise available. Many of the

programs enumerated must continue beyond the

daylight hours or remain incomplete." 91 FCC2d at

774-776. In the areas in which WCCO's signal would

receive interference, the Administrative Law Judge

found that WNYC's proposals would cause no

objectionable interference to the primary service

contour of any existing or proposed operation—i.e.,

"the number of available aural services within the

various objectionable interference areas are

independent of WNYC's operation." Id., 703. With

regard to the secondary service areas in which there

would be interference, "there are more than ten

other secondary services available" — "thus all of

the above objectionable interference areas are

already weli-served." Id., 705.

1]

In its decision reversing the Administrative

Law Judge, the Commission similarly found WNYC's

programming to be unique. In re City of New York

Municipal Broadcasting System, 91 FCC2d 615, 643

No catenin Na te emia aT 0 4a

(1982):

No other station appears to present

anything comparable to WNYC's

extensive coverage of public

hearings, United Nations affairs,

and the foreign press. Apparently

no other station offers the

equivalent of WNYC's festival

format for intensive exploration of

public affairs and cultural subjects,

and no other AM station in the city

carries National Public Radio

programming. Moreover, in some

areas, such as programming

concerning veterans, children, the

handicapped, and aging, WNYC

seems to have provided

programming of _ significantly

greater depth than that of the rest

on the market. SSA hours are used

for at least some of these

programs.

The Commission accepted the Administrative Law

Judge's findings that WNYC's proposals would cause

no. interference to WCCO's primary service area,

and that at least ten other secondary services were

available in all of the areas of secondary

interference. Id. at 639-40 and at n.14. The

12

Commission, however, did not weigh the

programming gains and losses of the respective

competing areas. 91 FCC2d at 648. Rather the

Commission stated that WNYC's nighttime service

"is not essential to serve special needs and

requirements" and that it had therefore "not met

the heavy burden of justifying a waiver of the

fundamental allocation policy involved here." Id.

The SSA hours are critical for WNYC to meet

its public service obligations. The early morning

hours are essential for providing National Public

Radio broadcasts, public information bulletins, and

traffic and transit information to morning

commuters; the evening SSA hours are similarly

essential to provide in-depth news and public

interest programs for those who work during the

day, as well as for children's programs. Loss of this

programming, which the Commission not only found

sufficiently worthy. over the past 40 years so as to

warrant repeated issuance of SSA's, but also

exceptionally valuable in the adjudicatory

proceedings in this case, will be severely

13

fi

detrimental to the residents of the New York City

metropolitan area. The Commission's rationalization

that programming on WNYC-FM can be cut back to

accommodate what is special and unique to WNYC-

AM utterly ignores the public interest character of

the FM station. Moreover, the FM station's schedule

and format are designed for, and reach, a different

listener audience from that of the AM station. Loss

of such a resource without even an attempt to weigh

the alternative loss in the WCCO secondary service

area is utterly without rational basis.

REASONS FOR GRANTING THE WRIT

THE CLEAR CHANNEL RULES SPECIFICALLY

PROVIDED FOR THE FILING OF WNYC'S

NIGHTTIME SERVICE APPLICATIONS. THE COM-

MISSION AND THE COURT OF APPEALS ERRED

IN REQUIRING THE STATION TO _ JUSTIFY

WAIVER OF THE BASIC FREQUENCY ALLO-

CATION POLICIES WHEN THE COMMISSION HAD

AUTHORIZED THE APPLICATIONS IN THE FOR-

MULATION AND PUBLICATION OF THOSE

POLICIES.

(1)

When the Federal Communications

Commission issued its report and order in the clear

14

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channel proceeding (Clear Channel Broadcasting,

supra, 31 FCC 565), the Commission determined

that the regularization of WNYC's nighttime

operations would be decided under a "public

interest" standard — i.e., by balancing the gains in

WNYC's service area against the losses in WCCO's.

The Commission stated (31 FCC at 591-92):

75. Since 1943, WNYC, a

municipally owned and operated

station in New York City, has been

permitted under a _ series of

temporary authorizations to

operate on 830 ke certain

nighttime hours: 6 a.m. (e.s.t.) to

local sunrise and from sunset at

Minneapolis to 10 p.m. (e.s.t.),

with power of 1 kw. (WNYC's

regularly licensed limited-time

operation on 830 ke is at 1 kw

power, with a different directional

antenna.) Nothwithstanding the

directional antenna employed,

WNYC's operation during nighttime

hours causes interference within

the secondary service area of

WCCO at Minneapolis. In a

pending adjudicatory proceeding

(docket No. 11227) consideration is

being given to the question of

whether, balancing the

interference caused by WCCO

against the service WNYC renders

during nighttime hours, the public

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interest would be served by

continuing to permit WNYC's

nighttime operation for which no

provision is made in the AM rules

governing the use of class I-A

frequencies.

76. We do not here decide

upon or prejudice the decision in

those adjudicatory proceedings. In

one pertinent respect, however, it

is appropriate to take action in this

proceeding by way of amending the

clear-channel rules to establish the

basis for the regular licensing of

WOFrs presunrise operations and

WNYC's nighttime operations so

that in the event it is decided in

the adjudicatory proceedings that

such operations are in the public

interest the way will be clear

procedurally for the application to

be filed for such operations on a

regular basis.

Accordingly, the Commission adopted "Note 2" to

its clear channel rules (quoted at page 3, supra)

which provided that WNYC's applications would be

accepted for filing but acted upon only after a

decision in the adjudicatory proceeding. During the

lengthy proceedings, the Commission repeatedly

reiterated that its Clear Channel Rules authorized

the applications, that there were no procedural bars,

and that the applications would be decided on their

16

merits.* For example, in its 1963 memorandum

opinion and order remanding the special service

authorization issue for supplementation of the then

stale record, the Commission stated that the rule

"permits WYNC to file an application for the

regular licensing of the pre-sunrise and evening

operations." In re City of New York Municipal

Broadcasting System (WNYC), 1 Rad. Reg. 2d (P&F)

463, 464-5 (1963). Similarly, when WCCO filed

objections to the City's application for a

construction permit to move its transmitter site to

Staten Island — an application invited by the

Commission as a way to reduce the interference

below the level emanating from its existing site —

the Commission ruled that the new proposal would

be decided "on its merits,” and that any technical

*The wording of the note was amended in a 1980

order revising the Clear Channel Rules, but its

substance was not affected. Clear Channel AM

Broadcas 78 FCC 2d 1345, recon. den., 83 FCC

2d 2 0), aff'd sub nom. ola University v.

FCC, 670 F.2d 1222 (D.C. Cir. 1982). p.3, supra,

or the current text.

17

violations of Commission rules would be waived. In

re City of New York Municipal Broadcasting

System, 1 FCC2d 1370, 1373-74 (1965). In 1967 the

Commission stated that note 2 to section 73.25

(former sec. 3.25) had provided "for an ultimate

regularization, one way or another, of WNYC's

operating schedule." In re City of New York

Municipal Broadcasting System, 8 FCC2d 1047, 1051.

Similarly, in 1968, the review board stated:

The Commission made provision

for applications for permanent

operation for 830 kHz (to operate

daytime and certain nighttime

hours), upon which WCCO is the

dominant station, if such

applications met certain technical

standards and were otherwise in

the public interest. [Footnote

omitted] [11 FCC 2d at 298]

Nowhere is there any indication that WNYC would

be required to demonstrate that its applications

warranted waiver of the fundamental allocation

policies underlying the Clear Channel Rules.

In sum, the Commission determined in 1961 and

so provided in its rules that the use of 830 kHz

would be governed by the outcome of the

18

adjudicatory proceeding, and that the Clear Channel

Rules and the corollary protection o the secondary

skywave contour would not pose ‘“surmountable

hurdles to WNYC's nighttime operati ns. Thus the

question litigated in the proceeding was whether

WNYC's programming sufficiently served special

needs which outweighed the needs of *he populations

which would otherwise be served by WCCO. This

was not only the case litigated — it was the case

which WNYC won. For not only both hearing

examiners, but the Commission also acknowledged

that a) WNYC's programming was extraordinary and

catered to an extraordinarily large and diverse

audience, and b) that the interference area was well

served by at least ten other secondary services

similar to that of WCCO.

The Commission committed itself to a specific

set of rules in 1961 which provided for WNYC's

application. In so doing, the Commission recognized

that WNYC's nighttime operation might not run

afoul of the basic purpose of the Clear Channel

Rules—to ensure an adequate level of radio services

19

to underserved areas of the country. Clear Channel

Broadcasting, 31 FCC at 575. The Commission may

not, some twenty years later, rewrite its rules to

justify a refusal to weigh the evidence and actually

determine which of the two competing services

provides the most "fair, efficient and equitable” use

of the frequency. 47 U.S.C. §307(b).

(2)

The waivers upon which the Court of Appeals

relied in holding that the FCC properly applied a

waiver standard did not relate to the Commission's

fundamental allocation policies. The Court of

Appeals refers (744 F.2d at 836, Appendix at 19) to

the fact that on July 7, 1964, WNYC filed a petition

for waiver of the Commission's rules, citing In re

City of New York Municipal Broadcasting System

(WNYC), 1 FCC2d 1370, 1371 (1965). A reading of

this 1965 order clearly demonstrates that the waiver

applications referred to were 1) waiver of the

Commission's rules relating to a freeze on

applications (section 1.571 of the Commission's rules)

20

and 2) a waiver of the rules so as to authorize an

application for 50 kw of power daytime — an

application not contemplated by the Commission in

its Clear Channel Rules, but clearly responsive to

the Commission's invitation to WNYC in its

disposition of the petitions for rehearing in the clear

channel proceeding. Clear Channel Broadcasting,

supra, 45 FCC at 410. These technical waivers were

granted in the Memorandum Opinion and Order of

November 17, 1965, supra, (1 FCC 2d at 1374), and did

not involve "fundamental allocation policy."

The Court of Appeals refers (744 F.2d 836-7,

Appendix at 20) to a similar technical, but hardly

basic Commission reference to a waiver in a 1972

order framing issue 6 in the proceeding, 33 FCC2d

285, 289 (1972). This issue related to the note to

Section 73.24(b) of the Commission's rules, which

concerns the strength and coverage of an applicant's

signal.* This note does not reflect or touch upon

*The text of the note is set forth at 91 FCC 2d at

713.

21

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basic Commission allocation policy. The issue is

described thoroughly by the Administrative Law

Judge at 91 FCC2d 710, 11143 to 158, and was not

reversed by the Commission.*

(3)

There can be no doubt that the Commission

decided this case under the standard it applies in

determining applications for waivers. It stated in its

decision:

All told, we conclude that the

limited AM operations as

supplemented by the FM operation

should be sufficient to meet the

realistic special needs of New York

City and that WNYC has not met

the heavy burden of justifying 4

waiver of the fundamental

allocation policy here.>2

52See WAIT Radio v. FCC, 459

F.2d 12 Ae Cle ‘

In re City of New York Municipal Broadcasting

System (WNYC), 91 FCC 2d at 648. The "waiver

*The Commission adopted all the findings and

conclusions of the Administrative Law Judge except

those specifically rejected or modified. 91 FCC 2d

at 639, n.l4. The Commission discussed this

particular rule at 91 FCC 2d at 638, n. 10.

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standard" articulated in WAIT v. FCC is heavy

indeed. An applicant must demonstrate either that

its application violates the letter of a rule, but not

the policy underlying its adoption; or if the policy is

indeed violated, the applicant must demonstrate

compelling countervailing considerations. This

standard is far different from the "public interest"

standard to which the Commission committed itself

when it formulated the Clear Channel Rules — i.e.,

to weigh the relative gains and losses to the

listening public in the respective service territories

of WNYC and WCCO. Similarly, the standard of

review in a waiver case is far different from that in

a public interest case — in the former, the applicant

"must show that the Commission's reasons for

declining to grant the waiver were so insubstantial

as to render that denial an abuse of discretion,"

WAIT v. FCC, supra, 459 F.2d at 1207; in the latter,

the question is one of substantial evidence.

The Court of Appeals committed clear error in

upholding the Commission's reliance on its waiver

powers and in failing to require the Commission to

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weigh the relative gains and losses in the respective

listening areas of WNYC and WCCO. The error was

significant and prejudicial. The Commission found

that WNYC's programming was special and in many

ways unique. No similar findings were or could have

been made regarding WCCO'’s. Moreover, the

Commission failed to address the significance of the

fact that the residents of the interference area all

receive at least ten other secondary services. The

Commission thereby failed to address the question

of how WNYC's applications would interfere with

the purpose of protecting secondary service areas —

to provide an adequate level of radio service to

underserved areas. The Commission's decision thus

cannot be reconciled with its statutory mandate to

ensure a "fair, efficient and equitable distribution of

radio service". 47 U.S.C. §307(b). The Court of

Appeals should have remanded the matter to the

Commission for a proper determination. See Federal

Power Commission v. Transcontinental Gas Pipe

Line Corp., 423 U.S. 326, 331-333 (1976); NLRB v.

24

Food Store Employees Union, Local 347, 417 U.S. 1,

9-10 (1974).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

FREDERICK A.O. SCHWARZ, JR.

Corporation Counsel

Attorney for Petitioner

LEONARD KOERNER,

STEPHEN P. KRAMER,

of Counsel.

December 19, 1984

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