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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1878%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1084

## Text

1478 Cont, 3,
FILED

DEC 19 1064

|
84=- 988

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

hs Lee
WU Ashita
le iy £ ha Pe | : - !

‘é

in

a = @

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

= —. 7 .

a

pee = nebasitosd “6

ane tary a SNe wa) de oy kuietig =

| e. 7? ae ae aa a : i om
7
7
P a
ma . "ww rs 7 i
i. a 8
Wits o i
7
ty
; 2 oy it 7 7
vv
‘ ac Vie oo
a _ oe ed :
*
ay -
e
«
.
i
.
”
eo
i] *
a

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

—— s*

= Wl Crane a a hi feudal 29g

,

Pe A ar ee

peared) a

5 aol Grins i eres. FS)

- > @
j a ee

LJ84 chs were

as (ane

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

.
|
:
‘
.
.
'
.
4
|

15

ad t+ —y a 4 as i — oe >. i ea Se

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

= 5 - ~ } pe
_~ ants = ae:

is se Ser IGkaT 0 pe
: @
d- \ “ar? 3 fap Par

, yt «it ae AWne ae SAM Gs ear

‘

Osi Pos See iy eit? @ Oey

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.

22

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

23

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

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1878%3A1. Public record. Not legal advice.