Opposition Brief — Office of Communication of the United Church of Christ v. Federal Communications Commission

Oo D

Nos. 87-1487, oak 87-1510 and 87-1551

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

OFFICE OF COMMUNICATION OF THE

UNITED CHURCH OF CHRIST,

y, Petitioner,

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STA7ES OF AMERICA,

Respondents.

NATIONAL ASSOCIATION OF BROADCASTERS,

y, Petitioner,

CENTURY COMMUNICATIONS CorpP., et al.,

Respondents.

ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC.,

wy. Petitioner,

CENTURY COMMUNICATIONS CorpP., et al.,

Respondents.

CORPORATION FOR PUBLIC BROADCASTING,

NATIONAL ASSOCIATION OF PUBLIC TELEVISION STATIONS,

AND PUBLIC BROADCASTING SERVICE,

y, Petitioners,

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

CONSOLIDATED OPPOSITION OF RESPONDENT

RICHARD S. LEGHORN TO THE PETITIONS

FOR A WRIT OF CERTIORARI

(Attorneys Listed on Inside Cover)

WIiLson.- Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

* Counsel of Record

May 9, 1988

JAMES L. QUARLES III *

WILLIAM G. MCELWAIN

HALE AND DORR

1455 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 393-0800

Attorneys for Respondent

Richard S. Leghorn

QUESTIONS PRESENTED

The Office of Communication of the United Church of

Christ (“UCC”); the Corporation for Public Broadcast-

ing, et al. (“CPB”); the National Association of Broad-

casters (“NAB”); and the Association of Independent

Television Stations, Inc. (“INTV”) have each filed a

petition for a writ of certiorari’ seeking review of the

judgment of the United States Court of Appeals for the

District of Columbia Circuit in Century Communications

Corp., et al. v. Federal Communications Commission, et

al., 835 F.2d 292 (D.C. Cir. 1987).* The questions raised

by the petitioners may be distilled to the following:

Whether the Court of Appeals properly applied the

standard set forth in United States v. O’Brien, 391

U.S. 367 (1968) in holding temporary must-carry

rules to be unconstitutional restrictions on free

speech, where the FCC was unable to “adduce either

empirical support or at least sound reasoning on

behalf of” * the rules.

1 This opposition is being filed as a consolidated opposition to the

four petitions.

2The opinion below is reproduced in Petitioners’ Appendix

(“P.A.”) at pp. la-28a.

3 P.A. at 28a.

ii

PROCEDURAL STATEMENT

Richard S. Leghorn, formerly a cable operator and now

an investor in cable enterprises, submitted comments to

the FCC on the regulations at issue in these proceedings

and was a petitioner in the consolidated proceedings be-

fore the Court of Appeals. Pursuant to Supreme Court

Rule 34.2, Mr. Leghorn relies on the petitions of UCC,

CPB, NAB and INTV for a list of the parties to the

proceedings, the citations to the opinions and judgments

delivered below, the jurisdictional statements, and the

statement of statutory and constitutional provisions in-

volved.

TABLE OF CONTENTS

Page

COUTTS TEINS FUT isc iscesnsacecncctnsnncanvaccansecanae i

PROCEDURAL STATEMENT ...................................... ii

pv NF Gs a Nig y |! > yy | ~. ene eee mn CmRm Une mn CCE eneEn iv

STATEMENT OF THE CASE ........................................ 2

1. The FCC Regulations 2

S see Deciion Belew 4

REASONS FOR DENYING THE WRIT _............ 5

I. The Court Of Appeals’ Narrow Ruling Does Not

Conflict With Other Court Decisions And Raises

No Questions Warranting Review _.................... 5

II. No Substantial Or Important Issue Concerning

The Deference To Be Afforded Agency Discre-

Se Ge ar IIE hniictedettcc en oe 10

ON nas ident dap occasnisiins cones cedurcdnauaabaape snes 16

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

American Civil Liberties Union v. FCC, 823 F.2d

1554 (D.C. Cir. 1987), cert. denied sub nom.,

Connecticut v. FCC, 56 U.S.L.W. 3644 (1988) .. 14

Black Citizens for a Fair Media v. FCC, 719 F.2d

407 (D.C. Cir. 1983), cert. denied, 467 U.S.

TZGS 12964) ccccccccescs SMD Sy Wiad etal t tpn Lo ar oR 9

Black Hills Video Corp. v. FCC, 399 F.2d 65 (8th

I a e 8

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

401 U.S. 402 (1971) .......... EE RA ET 11

City of Los Angeles v. Preferred Communications,

Inc., 476 U.S. 488 (1986) .......2.......c..cc.ccccccccccccccses 7,11

City of Renton v. Playtime Theatres, Inc., 475

Me RE SP RIIOED: ccsscccsccecsnenasccccrsccassescdensiasseciananenianse 11, 12

Clark v. Community for Creative Non-Violence,

MAES TT. SB CADRE) nncccccercocccsssnnnccnasenttncsecssensoiness 12

Consolidated Edison Co. v. Public Service Com-

mission of New York, 447 U.S. 530 (1980) ....... 4

FCC v. Midwest Video Corp., 440 U.S. 689

SINIIIITT 5 +<isi-asinhanacaanoncassadnascnsannenesnesinniisnmdednubupensmenaipieses 7,8

Greater Boston Television Corp. v. FCC, 444 F.2d

841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923

INITIITIINTT-26:csesndasiantunoninnsiseineiesmashansediddqesesieiveteiilecltelaniaesltashdedtiasiie 9

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

Cir. 1978), aff’d sub nom., FCC v. Midwest

Video Corp., 440 U.S. 689 (1979) oo. 8

Mobil Oil Corp. v. FPC, 417 U.S. 283 (1974)........ 13

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434

(D.C. Cir. 1985), cert. denied sub nom., Na-

tional Association of Broadcasters v. Quincy

Cable T.V., Inc., 476 U.S. 1169 (1986) 0... passim

Schad v. Borough of Mount Ephraim, 452 U.S. 61

0 Sp ee 11

United States v. Albertini, 472 U.S. 675 (1985)... 12

United States v. Midwest Video Corp., 406 U.S.

649 (1972)

United States v. O’Brien, 391 U.S. 367 (1968) ....passim

United States v. Southwestern Cable Co., 392 U.S.

157 (1968)

v

TABLE OF AUTHORITIES—Continued

Page

Universal Camera Corp. v. NLRB, 340 U.S. 474

HS fe ena a ES hier AOSTA AR ORNN rn ater ton Mas a ats 13

Vermont Yankee Nuclear Power Corp. v. Nat-

ural Resources Defense Council, Inc., 435 U.S.

Ue WUE cilioclaxetusciveduitanbbiticiedndthintatabeipniadiamniisnelics 11, 12

U.S. Constitution

Ce eS passim

Statutes

MTN: TPIT -cccctctdstuntadeassinbnasditemstmatinsmmuscceiien 8

i OTE cat crac pane sssehadosnmbaccccaeee mecabacerenswasenince s

gi k | od | 3!) REeepnneemneenes saueasensonaeedondce 7

Other

Notice of Inquiry, MM Docket No. 88-138, adopted

March 24, 1988 (FCC Rep. No. DC-1134) .......... 15

Reply of NCTA in MM Docket No. 85-349, March

2, 1987 (Court of Appeals J.A. at 618, 625-29) .. 15

Report and Order, Gen. Docket No. 87-107, 2 FCC

OUT. UIE. IEE casercacinc ccvsearenconianaiciene dain muieaaess 13

Report and Order in MM Docket No. 84-1296, 58

Rad. Reg. 2d (P & F) 1 (1985)

Go

aa gh : testes

~~ g

x an a (-, a r*

IN THE

Siytreme Court of the United States

OCTOBER TERM, 1987

Nos. 87-1487, 87-1506,

87-1510 and 87-1551

OFFICE OF COMMUNICATION OF THE

UNITED CHURCH OF CHRIST,

. Petitioner,

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

i Respondents.

NATIONAL ASSOCIATION OF BROADCASTERS,

Petitioner,

Vv.

CENTURY COMMUNICATIONS CorpP., et al.,

Respondents.

ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC.,

Petitioner,

V.

CENTURY COMMUNICATIONS CorpP., et a/.,

Respondents,

CORPORATION FOR PUBLIC BROADCASTING,

NATIONAL ASSOCIATION OF PUBLIC TELEVISION STATIONS,

AND PUBLIC BROADCASTING SERVICE,

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

Respondents,

2

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

CONSOLIDATED OPPOSITION OF RESPONDENT

RICHARD S. LEGHORN TO THE PETITIONS

FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

1. The FCC Regulations.

In Quincy Cable TV, Inc. v. Federal Communications

Commission, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied

sub nom., National Association of Broadcasters v. Quincy

Cable TV, Inc., 476 U.S. 1169 (1986), the Court of Ap-

peals held that the First Amendment rendered ‘“must-

carry” rules promulgated by the Federal Communications

Commission (“FCC” or the “Commission’”) unconstitu-

tional. Those earlier rules required cable operators to

carry the signals of all local broadcast stations. The

rules were thought necessary by the FCC io “assure that

the advent of cable technology not undermine the financial

viability of free, community-oriented television.” 768

F.2d at 1440.

In addressing the constitutional challenge to the rules,

the Quincy court found it unnecessary to decide the pre-

cise level of First Amendment protection enjoyed by cable

operators: rather, it found that two reasons rendered the

must-carry rules invalid even under the lenient standard

established by United States v. O’Brien, 391 U.S. 367

(1968). 768 F.2d at 1454. First, the court held that the

FCC failed to substantiate a threat to free local broad-

casting in the absence of the must-carry rules. 768 F.2d

at 1459. Second, the court held that the rules were a

fatally overbroad response to the problem posited by the

FCC because they indiscriminately protected every local

broadeaster regardless of the quality of local service

available in a community, the number of local outlets

3

carried by a cable operator, or the degree to which a

cable operator posed a threat to local broadcasting. 768

F.2d at 1460-63.

After Quincy, the FCC initiated a rule-making pro-

ceeding to consider new must-carry rules. In November,

1986, the FCC promulgated new, temporary rules.

The feature which most distinguishes the temporary

rules from the permanent must-carry rules invalidated

in Quincy is the justification offered for their promulga-

tion. In crafting the temporary rules, the Commission

did not attempt to garner evidence in support of the need

to protect local broadcasting. Rather, after reviewing

changes in the cable industry over the past two decades,

the Commission concluded that “it is no longer appro-

priate or desirable to treat cable as an auxiliary video

distribution service and to protect local broadcast tele-

vision service from competition with cable service.” P.A.

at 97a.

The FCC did, however, perceive a temporary need to

impose limited must-carry rules “to maximize the avail-

ability of program choices by competing providers both

off-the-air and on cable.” Jd. After reviewing one study

showing a decrease in the installation and use of an-

tennas, P.A. at 100a, the Commission concluded that con-

sumers incorrectly believed that “their only means of

access to off-the-air signals is through their cable serv-

ice.’ P.A. at 99a. The Commission argued that tem-

porary measures were necessary to correct this “mis-

perception” before ‘economic forces can be relied upon

to achieve maximum diversity in program choices for the

public.” Id.

There were three main features of the regulations

adopted by the FCC.’ First, the regulations required

1The FCC regulations are reproduced in Petitioners’ Appendix

at 177a-88a and are codified at 47 C.F.R. §$ 76.5, 76.53, 76.55, 76.56,

76.58, 76.60, 76.62, 76.64 and 76.66.

4

cable operators to offer to install “input-selector devices”

in consumers’ television sets. P.A. at 185a-87a. See also

P.A. at 112a-14a. These devices—costing as little as

$7.50—permit viewers to readily switch from cable to

broadcast programming, thus ensuring access to the

greatest number of program choices. Second, the regula-

tions required cable operators to educate the public about

the availability of switches and their use to obtain broad-

cast signals not available over cable. Jd. Finally, the

regulations contained must-carry rules, effective for the

five year period the Commission thought necessary for

consumers to become accustomed to input-selector devices.

P.A. at 180a-82a. See also P.A. at 114a-25a.

The temporary must-carry rules were more limited in

scope than the permanent rules invalidated by Quincy.

The temporary rules applied only to a portion of a cable

operator’s channel capacity and not at all to some cable

operators. See P.A. at 180a-82a. See also P.A. at 119a-

22a. Moreover, not all local broadcasters would be en-

titled to the benefit of the rules. P.A. at 177a-82a. See

also P.A. at 114a-22a. To be entitled to carriage, a

station must have a minimum audience or must other-

wise fall into a class favored by the Commission as, for

example, public broadcasting stations. Jd.

2. The Decision Below.

In the Court of Appeals Mr. Leghorn argued that the

new rules should be invalidated because they were not

and could not be justified as a “precisely drawn means

of serving a compelling state interest.” Consolidated

Edison Co. v. Public Service Commission of New York,

447 U.S. 530, 540 (1980). Mr. Leghorn also argued that

the temporary rules failed the First Amendment test

established by United Staies v. O’Brien, supra. Because

the FCC’s input-selector switch and consumer informa-

tion rules are fully adequate to ensure access to off-the-

air signals and correct any consumer misperception, Mr.

Leghorn contended there is no need to intrude on cable

5

operators’ First Amendment rights by continuing must-

carry rules. Certainly, no such need was demonstrated

in the record before the FCC.*

A unanimous panel of the Court of Appeals did not

find it necessary to address the broad constitutional ar-

guments principally urged by the other petitioners below.

P.A. at 14a-15a. Instead, the Court devoted its narrowly

drawn decision to an examination of whether the FCC

met its burden of establishing that the temporary must-

carry rules met the O’Brien standard. P.A. at 15a-

28a. The Court held that the agency had again failed to

offer empirical evidence or sound reasoming showing a

threat to a governmental interest sufficient to justify

even an incidental restriction on speech. P.A. at 28a.

The Court also found that the rules were overbroad be-

cause the FCC had supplied no evidence that five years

of continued must-carry rules were necessary even if the

existence of a valid governmental interest was presumed.

P.A. at 26a-28a.

REASONS FOR DENYING THE WRIT

I. The Court of Appeals’ Narrow Ruling Does Not Con-

flict With Other Court Decisions And Raises No Ques-

tions Warranting Review.

The petitioners misconstrue what the FCC and the

Court of Appeals actually decided in an attempt to create

*In his initial comments filed with the FCC, Mr. Leghorn ad-

vanced the concept of relying on input-selector switches rather than

must-carry rules as a means to achieve the FC(’s objectives with-

out intruding upon constitutionally protected rig-hts. In particular,

he argued that the FCC should require manufacturers to design and

sell television receivers with built-in switching capability so that

cable subscribers could simply switch to off-air reception if their

cable system did not carry the signal of a desired local television

station. While the FCC did not adopt the built-iin switch aspect of

his proposal, Mr. Leghorn did not appeal the Commission’s failure

to do so because he believed the FCC's input-sellector switch rules,

as modified on reconsideration, accomplished most of what he

sought to achieve, were not intrusive on First .Amendment rights

and obviated the need for temporary must-carry’ rules.

6

a conflict among the authorities or important issues war-

ranting review. The FCC’s and the court’s reasoning

and conclusions were, however, clear. The FCC enacted

temporary must-carry rules to further a governmental in-

terest in diverse programming which the FCC believed

was temporarily threatened by an alleged “consumer mis-

perception” that cable would always carry all broadcast

signals. P.A. at 96a-100a. The Court of Appeals held

that, because neither empirical evidence nor sound reason-

ing justified the need or effectiveness of these new must-

carry rules, they could not pass constitutional muster

even under the more lenient O’Brien standard. P.A. at

28a.

Nonetheless, the NAB’s lead argument addresses the

standard of First Amendment protection to which cable

is entitled and takes as its starting point Quincy’s dis-

cussion of that issue. NAB Pet. at 12-13. But neither

Quincy nor the court below purported to decide the

“vexing question” of what “level of First Amendment

protection [is] due a cable television operator.” Century

Communications, P.A. at 14a-15a; Quincy, 768 F.2d at

1454. Rather, both decisions held that the must-carry

rules presented for review were unconstitutional under

the O’Brien standard—the standard the FCC argued

should be applicable. Century Communications, P.A. at

28a; Quincy, 768 F.2d at 1463. An “either-broadcasting-

or-print-model dichotomy’— which the NAB invites the

Court to examine as “suspect’”—was precisely the “flavor-

ful” analogy which the Court of Appeals declined to

utilize in analyzing the constitutional question presented

to it. Century Communications, P.A. at 13a-15a.

3 At one point in its petition, the NAB seems to suggest that the

must-carry rules implicate no First Amendment concerns at ll

because cable systems can safely be treated, at least in part, as

passive common carriers for the carriage of broadcast signals.

NAB Pet. at 14-15. This theory was rejected by the FCC below and

by this Court in United States v. Southwestern Cable Co., 392 U.S.

157, 169 n.29 (1968), on which petitioners substantially rely. See

7

Similarly, the petitioners ignore the rationale advanced

by the FCC in support of its regulations. The petitioners

seek to reinstate must-carry rules by conjuring some

threat to local broadcasting if an operator’s decision to

carry a broadcast signal is dictated by the market

rather than the FCC. UCC Pet. at 11-17; CPB Pet. at

22-25; NAB Pet. at 26-27; INTV Pet. at 26-28. But this

rationale was never offered by the FCC as a justification

for its temporary must-carry rules, and accordingly was

never reviewed by the court below. Indeed, while the.

permanent must-carry rules examined and rejected in

Quincy were defended for their alleged protection of local

broadcasting, in these proceedings the FCC expressly dis-

avowed reliance on such a rationale to justify its tem-

porary must-carry rules. P.A. at 96a-97a. See also P.A.

at 9a.

The FCC’s abandonment of an earlier justification

presents no issue warranting review. It does not, as the

petitioners suggest, create a conflict with this Court’s

opinion in United States v. Southwestern Cable Co., 392

U.S. 157 (1968). See UCC Pet. at 11; CPB Pet. at 25;

NAB Pet. at 18; INTV Pet. at 13. In Southwestern, the

Court emphasized that it was not ruling on the validity

of specific FCC rules for cable television. 392 U.S. at

167. Instead, the Court merely upheld the general au-

thority of the FCC to regulate cable, in part because the

FCC had “reasonably concluded” that regulation of cable

was necessary to advance the FCC’s mandate to foster

a system of local broadcasting. 392 U.S. at 173-74. See

also FCC v. Midwest Video Corp., 440 U.S. 689, 708-09 (1979).

Absent direct government intrusion via the must-carry rules, cable

operators actively exercise editorial judgment in the choice and mix

of broadcast stations they carry in conjunction with other cable

programming sources. See City of Los Angeles v. Preferred Com-

munications, Inc., 476 U.S. 488, 494-95 (1986). In any event, the

Cable Communications Policy Act of 1984 firmly establishes that

cable is not a common carrier. 47 U.S.C. § 541(c).

8

47 U.S.C. § 307(b). What the Court did not do was ad-

dress the constitutionality of must-carry rules (or any

other FCC regulation); suggest that the governmental

interest in local broadcasting was a statutory command

for must-carry rules; or hint that the FCC was not free

to reevaluate the competing interests raised by must-

carry rules in light of changed circumstances and evolv-

ing technology.*

The FCC’s abandonment of its earlier rationale for

must-carry rules also makes illusory any supposed conflict

between the Court of Appeals’ decision and Black Hills

Video Corp. v. FCC, 399 F.2d 65 (8th Cir. 1968). In

Black Hills, the Eighth Circuit upheld permanent must-

carry rules purportedly designed to preserve local broad-

casting.» 399 F.2d at 71-72. There can be no conflict

between the Black Hills decision and the decision below

because the two courts were analyzing different rules

which the FCC sought to justify on the basis of differ-

4 These include, in particular, the development of cable television

into a creator and distributor of its own programming and the

continued development of UHF and educational broadcasting. Both

developments have decreased any legitimate concern about the

vitality of local programming, while cable’s development as a pro-

gramming source has elevated the First Amendment implications of

must-carry rules. Furthermore, as the FCC found, must-carry rules

impede other statutory goals including those set forth in the Cable

Communications Policy Act, 47 U.S.C. § 521, enacted long after the

decision in Southwestern. See P.A. at 233a.

5 The Court’s statement in United States v. Midwest Video Corp.,

406 U.S. 649, 659 n.17 (1972) (plurality) that Black Hills “correctly

upheld” the must-carry rules was subsequently identified as dicta

in FCC v. Midwest Video Corp., 440 U.S. 689, 697 n.7 (1979). In

that same decision, the Court affirmed an Eighth Circuit decision in

which the Court of Appeals itself undercut the precedential value

of Black Hills by adopting reasoning inconsistent both with the

earlier decision and with petitioners’ current argument. Midwest

Video Corp. v. FCC, 571 F.2d 1025, 1053-57 (8th Cir. 1978). See

P.A. at 139a n.134.

9

ent interests. See Century Communications, P.A. at 16a-

18a & n.4.

Indeed, even Quincy did not foreclose FCC reliance

upon the preservation of local broadcasting as support

for must-carry rules. 768 F.2d at 1459. Quincy held

merely that the FCC must supply appropriate support

for any such rationale. Jd. The FCC’s subsequent rejec-

tion of the interests of local broadcasting as support for

must-carry rules was an administrative determination of

the sort petitioners elsewhere fervently support.*

The rationale that the FCC relied on to justify the

temporary must-carry_rules—the maintenance of pro-

gramming diversity while a consumer misperception is

corrected—raises no issue warranting this Court’s atten-

tion. As the Court of Appeals found, there is no evidence

or sound reasoning suggesting that either the problem

exists or the proposed cure is appropriate. P.A. at 28a.

But more importantly here, the identified problem (a

consumer misperception) and solution (temporary must-

carry rules) have anything but “profound implications

for the regulation of electronic communications.” NAB

Pet. at 11.

The problem is one the FCC itself identifies as tem-

porary and which by the inherent logic of its reasoning

will be exacerbated, not solved, by continuing must-carry

rules. See P.A. at 110a-lla. If any misperception ex-

*It is well-established that an agency can change its interpreta-

tion of how best to further the governmental interests with which

it has been charged after carefully reviewing evidence that cir-

cumstances have changed, a recognition that it is changing course

and an explanation of the reasons for the change. E.g., Greater

Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.

1970), cert. denied, 403 U.S. 923 (1971); Black Citizens for a

Fair Media v. FCC, 719 F.2d 407, 417-18 (D.C. Cir. 1983), cert.

denied, 467 U.S. 1255 (1984).

10

ists, five more years of must-carry rules will simply rein-

force such a misperception and delay the use of input-

selector switches. P.A. at 27a. At the same time, must-

carry rules stand likely to decrease consumers’ viewing

options by requiring cable operators to provide program-

ming available off-air at the expense of programming

available only via cable.

The solution is one which each petitioner takes pain

to describe as modest. UCC Pet. at 20; CPB Pet. at 21-

22; NAB Pet. at 29; INTV Pet. at 18. The temporary

must-carry rules apply to only some cable operators, ben-

efit only some broadcasters, and would exist for only five

years. P.A. at 180a-82a, 184a. Moreover the Court of

Appeals never ruled that these or any other must-carry

rules are per se unconstitutional. P.A. at 28a. It ruled

only that the FCC must offer evidence in their support.

Id. Thus, neither the fact that these temporary regula-

tions were struck down by the Court of Appeals nor the

reasoning used to achieve that result raises a substantial

issue warranting review.

II. No Substantial or Important Issue Concerning The

Deference To Be Afforded Agency Discretion Is

Presented.

Each petitioner’s request for review depends, in large

- measure, upon an effort to portray the Court of Appeals

as having “substituted its judgment fer that of the

FCC.” CPB Pet. at 17. See also NAB Pet. at 22; INTV

Pet. at 18-19. Central to this effort is the petitioners’

assertion that the substantial deference normally due

agency factual determinations should be afforded to the

FCC’s decision even though it affects First Amendment

rights. CPB Pet. at 17-22; NAB Pet. at 21-26; INTV

Pet. at 19-22. Thus, the petitioners argue, the Court of

Appeals erred when it invalidated the must-carry rules

because the FCC “merely posit{ed] the existence of the

disease sought to be cured” without adducing believable

11

evidence on the record. P.A. at 26a (quoting Quincy,

768 F.2d at 1455). See CPB Pet. at 12-17; NAB Pet.

at 26-29; INTV Pet. at 19-23.

To the extent the petitioners assert that governmen-

tal actions affecting First Amendment rights should be ac-

corded the same deference as actions involving purely

technical matters, they are wrong. ‘Where a law is sub-

jected to a colorable First Amendment challenge, the

rule of rationality which will sustain legislation against

other constitutional challenges typically does not have

the same controlling force.” City of Los Angeles v. Pre-

ferred Communications, Inc., 476 U.S. 488, 496 (1986).

Cf. Schad v. Borough of Mount Ephraim, 452 U.S. 61,

77 (1981) (Blackmun, J. concurring) (“the presumption

of validity that traditionally attends a local government’s

exercise of its zoning powers carries little, if any, weight

where the zoning regulation trenches on rights of ex-

pression protected under the First Amendment’”’).

Moreover, even deference to a supposed agency exper-

tise could not save the FCC’s actions in this case. In the

absence of empirical evidence to the contrary, common

sense dictates that people are able to quickly grasp the

proposition that an antenna is necessary to receive over-

the-air signals not carried on cable. No case cited by the

petitioners suggests that without empirical evidence or at

least sound reasoning an agency may base regulations

burdening free speech on a counter-intuitive model of hu-

man behavior.

The only case cited by petitioners dealing in more than

passing language with the level of deference to be paid

to a governmental evaluation of the interests served by a

regulation or statute affecting free speech is City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).7

7 The majority of the cases petitioners rely upon either raised no

First Amendment. issue at all, (F.9., Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971) (decision to build interstate

highway); Vermont Yankee Nuclear Power Corp. v. Natural Re-

12

The Renton Court recognized that a city was entitled to

rely on studies and the experience of other cities to es-

tablish the substantiality of its governmental interest.

475 U.S. at 50-52. It did not hint that a city could rely

on unsupported predictions and conjecture, as the FCC

did. Id.

The petitioners also argue that the Court of Appeals

erred in rejecting the FCC’s selection of five year must-

carry rules as the most appropriate mechanism to serve

the governmental interest asserted. CPB Pet. at 18-22;

NAB Pet. at 21-29. However, the Court of Appeals was

careful to make explicit that ‘“‘we do not base our decision

on any judgment as to the relative desirability of these

alternative proposals.” P.A. at 27a-28a n.6. Rather, it

focused, as O’Brien required, on whether the new in-

terim must-carry rules were narrowly tailored to achieve

the goals identified by the agency. P.A. at 26a-28a. The

Court of Appeals’ decision was, therefore, wholly con-

sistent with this court’s holdings in Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 299 (1984) and

United States v. Albertini, 472 U.S. 675, 689 (1985),

that courts are not to choose the most appropriate method

for serving a substantial governmental interest.

sources Defense Council, Inc., 435 U.S. 519 (1978) (licensing of

nuclear reactors)) or did not involve a dispute over whether the

governmental interest was substantial and threatened by the ex-

pressive activity regulated. E.9., Clark v. Community for Creative

Non-Violence, 468 U.S. 288 (1984); United States v. Albertini, 472

U.S. 675 (1985). The dispute in the latter cases was over the con-

stitutionality of the mechanisms chosen to serve the governmental

interest. For example, the Clark Court assumed without debate the

existence of a substantial governmental interest in protecting na-

tional parks and examined the asserted justification for the mecha-

nism relied upon by the government to serve that interest. 468 U.S.

at 296, 299. The Albertini Court also assumed a governmental in-

terest in maintaining the security of military installations and ex-

amined the governmental mechanism used to protect the military

base at issue. 472 U.S. at 688-89.

13

Petitioners’ final argument is that the Court of Ap-

peals erred in its review of the administrative record.

CPB Pet. at 12-14; NAB Pet. at 26-29. However, the

responsibility for assessing a record to determine whether

agency findings are supported by the evidence is “pri-

marily” that of the Court of Appeals: “This Court will

intervene only in what ought to be the rare instances

where the standard appears to have been misapprehended

or grossly misapplied.” Mobil Oil Corp. v. FPC, 417 US.

283, 310 (1974) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 491 (1951) ).

Even a brief review of the record demonstrates that

this case is far from the rare instance in which review

is warranted. There was no evidence or plausible rea-

soning to suggest that cable subscribers will need five

years—enough time for a sixteen year old to not only

learn to drive but also to graduate from college—to learn

that they must use a switch to turn to off-air reception

and an antenna to receive broadcasts by local television

stations not carried on their cable system.* Instead, as

5 CPB claims the Court of Appeals ignored another FCC justifica-

tion for the five-year rules—that technical improvements were nec-

essary for input-selector switches. CPB Pet. at 13-14. CPB cites

for this proposition the FCC Report and Order, P.A. at 128a. The

FCC essentially repudiated this point on reconsideration, when it

held current switches to be adequate to the job with “relatively

minor modifications.” See P.A. at 236a. While the other petitioners

claim switches will never work, this argument, of course, conflicts

with their fervent support for FCC expertise elsewhere. UCC Pet.

at 14 n.18; NAB Pet. 25-29; INTV Pet. at 24-25. In any event, at

the time the FCC adopted its input-selector switch rules, it in-

stituted a proceeding to establish technical standards for them and

has now issued a Report and Order in that proceeding. None of the

petitioners other than CPB participated in that proceeding, where

issues about the technical performance of input-selector switches

could have been raised, and they should not be heard to complain

now about the technical capability of those switches. See Report

and Order, Gen. Docket No. 87-107, 2 FCC Red 7231, 7238 (1987)

(list of commenting parties).

14

the Court of Appeals pointed out, the FCC itself supplied

evidence that such a five-vear tutorial was not necessary

because consumers were already becoming accustomed to

switching between alternative program input sources.

P.A. at 23a-24a.° Indeed, a five-year transition would

only delay the “inevitable, but almost certainly brief”

period during which cable subscribers were weaned from

reliance on must-carry rules.’® P.A. at 27a.

The Court of Appeals was also correct in refusing to

credit the FCC’s assumption that, in the absence of must-

carry rules, cable companies would cease carriage of

significant numbers of local broadcast stations—despite

the fact that cable operators had not done so in the 16-

month period between the Quincy decision and the time

the temporary must-carry rules became effective.'' P.A.

® Although not mentioned by the Court of Appeals, Mr. Leghorn

pointed out in his pleadings that the FCC's rationale also con-

tradicted explicit findings in other proceedings by the FCC, based

on “considerable evidence,” that viewers already take “significant

measures,” such as improved antennas, to receive desirable tele-

vision signals if they do not receive them via cable service. Report

and Order in MM Docket No. 84-1296, 58 Rad. Reg.2d (P&F) 1, 28

(1985), remanded on other grounds sub nom,., American Civil Lib-

eration Union v. FCC, 823 F.2d 1554 (D.C. Cir. 1987), cert. denied

sub nom., Connecticut v. FCC, 56 U.S.L.W. 3644 (1988).

10 Petitioners continue to argue that cable television systems are

“gatekeepers” that block access to off-air television reception. See

CPB Pet. at 22-23; NAB Pet. at 12. The FCC explicitly rejected

this notion. It held that the “gatekeeper” sobriquet was the

result of the FCC’s pricr must-carry rules, which gave cable sub-

scribers no reason even to attempt to receive off-air local television

broadcast signals. P.A. at 99a. The root purpose of the FCC's

input-selector switch rules is to ensure the continued availability

to cable subscribers of off-air broadcast signals that are not carried

by cable systems. P.A. at 109a-10a.

11 Some petitioners argue that a significant number of broadcast

signals were deleted by cable systems when must-carry rules were

first held unconstitutional. UCC cites press reports that 196 non-

commercial stations were dropped. UCC Pet. at 16-17 n.21. INTV

cites an earlier CPB pleading to claim 185 cases of public stations

15

at 25a. The FCC itself appears uncertain of its own

data on this point because, without waiting for the re-

sults of petitions before this Court, it has already com-

menced yet another proceeding to obtain evidence whether

broadcast signals have been dropped by cable systems and

what harm might arise from such a result. Notice of

Inquiry, MM Docket No. 88-138, adopted March 24, 1988

(FCC Rep. No. DC-1134).”

In short, by any standard except blind deference to

administrative determinations, the FCC simply failed to

justify under the O’Brien standard any rationale for its

temporary must-carry rule. Thus, the Court of Appeals’

treatment of the O’Brien standard violates no constitu-

tional principles and raises no important or substantial

issue this Court should review.

being deleted. INTV Pet. at 17 n.32. Neither CPB in its brief nor

the FCC in its decisions relied on these figures. In the proceedings

below, the National Cable Television Association (“NCTA”) ana-

lyzed the alleged instances of noncommercial stations being deleted

and pointed out that the numbers were unreliable. These numbers

counted many stations that never had been carried, were not entitled

to carriage under the old rules or had even requested deletion. Reply

of NCTA in MM Docket No. 85-349, March 2, 1987 at 6, n.5 and

Attachment B (Court of Appeals J.A. at 618, 625-29).

12 The fact that the FCC is currently in the process of seeking

to gather the evidence it lacked in this proceeding and has not yet

received, much less evaluated comments in that proceeding, is alone

a sufficient reason for denying the petitions now before this Court.

16

CONCLUSION

The petitions should be denied.

Respectfully submitted,

JAMES L. QUARLEsS III *

WILLIAM G. MCELWAIN

HALE AND DORR

1455 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 393-0800

Attorneys for Respondent

Richard S. Leghorn

* Counsel of Record

May 9, 1988