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

Sipreme Court, WS,

bik ED

MAY 25 1968

Nos. 87-1487, 87-1506, 87-1510, and 87-$551

POSEPH Fe SPANIOL, JR

ey

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

OFFICE OF COMMUNICATION OF

THE UNITED CHURCH OF CHRIST,

Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, et al.,

Respondents,

CORPORATION FOR PUBLIC BROADCASTING, et al.,

Petitioners,

ae

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, et al.,

Respondents,

NATIONAL ASSOCIATION OF BROADCASTERS,

Petitioner,

V.

CENTURY COMMUNICATIONS CORPORATION, e¢ al.,

Respondents,

ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC.,

Petitioner,

V.

CENTURY COMMUNICATIONS CORPORATION, et al.

Respondents.

On Petitions for Writs of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

JOINT REPLY BRIEF OF PETITIONERS NAB AND INTV

{Counsel For Individual Petitions Listed on Inside Front Cover]

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Or Counsel:

HeNRY L. BAUMANN

BENJAMIN F.P. IVINS

NATIONAL ASSOCIATION OF

BROADCASTERS

1771 N Street, N.W.

Washington, D.C. 20036

May 25, 1988

MICHAEL S. HORNE*

STEVEN F. REICH

COVINGTON & BURLING

1201 Penn. Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioner

National Association of

Broadcasters

J. LAURENT SCHARFF*

JAMES M. SMITH

ROBERT J. AAMOTH

PIERSON, BALL & DowD

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Attorneys for Petitioner

Association of Independent

Television Stations, Ine.

* Counsel of Record

TABLE OF CONTENTS

ii

TABLE OF AUTHORITIES

CASES: Page

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

Cir. 1968) ..........ccccccccsscssscccccscccccesssssessnsscssosnnees 8

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

(1984) ......cccccccceceseceesssenseeseeeeeesssesessseeesneeerensesees 7

Clark v. Community for Creative Non-Violence, 468

U.S. 288 (1984) ........cccssssccssesrereessssrceesssceeneees 3

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

Cir. 1978), aff'd, 440 U.S. 689 (1979) ............ 8

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

Cir. 1985), cert. denied, 476 U.S. 1169

(1986) ........sscccsssscesreeeceeesesesseresecrsesenneeensnsenenees passim

United States v. Albertini, 472 U.S. 675 (1985) .... 3

United States v. Midwest Video Corp., 406 U.S. 649

(1972) ......cccecccersssrcseccssersecscessssnssonsecscoscsssnsenseees

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

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

157 (1968) ..........sccccsssocrcssecserscssccssessseeseeeesees 3,7

STATUTES AND BILLS:

IS U.S.C. §$2101(a) ........-..cccscscccsccccecesssssereccscsssscceees 4

H.R. 4293, 100th Cong., 2d Sess. (1988) ............+- 5

OTHER:

Joint Petition of NAB and Association of Maximum

Service Telecasters, Inc., September 23, 1985,

in National Association of Broadcasters v.

Quincy Cable TV, Inc., 476 U.S. 1169 (1986)

(NO. 85-502) .......csscesseesseseseeseeessneseneenessensenseens 4

Memorandum for the Federal Respondents, Novem-

ber, 1985, in National Association of Broad-

casters v. Quincy Cable TV, Inc., 476 U.S. 1169

(1986) (No. 85-502) ......csscesceeseesseeereserseeeseeeenees 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1487

OFFICE OF COMMUNICATION OF THE UNITED CHURCH

OF CHRIST, Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, et al., Respondents,

No. 87-1506

CORPORATION FOR PUBLIC BROADCASTING, et al.,

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, et al., Respondents,

No. 87-1510

NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner,

w

CENTURY COMMUNICATIONS CORPORATION, et al., Respondents,

No. 87-1551

ASSOCIATION OF INDEPENDENT TELEVISION

STATIONS, INC., Petitioner,

Vv.

CENTURY COMMUNICATIONS CORPORATION, et al., Respondents.

On Petitions for Writs of Certiorari

to The United States Court of Appeals

for The District of Columbia Circuit

JOINT REPLY BRIEF OF PETITIONERS NAB AND INTV

:

;

2

Less than three years ago the Solicitor General

urged this Court not to address what he characterized

as the “sensitive constitutional issues” posed by the

then only lower court decision to hold that the FCC’s

longstanding “must carry” rules were invalid under

the First Amendment. Memorandum for the Federal

Respondents, p. 5, November 1985, in National As-

sociation of Broadcasters v. Quincy Cable TV, kme.,

476 U.S. 1169 (1986) (No. 85-502). At that time the

Solicitor General argued that: (1) the lower court had

left open the possibility that the FCC could craft new

rules that the Court of Appeals would accept, (2) the

FCC had concluded that it preferred to explore the

possibility of such new rules rather than seeking to

overturn the lower court decision and had recently

issued a rulemaking notice to that effect and (3)

“fi]f the Commission issues new must-carry

rules, the constitutionality of those rules will

be addressed by the court of appeals in the

first instance. This Court then would have

an opportunity to consider the issues raised

by petitioners in the context of rules that the

FCC considers necessary to further the pub-

lic interest.”

Id. at pp. 4-5. Some six months later, this Court

denied the petition in that 1985 case. Quincy Cable

TV, Ine. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert.

denied, 476 U.S. 1169 (1986). Now the Solicitor Gen-

eral’s 1985 prerequisites to review by this Court of

the underlying ‘‘sensitive constitutional issues’”’ have

all been realized. The FCC devoted much of 1986 and

the first half of 1987 to an effort to craft new must

carry rules it thought would satisfy the Quincy panel.

The constitutionality of those new rules has now been

3

addressed by the D.C. Circuit in the first instance.

And so, this Court now has the Opportunity to con-

sider the ‘‘sensitive constitutional issues” raised by

the Quincy petitioners, this time “in the context: of

rules that the FCC considers necessary to further the

public interest.”

Nonetheless, the Solicitor General has decided not

to follow the recommendation of the FCC to seek a

writ of certiorari and counsels once again against re-

view by this Court, even though he evidently would

contend that the lower court was clearly wrong in

the way it applied the O’Brien test.’ He asserts that

the present case does not have “sufficient practical

importance or legal significance” and amounts to only

a “limited legal dispute” not warranting this Court’s

attention. Memorandum for the Federal Respondents,

pp. 2, 5, May 1988.

Such a characterization of this case by the Solicitor

General is puzzling. The lower court has now twice

declared unconstitutional longstanding FCC rules

which this Court previously held the agency had the

statutory authority to adopt. United States v. South-

western Cable Co., 392 U.S. 157 (1968). Thus the lower

court’s result is tantamount to one of those relatively

of this Court. Memorandum for the Federal Respondents, pp.

2, 5, May 1988. Although called to the lower court’s attention,

those two cases were simply ignored by the D.C. Circuit. See

NAB Pet., pp. 23-24; INTV Pet., pp. 20-21. Apparently in the

D.C. Circuit, as matters now stand, United States v. Albertini,

472 U.S. 675 (1985), and Clark v. Community for Creative Non-

Violence, 468 U.S. 288 (1984), have no force or effect.

infrequent decisions in which Federal legislation is

held unconstitutional, and as to which there is a strong

presumption in favor of review by this Court. Cf 28

U.S.C. § 2101(a) (1982).

If the only issue presented by the petitioners in

this case were the lower court's refusal to follow this

Court’s recent precedents applying O’Brien, perhaps

a summary reversal and remand on the certiorari pa-

pers might well be more efficient than plenary review

by this Court.-But serious though it certainly is, the

lower court’s failure to follow this Court’s recent

teachings concerning the O’Brien standard is by no

means the only or even most important issue raised

by the petitions in the instant case. In addition, there

are those “sensitive constitutional issues,” as the So-

licitor characterized them in November, i985, per-

taining to Federal authority to regulate the use of

broadcast signals by cable television systems, which

the lower court’s decision inthis case once again

poses.”

The Solicitor General also counsels against review

in this case on the basis of a now all too familiar

refrain: The lower court’s decision addresses rules

that were only “interim” in nature,’ and does not

2 See Pet. App., pp. 14a-18a; NAB Pet., pp. i, 11-21; UCC

Pet., pp. i, 17-23; see also Joint Pet. of NAB and Association

of Maximum Service Telecasters, Inc., pp. i, 8-18, Sept. 23, 1985,

in National Association of Broadcasters v. Quincy Cable TV,

Inc., 476 U.S. 1169 (1986) (No. 85-502).

The FCC’s new rules were scheduled to remain in effect for

five years, until June 10, 1992.

Rome ea

prohibit an FCC attempt to develop yet another set

of must carry rules through yet another rulemaking

proceeding that might pass muster in the court of

appeals; indeed, the FCC has initiated an inquiry to

collect data regarding the availability of broadcast

signals on cable television systems in the wake of the

elimination of the Commission’s must carry rules. May

1988 Memorandum, p. 7.‘

The principal flaw in this argument is that Quincy

ana now its progeny constitute a serious impediment

to sound policymaking, whether by the FCC or by

Congress, because both those bodies must assume,

until this Court resolves the matter, that the D.C.

Circuit’s view of the First Amendment is correct.

Indeed, in this very case the FCC’s effort to accom-

modate Quincy became the basis on which the lower

court overturned the new rules. From the outset to

the conclusion of its 1986-87 rulemaking the FCC

struggled to find a rationale for regulation that the

Quincy panel might accept.* Ultimately it concluded,

rightly or wrongly, that Quincy dictated adoption not

* As the FCC’s recent Notice makes clear, the effort to gather

additional data pertaining to must carry stems from a Congres-

sional request that the agency undertake that information-col-

lecting task. That request is only one manifestation of ongoing

Congressional interest in the must carry issue. See also H.R.

4293, 100th Cong., 2d Sess. (1988). But the FCC Notice provides

no indication that the FCC, like the hapless but ever optimistic

would-be place kicker in the comic strip, is willing to run up to

the ball once again based on the assurances of the impish little

girl that next time she might not yank the football away at the

last moment. Even if the FCC were willing to try again, it

ought to do so with a definitive resolution of the constitutional

issues that only this Court can provide.

° See INTV Pet., pp. 23-25.

only of rules that were much narrower substantively,

but also that would have only a limited duration.* To

justify rules of limited duration, the FCC theorized

that must carry requirements could become unnec-

essary if cable television subscribers received ‘‘con-

sumer education’’ notices and A/B switches from cable

companies, even though the Commission had found

A/B switches inadequate only two years earlier. The

FCC explained this conversion by citing its ‘‘search

for acceptable solutions ... in the post-Quincy envi-

ronment.” Pet. App., p. 127a. The FCC also read

Quincy as requiring the agency to forsake entirely its

longstanding rationale for must carry rules—1.e., the

agency’s statutory responsibility to foster and safe-

guard the public’s unfettered access to locally oriented

television broadcast service. The FCC certainly can

be accused of being too optimistic in relying upon

A/B switches and in hoping that cable companies,

entities that have every economic incentive to per-

petuate dependence on cable reception, could be com-

pelled to eliminate that dependence.’ But standing

alone, the FCC’s suppositions along these lines were

harmless enough because when the FCC’s hopes

proved to be misplaced, new regulatory action could

be taken to extend the rules beyond the initial five-

year period.

The Court of Appeals, however, treating as estab-

lished fact the FCC’s suppositions about the possi-

bility of overcoming the competitive disadvantage

imposed on broadcast stations that are excluded from

cable retransmission, and freely substituting its own

predictive judgments and findings of fact for those

6 Pet. App., pp. 15la-154a, 247a-248a.

7 See INTV Pet., pp. 26-27.

of the agency on other issues, found the so-called

interim rules unconstitutional.

The ironic aspects of this spectacle, however, are

more than offset by the sobering consequences for

the American public, and for what is “demonstrably

a principal source of information and entertainment

for a great part of the Nation’s population.”’ United

States v. Southwestern Cable Co., 392 U.S. 157, 177

(1968). Cable television systems—on which over haif

the American public now relies for television recep-

tion—stand as a gateway between their customers and

each and every one of the local television broadcast

stations licensed to serve the public. Any broadcast

station that is not carried on cable is at a severe

competitive disadvantage vis-a-vis other broadcast sta-

tions and such other sources of television news and

information as the cable operator may select for

transmission into American homes. Only four years

ago this Court observed that the must carry rules

addressed this important issue by ‘“‘attempt[ing] to

strike a balance between protecting noncable house-

holds from loss of regular television broadcasting ser-

vice due to competition from cable systems and

ensuring that the substantial benefits provided by ca-

ble of increased and diversified programming are se-

cured for the maximum number of viewers.” Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984).

Although the lower court stated that it has not

created a totally impenetrable barrier to governmen-

tal regulation aimed at limiting the power of cable

- operators to act as private censors of local commercial

and noncommercial educational television service,

Quincy and the decision below greatly complicate the

task of the FCC and those in Congress who see the

better policy as one which assures the availability of

multiple sources of television service which are not

dependent on cable television operators for access to

viewers. The D.C. Circuit’s barriers to regulation rest

on a suspect platform, one that is inconsistent with

numerous decisions of this Court® and in direct con-

flict with a prior Eighth Circuit decision which this

Court later described as having ‘‘correctly upheld”

the must carry rules in the face of a First Amend-

ment challenge.? The issues raised by the petitions

have enormous public importance. Those issues are

not likely to go away, because both the FCC and the

Congress must continue to be concerned with the

threat posed by any enterprise that becomes a single

source for television service in the United States. To

date the FCC, the Congress and the public have not

had the benefit of an authoritative resolution of the

® See INTV Pet., pp. 12-16, 20-21; NAB Pet., pp. 12-19, 22-

24; UCC Pet., pp. 18-23; CPB Pet., pp. 14-21, 25-26.

® United States v. Midwest Video Corp., 406 U.S. 649, 659

n.17 (1972) (plurality opinion). The Solicitor urges that there is

no conflict with Black Hills Video Corp. v. FCC, 399 F.2d 65

(8th Cir. 1968), because subsequently the Eighth Circuit ‘‘cast

doubt” on its Black Hills decision. May 1988 Memorandum, p.

5, n.5. However, the Eighth’s Circuit’s subsequent discussion of

Black Hills was in the context of regulations mandating cable

access for nonbroadcast services; the Eighth Circuit held that

such rules were outside the FCC’s statutory authority because

they bore no nexus to broadcast signal retransmission which was

within the FCC’s authority. See Midwest Video Corp. v. FCC,

571 F.2d 1025, 1054 (8th Cir. 1978), affd, 440 U.S. 689 (1979).

This Court also recognized that critical distinction in affirming

the Eighth Circuit. See 440 U.S. at 700.

underlying constitutional issues, and only this Court

can provide that resolution.

Of Counsel:

HENRY L. BAUMANN

BENJAMIN F.P. IvINS

NATIONAL ASSOCIATION OF

BROADCASTERS

1771 N Street, N.W.

Washington, D.C. 20036

May 25, 1988

Respectfully submitted,

MICHAEL S. HORNE*

STEVEN F. REICH

COVINGTON & BURLING

1201 Penn. Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioner

National Association of

Broadcasters

J. LAURENT SCHARFF*

JAMES M. SMITH

ROBERT J. AAMOTH

PIERSON, BALL & DowpD

1200—18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Attorneys for Petitioner

Association of Independent

Television Stations, Inc.

*Counsel of Record