Opposition Brief — Syracuse Peace Council v. Federal Communications Commission

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No. 89-31

OCTOBER TERM, 1989

SYRACUSE PEACE COUNCIL, ET AL., PETITIONERS

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

JOHN G. ROBERTS, JR.

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ROBERT L. PETTIT

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications Commission

Washington, D.C. 20544

QUESTION PRESENTED

Whether the Communications Act of 1934, 47 U.S.C.

301 et seqg., requires the Federal Communications Com-

mission to retain the “fairness doctrine” notwithstanding

the Commission’s determination that the doctrine no

longer serves the public interest.

(1)

TABLE OF CONTENTS

Page

LES OS er l

Ng te RS a 2 ]

ETE 2

RI a ee 12

eee ee bk ad hh k dk a Ooo 0 2 0% 22

TABLE OF AUTHORITIES

Cases:

Brandywine-Main Line Radio, Inc., 24 F.C.C.2d

18 (1970), aff'd, Brandywine-Main Line Radio,

Inc. v. FCC, 473 F.2d 16 (D.C. Cir. 1972), cert.

UU, ES Bie PN EDTS) oo cece eee 3

Chicago Fed. of Labor, 3 F.R.C. Ann. Rep. 36

(1929), aff'd, Chicago Fed. of Labor v. FRC,

eS I, ee cee wee

Children’s Television Programming, 96 F.C.C.2d

634 (1984), aff'd, Action for Children’s Tele-

vision v. FCC, 756 F.2d 899 (D.C. Cir. 1985)... 20

Commercial TV Stations, 98 F.C.C.2d 1076 (1984),

reconsid. denied, 104 F.C.C.2d 358 (1986),

aff'd and remanded, Action for Children’s Tele-

vision v. FCC, 821 F.2d 741 (D.C. Cir. 1987)... 19, 20

Deregulation of Radio, 84 F.C.C.2d 968, reconsid.

denied, 87 F.C.C.2d 797 (1981), aff'd and re-

manded, Office of Communication of United

Church of Christ v. FCC, 707 F.2d 1413 (D.C.

eu s ss a's 0 4 Ocales 19-20

tN

(III)

IV

Cases — Continued: Page

Fairness Report, 48 F.C.C.2d 1 (1974), reconsid.

denied, 58 F.C.C.2d.69}. (1976), aff'd and re-

manded, NCCB v. FCC, 567 F.2d 1095 (D.C.

Cir. 1977), cert. denied, 436 U.S. 926 (1978) .... 2

FCC v. League of Women Voters, 468 U.S. 364

SG Pires oh eG Cone baka Gn eee ekk 5 3,4.

FCC v. National Citizens Comm. for Broadcasting,

Ses NO il Eis a 2 Ge ede ks eens 22

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

GD fons edin cess Abe e aa ee acest cukwe 18

FCC v. WNCN Listeners Guild, 450 U.S. 582

SO n.d Faia bud ads 6 kaos ose barnes 18, 21-22

Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep.

32 (1929), rev’d, Great Lakes Broadcasting Co.

v. FRC, 37 F.2d 993 (D.C. Cir.), cert. dismissed,

pe Re ee ee ee 2

Inquiry into Section 73.1910 of the Commission’s

Rules and Regulations Concerning the General

Fairness Doctrine Obligations of Broadcast

Licensees, In re, 102 F.C.C.2d 143 (1985) ..... ome, 7

Inquiry into Section 73.1910 of the Commission’s

Rules and Regulations Concerning Alternatives

to the General Fairness Doctrine Obligations of

Broadcast Licensees, In re, 2 F.C.C. Red 5272

(1987), reconsid. denied, 3 F.C.C. Red 2050

RF ERY SIME A RTS ask, "5 «hr lata ice nen peu aa a Ag A 10

LaMar Life Broadcasting Co., 38 F.C.C. 1143

oo de WRI eg ay nea a eee eee 20

Lar OMY, MOP. FISTS) 5 wc ccc cneee 16

Maier v. FCC, 735 F.2d 220 (7th Cir. 1984) ....... 14

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir.

SO ere Seed eg oes ree ee ew kha he 5, 6

Nationa! Broadcasting Co. v. United States, 319

a, eS ee a's Wee 0b ch oo e-s 18

Patsy Mink, 59 F.C.C.2d 987 (1976) ............ a 3

ee eam eer oon

Cases — Continued: Page

Public Interest Research Group v. FCC, 522 F.2d

1060 (Ist Cir. 1975), cert. denied, 424 U.S. 965

Lo ety ee ete eC ry bea 14

Public Media Center, 59 F.C.C.2d 494 (1976) ..... 3

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

RP RELSR oped rire ns is are eee e ee me 3, 10, 17, 18

Report on Editorializing by Broadcast Licensees,

SP lan EEN cA dace bkeccuseeheaee ss 2

Telecommunications Research & Action Center v.

FCC, 801 F.2d 501, reh’g denied, 806 F.2d 1!15

(D.C. Cir. 1986), cert. denied, 482 U.S. 919

SRE kav uate cele Ok hae eae en 6, 14, 15, 16, 18

Young People’s Ass’n for the Propagation of the

CPE RA. SR CRE 6 6c i vias cenecces 2

Constitution, statutes and regulations:

fe ee ee SS RP eee re ee 4

Act of Oct. 18, 1986, Pub. L. No. 99-500, 100

a ST vs wr warns ae eee eee ak ene 10

Communications Act of 1934, 47 U.S.C. 301 ef

seq.:

eG os ces co bude an Cee eee 9, 16, 17, 18

Fa SRD Svc ca cwse ou becuexs 13, 14, 17, 18

Miscellaneous:

135 Cong. Rec. D1135 (daily ed. Oct. 5, 1989) .... 13

H.R. 315, 101st Cong., Ist Sess. (1989) .......... 13

H.R. 3299, 101st Cong., Ist Sess. (1989) ......... 13

H.R. Rep. No. 1005, 99th Cong., 2d Sess. (1986) .. 10

H.R. Rep. No. 153, 101st Cong., Ist Sess. (1989) .. 13

Notice of Inquiry, 49 Fed. Reg. 20,317 (1984) ..... 3

TT

VI

Miscellaneous — Continued: Page

Repeal or Modification of the Personal Attack and

Political Editorial Rules, 48 Fed. Reg. 28,295

BOO Sse once hs Re s, Po O are e e 20

S. 577, 101st Cong., Ist Sess. RS ae eee 13

S. Rep. No. 141, 101st Cong., Ist Sess. (1989) .... 13

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-312

SYRACUSE PEACE COUNCIL, ET AL., PETITIONERS

V.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI &

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-72a)

is reported at 867 F.2d 654. The memorandum opinion

and order of the Federal Communications Commission

(Pet. App. 188a-281a) is reported at 2 F.C.C. Red 5043.

The memorandum opinion and order of the Federal Com-

munications Commission on reconsideration (Pet. App.

282a-306a) is reported at 3 F.C.C. Red 2035.

JURISDICTION

The judgment of the court of appeals (Pet. App.

73a-74a) was entered on February 10, 1989. The orders of

the court of appeals denying rehearing and rehearing en

(1)

email

2

banc were entered on April 25, 1989 (Pet. App. 75a, 76a).

By order dated May 15, 1989, the Chief Justice extended

the time for filing a petition for a writ of certiorari to and

including August 23, 1989. The petition for a writ of cer-

tiorari was filed on August 23, 1989. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1949, in its Report on Editorializing by Broad-

cast Licensees, 13 F.C.C. 1246 (1949), the FCC set forth

obligations that were thereafter known as the “fairness

doctrine.”' The fairness doctrine imposed a iwo-fold

obligation on broadcasters. Each licensee of a radio or

television broadcast station was required (1) to provide

coverage of vitally important controversial issues of in-

terest in the community served by the licensee, and (2) to

afford a reasonable opportunity for the presentation of

contrasting viewpoints on any controversial issue of public

importance covered by the licensee. See Fairness Report,

48 F.C.C.2d 1 (1974), reconsid. denied, 58 F.C.C.2d 691

(1976), aff'd in part and remanded in part, NCCB v. FCC,

567 F.2d 1095 (D.C. Cir. 1977), cert. denied, 436 U.S. 926

(1978). Failure to abide by these requirements could sub-

ject a licensee to sanctions ranging from an order requiring

' The Commission’s efforts to ensure that broadcasters were “fair”

in their coverage of controversial public issues can be traced to its

early decisions and those of its predecessor, the Federal Radio Com-

mission. See, e.g., Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep.

32 (1929), rev’d on other grounds, Great Lakes Broadcasting Co. v.

FRC, 37 F.2d 993 (D.C. Cir.), cert. dismissed, 281 U.S. 706 (1930);

Chicago Fed. of Labor, 3 F.R.C. Ann. Rep. 36 (1929), aff'd, Chicago

Fed. of Labor v. FRC, 41 F.2d 422 (D.C. Cir. 1930); Young People’s

Ass'n for the Propagation of the Gospel, 6 F.C.C. 178 (1938).

the licensee to remedy its programming deficiencies to an

order denying renewal of its license.?

In Red Lion Broadcasting Ce. v. FCC, 395 U.S. 367

(1969), this Court upheld the constitutionality of the

fairness doctrine. Relying on the FCC’s representation

that it had no evidence that the doctrine chilled speech, the

Court concluded that the doctrine would enhance, rather

than abridge, First Amendment goals. The Court added,

however, that if experience with the administration of the

doctrine “indicates that [it has] the net effect of reducing

rather than enhancing the volume and quality of cover-

age,” the doctrine’s “constitutional implications” would be

subject to reconsideration. /d. at 393. Such a reduction in

speech would be a “serious matter,” the*Court stressed,

since “the purposes of the doctrine would be stifled.”

Ibid.?

2. In 1984, the FCC began a comprehensive reex-

amination of the public policy and constitutional implica-

tions of the fairness doctrine. See Notice of Inquiry, 49

Fed. Reg: 20,317. Based on the “voluminous factual

record” compiled in that inquiry (which included more

than 100 written comments and two days of hearings

before the Commission), along with the Commission’s

2 See, e.g., Patsy Mink, 59 F.C.C.2d 987 (1976); Public Media

Center, 59 F.C.C.2d 494 (1976); Brandywine-Main Line Radio, Inc.,

24 F.C.C.2d 18 (1970), aff'd on other grounds, Brandywine-Main

Line Radio, Inc. v. FCC, 473 F.2d 16 (D.C. Cir. 1972), cert. denied,

412 U.S. 922 (1973).

> The Court reiterated the point more recently, stating that “were it

to be shown by the Commission that the fairness doctrine ‘[has] the

net effect of reducing rather than enhancing’ speech, we would then be

forced to reconsider the constitutional basis of our decision in [Red

Lion|.” FCC v. League of Women Voters, 468 U.S. 364, 378-379 n.12

(1984) (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 393

(1969)).

4

own “experience in administering the doctrine” over many

years and its “general expertise in broadcast regulation,”

the Commission concluded that the doctrine no longer

serves the public interest in access to diverse sources of in-

formation. Jn re Inquiry into Section 73.1910 of the Com-

mission’s Rules and Regulations Concerning the General

Fairness Doctrine Obligations of Broadcast Licensees, 102

F.C.C.2d 143, 147 (1985) [hereinafter 1985 Fairness

Report) (Pet. App. 77a, 81a). The Commission also ques-

tioned whether the doctrine remained consistent with the

First Amendment as it had been applied in Red Lion. Id.

at 82a-93a.

Although the Commission “questioned the permissibili-

ty of the [fairness] doctrine as a matter of both policy and

constitutional law” in the 1985 Fairness Report, it decided

not to eliminate or modify the doctrine in that proceeding.

Pet. App. 180a-18la. The Commission noted that the fair-

ness doctrine had been “a longstanding administrative

policy,” that “Congress [had] shown a strong although

often ambivalent interest” in it, and that this Court’s deci-

sion in FCC v. League of Women Voters, 468 U.S. 364

(1984), “demonstrated an interest in [the Commission’s]

examination of the constitutional and policy implications

underlying the fairness doctrine.” 1985 Fairness Report,

Pet. App. 18la. In view of “intense Congressional interest

in the fairness doctrine and the pendency of legislative

proposals,” thé Commission determined that it would be

inappropriate at that time to eliminate the fairness doc-

trine or to act on various proposals to modify or restrict it.

Ibid.4

* The Commission noted that a number of comments had addressed

the question whether the Commission had authority to eliminate or

substantially modify the fairness doctrine. Pet. App. I6la. It found

that Congress had not “explicitly codified the fairness doctrine prior

3. In the meantime, in 1984, acting on a complaint

filed by petitioner Syracuse Peace Council, the Commis-

sion concluded that television station WTVH in Syracuse,

New York, licensed to Meredith Corporation, had

violated the fairness doctrine. The Commission found that

the station had aired a series of editorial advertisements

that described the construction of a nuclear generating

plant as a “sound investment” for New York, without ade-

quately presenting contrasting viewpoints. Syracuse Peace

Council, 99 F.C.C.2d 1389, 1395-1401 (1985).

In a motion for reconsideration, Meredith claimed that

the fairness doctrine is unconstitutional. Adhering to the

course it had adopted in the /985 Fairness Report, the

Commission declined to consider Meredith’s constitu-

tional challenge. The Commission explained that it viewed

Congress and the courts as “more appropriate venues for

reacting to the constitutional question.” Syracuse Peace

Council, 59 Radio Reg.2d (P&F) 179, 182 (1985).

On review, the court of appeals upheld the

Commission’s determination that the station had not

satisfied the requirements of the fairness doctrine.

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987).

However, noting that the 1/985 Fairness Report had cast

“grave legal doubt on the fairness doctrine,” the court of

appeals held that the Commission was obligated to con-

sider Meredith’s constitutional challenge—unless the

to the 1959 Amendments to the Communications Act” and that the

doctrine did not “necessarily inhere| }] in the public interest standard

of the Communications Act.” /bid. The Commission characterized the

question whether the 1959 amendments codified the doctrine as a

“more difficult” one, but found that it need not reach the question in

view of its decision to await further congressional consideration of the

matter. /bid.; see id. at 82a, 180a. To facilitate further congressional

consideration, the Commission set forth at length the arguments on

both sides of the issue. /d. at 16la-180a.

6

Commission determined that “in light of its Fairness

Report it may not or should not enforce the [fairness] doc-

trine because it is contrary to the public interest.” 809 F.2d

at 873, 874. The court also noted that, in Telecommunica-

tions Research & Action Center v. FCC, 801 F.2d 501,

reh’g denied, 806 F.2d 1115 (D.C. Cir. 1986) (en banc),

cert. denied, 482 U.S. 919 (1987) [hereinafter TRAC}, it

had held that the fairness doctrine was not “mandated by

statute”; thus, the court observed, that ground for resolv-

ing the case no longer remained available to the Commis-

sion. 809 F.2d at 873 n.11. See note 4, supra.

4. a. Upon remand, the Commission again requested

comments from the public “on whether, in light of the

1985 Fairness Report, enforcement of the fairness doctrine

is constitutional and whether enforcement of the doctrine

is contrary to the public interest.” Syracuse Peace Council,

2 F.C.C. Red 794 (1987). An additional 50 comments were

received from a variety of interests. Pet. App. 20la. In

August 1987, the Commission issued its decision. Jd. at

188a-28la. The Commission concluded — based upon the

administrative record, the 1985 Fairness Report, the Com-

mission’s experience in administering the fairness doctrine,

its knowledge of the communications area, and fun-

damental constitutional principles — that “the fairness doc-

trine, on its face, violates the First Amendment and con-

travenes the public interest.” Pet. App. 190a.

The Commission noted that in its 1985 Fairness Report

it had “evaluated the efficacy of the fairness doctrine in

achieving its regulatory objective.” Pet. App. 23la. The

Commission reiterated the conclusons it had reached in

that report on the basis of “compelling evidence” — that the

operation of the doctrine “thwarts the purpose that it is

designed to promote” and that “[iJnstead of enhancing the

discussion of controversial issues of public importance,”

“the fairness doctrine, in operation, ‘chills’ speech.” /bid.

7

The Commission explained that the fairness doctrine

“provides broadcasters with a powerful incentive not to air

controversial issue programming above that minimal

amount required by the first part of the doctrine.” Pet.

App. 23la. It noted that the 1985 Fairness Report had

documented 60 instances in which the fairness doctrine in-

hibited broadcasters’ coverage of controversial issues, and

that self-censorship was not limited to individual pro-

grams, but extended to policies under which stations re-

fused to present editorials, to accept political adver-

tisements, or to air nationally produced programming

discussing controversial issues. Jd. at 233a-235a; see id. at

103a-122a. The Commission reaffirmed its finding in the

Fairness Report “that those specific instances of broad-

casters’ conduct were broadly illustrative of a prevalent

reaction to the doctrine and that the record from the in-

quiry overwhelmingly demonstrated that broadcasters act

upon those incentives and limit the amount of controver-

sial issue programming presented on the airwaves.” Jd. at

233a-234a. The Commission also noted that enforcement

actions, such as this proceeding, provide substantial

disincentives to broadcasters. Jd. at 235a.

The Commission found that isolated statements that in-

dividual broadcasters were not inhibited by the fairness

doctrine did not “demonstrate generally an absence of a

‘chilling effect’ in the broadcasting industry.” Pet. App.

237a. The Commission continued (ibid.):

No broadcaster indicated to us that its coverage of

controversial issues has increased as a result of the

fairness doctrine, and absent such evidence to offset

the numerous instances of chill that we have iden-

tified, we can only conclude that the overa// net effect

of the doctrine is to reduce the coverage of controver-

sial issues of public importance, in contravention of

the standard announced in Red Lion.

8

The Commission turned next to the question whether

the fairness doctrine was narrowly tailored to serve a

substantial government interest. The Commission noted

that although it had once taken the position that it had an

obligation to oversee programming to ensure the avail-

ability of diverse viewpoints to the public, the 1985

Fairness Report had “repudiated the notion that it was

proper for a governmental agency to intervene actively in

the marketplace of ideas.” Pet. App. 238a. The Commis-

sion reiterated the report’s finding that the fairness doc-

trine “represents an intrusion into a broadcaster’s editorial

discretion, both in its enforcement and in the threat of en-

forcement.” Id. at 239a.

The Commission also determined that the doctrine is no

longer necessary to ensure the availability to the public of

diverse viewpoints and information. The Commission

relied on the finding of the 1985 Fairness Report that there

had been an “explosive growth in both the number and

types” of information outlets since the Red Lion decision

(Pet. App. 241a; see id. at 130a-155a), and noted that the

advent and increased availability of other technologies

such as cable and satellite television services had further

enhanced the public’s access to media outlets (id. at 242a).

The Commission reaffirmed the conclusion of its 1985

Fairness Report that “the fairness doctrine is not necessary

in any market to ensure that the public has access to

diverse viewpoints from today’s media outlets.” /d. at

244a-24Sa. ; :

Taking all of these determinations into account, the

.Commission concluded (Pet. App. 247a):

In sum, the fairness doctrine in operation disserves

both the public’s right to diverse sources of informa-

tion and the broadcaster’s interest in free expression.

Its chilling effect thwarts its intended purpose, and it

9

results in excessive and unnecessary government in-

tervention into the editorial processes of broadcast

journalists. We hold, therefore, that under the con-

stitutional standard established by Red Lion and its

progeny, the fairness doctrine contravenes the First

Amendment and its enforcement is no longer in the

public interest.

The Commission vacated its earlier order and dismissed

the complaint against Meredith. Jd. at 278-279a.°

b. In a subsequent decision, the Commission denied

petitions for reconsideration. Pet. App. 282a-306a. The

Commission rejected the contention that the fairness doc-

trine had been codified in a 1959 amendment to Section

315 of the Communications Act, 47 U.S.C. 315, or that it

was inherent in the Act’s general public interest standard.

The Commission explained that it was bound by the D.C.

Circuit’s holding in TRAC that Section 315 of the Act did

not codify the fairness doctrine, and it added that since the

doctrine is unconstitutional, the doctrine’s elimination is,

“a fortiori, consistent with, not violative of, [the Commis-

sion’s] public interest mandate.” Pet. App. 290a-292a &

n.33.

The Commission also rejected the argument that it was

required to consider and adopt alternative means of en-

forcing the doctrine, rather than eliminating it altogether.

In a separate proceeding, the Commission noted, it had

concluded that while there were alternatives that were

somewhat preferable to the then current method of en-

forcing the doctrine, the alternative that “best achieves

‘> The Commission opinion explored at some iength a “preferred

constitutional approach” thai it believed should apply in the present

context. Pet. App. 247a-277a. In view of the court of appeals’ disposi-

tion of the case on non-constitutional grounds, it is unnecessary to ad-

dress that aspect of the decision.

10

the First Amendment principles underlying the doctrine,

and consequently, [the Commission’s] public interest ob-

jeetives, would be an unregulated marketplace of ideas.”

Pet. App. 295a.°

Finally, the Commission determined that it had not

erred in eliminating the first prong of the doctrine, under

which broadcasters were obligated to address vitally im-

portant controversial issues. The Commission explained

that it did not consider the two prongs of the doctrine

severable and that, even if they were, the Commission

“would not choose, as a policy matter, to enforce such a

revised first prong divorced from the second prong.” Pet.

App. 30la. “Having eliminated the chilling effects most

directly associated with the second prong of the doctrine,”

the Commission continued, “coverage of controversial

® In 1986, Congress directed the Commission to conduct an inquiry

to “consider alternative means of administration and enforcement of

the Fairness Doctrine and to report to the Congress by September 30,

1987.” Act of Oct. 18, 1986, Pub. L. No. 99-500, 100 Stat. 1783-67;

see also H.R. Rep. No. 1005, 99th Cong., 2d Sess. (1986). In a com-

prehensive report adopted in August 1987, the Commission examined

numerous alternatives to abandonment of the fairness doctrine and

concluded that none eliminated the doctrine’s chilling effect and its

tendency to promote governmental intrusion into the editorial judg-

ments of broadcasters. /n re Inquiry into Section 73.1910 of the Com-

mission’s Rules and Regulations Concerning Alternatives to the

General Fairness Doctrine Obligations of Broadcast Licensees, 2

F.C.C. Red 5272 (1987), reconsid. denied, 3 F.C.C. Red 2050 (1988).

Accordingly, the Commission determined that only elimination of the

fairness doctrine “is most likely to achieve the purpose of the fairness

doctrine — namely, ‘to preserve an uninhibited marketplace of ideas in

which truth will undoubtedly prevail.’ ” 2 F.C.C. Red at 5276 (quoting

Red Lion, 395 U.S. at 390). The Commission also concluded that its

analysis of alternatives to the fairness doctrine “strengthen{ed] [its]

belief that the fairness doctrine disserves the public interest and con-

travenes fundamental principles of free speech.” 2 F.C.C. Red at

* §295.

1]

issues will be forthcoming naturally, without the need for

continued enforcement of the first prong.” Jd. at 303a.

5. The court of appeals affirmed. Pet. App. la-72a.

All three members of the panel filed opinions. All three

upheld the Commission’s findings that the obligation to

provide contrasting views chills speech and that the

availability of new media outlets and technology makes

that obligation unnecessary to ensure that the public has

access to diverse viewpoints. Jd. at 13a-22a, 65a-70a.

However, different majorities furnished the court’s

holdings with respect to that aspect of the fairness doctrine

and the obligation to provide coverage of controversial

issues.’

a. With respect to the second prong of the doc-

trine—the requirement that a broadcaster air conflicting

views—Chief Judge Wald joined in portions of Judge

Williams’ opinion. Together, they held that the Commis-

sion’s conclusion that that prong of the fairness doctrine

does not serve the public interest was supported by the

record; that conclusion, they also determined, provides a

sufficient non-constitutional basis for the Commission’s

decision to eliminate the obligation to provide contrasting

views. Judge Williams and Chief Judge Wald explained

that the “Commission’s factual judgments here are almost

entirely predictive — statements about the overall effects of

a policy on licensee and others.” Pet. App. 14a. In such

circumstances, they continued, “we owe great deference to

the Commission’s judgment.” Jd. at 13a. In a separate

opinion, Judge Starr also affirmed the Commission’s find-

ings that the fairness doctrine reduces coverage of con-

troversial issues and is unnecessary to assure the public’s

’ Ail three members of the panel agreed that the TRAC decision

was binding on the question whether the fairness doctrine is required

by statute. Pet. App. 7a, 33a, 50a n.6.

12

access to divergent views. Jd. at 62a. However, he con-

cluded that the Commission’s determination that the sec-

ond prong of the fairness doctrine is no longer valid

should be reviewed and upheld on constitutional grounds.

Id. at 42a-72a.

b. Judges Williams and Starr concluded that the Com-

mission’s decision not to preserve the first prong of the

fairness doctrine —the requirement that broadcast stations

provide coverage of vitally important controversial issues

in their communities—was not arbitrary and capricious.

Pet. App. 27a-32a; id. at 70a-72a. Both found the Com-

mission’s determination that elimination of the second

prong would make the first prong unnecessary to be rea-

sonable, particularly in view of the Commission’s findings

as to the increasing diversity of outlets and programming.

Ibid. Chief Judge Wald dissented from that aspect of the

decision. Jd. at 33a-4la.

ARGUMENT

Congress is presently considering legislation that could

deprive the questions presented by this case of any future

significance. Moreover, even if Congress should choose

not to act, and thus to leave the decisions in TRAC and

this case undisturbed, this case would not call for the

Court’s review. Given the basis on which the panel upheld

the Commission’s decision, the only questions properly

presented are narrow — whether the Communications Act

compels the Commission to apply the fairness doctrine

and, if not, whether the Commission’s decision to aban-

don the doctrine was arbitrary and capricious on the ad-

ministrative record. The two courts of appeals that have

addressed the issue have held that the Communications

Act does not require the Commission to adhere to the fair-

ness doctrine. That conclusion is well founded, and is en-

13

tirely consistent with the decisions of this Court, including

Red Lion. Further review is therefore not warranted.

1. As petitioners note (Pet. 17-18 & nn.24-25, 22 &

n.36), Congress has given substantial attention to the

fairness doctrine during its last two Sessions. This

legislative activity is consistent with the “intense Congres-

sional interest” in the issue that the Commission noted in

1985. Pet. App. 18la. Legislation that would have codi-

fied the fairness doctrine as part of the Communications

Act was adopted by both the House and Senate in 1987,

but was vetoed by the President. See Pet. 18 n.25. Similar

legislation has been introduced this year, and has been re-

ported favorably by committees in both Houses.* The

enactment of this legislation would deprive the question

presented by the petition, which involves the construction

of the present Act, of any future significance.

2. Even apart from the possibility of congressional ac-

tion, this case does not call for the Court’s review.

a. Petitioners argue that the fairness doctrine was

codified in a 1959 amendment to Section 315(a) of the

Communications Act, 47 U.S.C. 315(a). However, the

only two circuits that have addressed that question directly

have concluded that the doctrine is not mandated by Sec-

® See H.R. 315, 101st Cong., Ist Sess. (1989); H.R. Rep. No. 153,

101st Cong., Ist Sess. (1989); S. 577, 101st Cong., Ist Sess. (1989); S.

Rep. No. 141, 10ist Cong., Ist Sess. (1989). The House bill was in-

cluded as part of the Omnibus Budget Reconciliation Act of 1989,

H.R. 3299, 101st Cong., ist Sess. (1989). It was passed by the House

on October 5, 1989. See 135 Cong. Rec. D1135 (daily ed. Oct. 5,

1989).

% Should legislation be enacted while the case remains pending, the

Commission and the court of appeals should have an opportunity to

consider its application to this case and any constitutional questions

that it might present. We disagree, therefore, with petitioners’ sugges-

tion (Pet. 22 n.37) that the passage of legislation could provide a basis

for expedited review in this Court.

14

tion 315(a). TRAC, 801 F.2d at 517-518, Public Interest

Research Group v. FCC, 522 F.2d 1060, 1066-1067 (ist

Cir. 1975), cert. denied, 424 U.S. 965 (1976).'°®

As we explained in our brief in opposition to the peti-

tion for certiorari in TRAC, the Commission has “recog-

nized that there is no easy answer to the question whether

Congress has enacted the fairness doctrine as positive law

or simply approved the doctrine as a permissible exercise

of the Commission’s authority to regulate broadcasters in

the public interest.” Brief for the Federal Respondents in

Opposition at 8, in Telecommunications Research &

Action Center v. FCC, No. 86-1371; see Pet. App.

166a-180a. Nevertheless, it remains our view that “the

language of the statute and the legislative history, as inter-

preted by this Court in Red Lion, indicate that Congress

has not codified the fairness doctrine as positive law.”

TRAC Br. in Opp. at 8-12.

On its face, Section 315(a)’s reference to the fairness

doctrine does no more than protect the doctrine from in-

ferences that might otherwise be drawn from the subsec-

'0 Petitioners argue (Pet. 15) that the D.C. Circuit’s interpretation

of Section 315(a) of the Communications Act conflicts with the

Seventh Circuit’s “holding” in Maier v. FCC, 735 F.2d 220 (1984).

However, in Maier, the court had no occasion to consider whether the

_ Commission was obligated by statute to apply the fairness doctrine. In

the course of considering whether the denial of a fairness doctrine

complaint was a reviewable order, the court in Maier made a passing

reference to this Court’s observation in Red Lion that Congress “ ‘has

ratified [the fairness doctrine] with positive legislation.’ ” /d. at 225

n.4. This reference adds nothing whatever to Red Lion. As we shall

explain (pp. 16-17, infra), Red Lion stands only for the proposition

that Section 315(a) recognized the Commission’s authority to promul-

gate the fairness doctrine, and not that the Commission was obligated

to do so. There is no conflict between Maier and the decision below on

the question presented by this case.

15

tion’s preceding sentence.'' As TRAC explained, “The

language, by its plain import, neither creates nor imposes

any obligation, but seeks to make it clear that the statutory

amendment does noi affect the fairness doctrine obliga-

tion as the Commission had previously applied it.” 801

F.2d at 517. The proviso thus does not deprive the Com-

mission of authority it has from other sources to eliminate

or modify the fairness doctrine. Indeed, on its face, Section

315(a) refers to the application of the fairness doctrine only

“in connection with the presentation of newscasts, news

interviews, news documentaries, and on-the-spot coverage

of news events,” but not editorial advertising of the type

'! Section 315(a) provides (emphasis added):

If any licensee shall «it any person who is a legally qualified

candidate for any public office to use a broadcasting station, he

shall afford equal opportunities to all other such candidates for

that office in the use of such broadcasting station: Provided,

That such licensee shall have no power of censorship over the

material broadcast under the provisions of this section. No

obligation is imposed under this subsection upon any licensee to

allow the use of its station by any such candidate. Appearance by

a legally qualified candidate on any —

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the

candidate is incidental to the presentation of the subject or

subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (in-

cluding but not limited to political conventions and activities

incidental thereto),

shall not be deemed to be use of a broadcasting station within the

meaning of this subsection. Nothing in the foregoing sentence

shall be construed as relieving broadcasters, in connection with

the presentation of newscasts, news interviews, news docu-

mentaries, and on-the-spot coverage of news events, from the

Obligation imposed upon them under this chapter to operate in

the public interest and to afford reasonable opportunity for the

discussion of conflicting views on issues of public importance.

'6

that triggered this case. That limitation on the proviso

confirms that its purpose is only to counteract an earlier

sentence that has the same scope; surely Congress could

not have intended to codify the fairness doctrine as to

some types of broadcasts, but not others.

The legislative history does not justify a departure from

the plain meaning of the savings clause. The purpose of

the 1959 amendment as a whole was to overturn the Com-

mission’s decision in Lar Daly, 26 F.C.C. 715 (1959),

which held that the equal opportunities requirement of

Section 315 was triggered by the appearance of a political

candidate on a newscast. As the Commission has ob-

served, “the legislative history lacks clear record evidence

demonstrating a reasoned consideration of the fairness

doctrine which would indicate an intent by Congress to

codify the doctrine. While there are scattered references to

the obligations of broadcasters under the public interest

standard to present both sides of controversial public

issues by some members of Congress, there was no signifi-

cant discussion of the Commission’s fairness doctrine.”

1985 Fairness Report, Pet. App. 169a. In view of the

broad and flexible authority that Congress had delegated

to the Commission to apply the Communications Act’s

“public interest” standard, we believe that Judge Bork’s

assessment of the legislative history in TRAC was correct:

“It would have been extraordinary if Congress in 1959 had

intended to strip the Commission of all further discretion

in this area and to freeze by statute the fairness doctrine in

the form it had in 1959. * * * One would have expected ex-

tended congressional discussion of the wisdom of such a

move. There is none.” 806 F.2d at 1121 (statement of

Bork, J., in support of denial of rehearirg en banc).

The Court’s decision in Red Lion does not suggest

otherwise. See Pet. 17. In that case, the issue was whether

17

the Communications Act authorized—not obligated — the

Commission to promulgate the fairness doctrine. The

Court took care to describe the process through which the

Commission had developed the doctrine and to identify

various statutes from which the Commission had derived

its authority. 395 U.S. at 375-380. That discussion is in-

compatible with the view that the evolution of the fairness

doctrine reflected only the Commission’s performance of a

mandatory statutory duty arising at the time that the Act

was passed or when it was amended in 1959.

When the Court turned to the doctrine’s recognition in

various congressional actions, it said that the fairness doc-

trine “finds specific recognition in statutory form, is in

part modeled on explicit statutory provisions relating to

political candidates, and is approvingly reflected in

legislative history.” 395 U.S. at 380. If Section 315 had

made the doctrine mandatory, the Court could have re-

solved any issue of the Commission’s authority without re-

ferring to provisions on which the doctrine had been

modeled or any other indicator of congressional approval.

Similarly, after noting that Section 315(a) had “knowingly

preserved” the Commission’s efforts in the area of the fair-

ness doctrine, the Court concluded that the doctrine was

“a legitimate exercise of congressionally delegated authori-

ty” and that the actions subject to review were not “beyond

the scope of the congressionally conferred power to assure

that stations are operated by those whose possession of a

license serves ‘the public interest.’ ” 395 U.S. at 385, 396.

That is not language that describes agency compliance

with a mandatory statutory duty.

b. Petitioners claim that, even apart from Section

315(a), the general public interest standard of the Com-

munications Act obligates the Commission to retain the

18

fairness doctrine. See Pet. 10-15. No decision of which we

are aware supports that view, and it flies in the face of Red

Lion’s discussion of the evolution and status of the fair-

ness doctrine. Whatever construction is placed on the 1959

amendment to Section 315(a), it is “quite clear that Con-

gress had not previously enacted the fairness doctrine.”

TRAC, 806 F.2d at 1119 (statement of Bork, J., on denial

of rehearing en banc). As Red Lion put it, the period prior

to the amendment of Section 315 was made up of “[t]hirty

years of consistent administrative construction /eft un-

disturbed by Congress,” 395 U.S. at 382 (emphasis added),

not thirty years in which that construction was mandated

by Congress.

This Court has repeatedly recognized that Congress

granted the FCC broad discretion to determine what “the

public interest” requires under evoiving conditions in the

broadcast industry. See FCC v. WNCN Listeners Guild,

450 U.S. 582, 593-596 (1981); Red Lion, 395 U.S. at

379-380; National Broadcasting Co. v. United States, 319

U.S. 190, 225 (1943); FCC v. Pottsville Broadcasting Co.,

309 U.S. 134, 138 (1940). That flexible standard cannot

fairly be construed to require adherence to the fairness

doctrine at a point when the Commission determines that

it has become counterproductive.

Based upon a voluminous administrative record, its

familiarity with the broadcasting industry, and its experi-

ence with the fairness doctrine, the Commission has now

found that the doctrine “disserves both the public’s right to

diverse sources of information and the broadcaster’s in-

terest in free expression.” Pet. App. 247a. The Coinmis-

sion has also found, in view of developments in the broad-

casting industry, that the doctrine is “not necessary in any

market to ensure that the public has access to diverse view-

points from today’s media outlets.” Jd. at 244a-245a. The

19

court of appeals has sustained those findings under the ap-

propriate standard of judicial review. The petition does

not seriously challenge the court’s analysis of the adminis-

trative record, and any question regarding the sufficiency

of the support in that record for the Commission’s find-

ings would not raise an issue of a type warranting this

Court’s review. At this juncture, therefore, this case does

not present a choice between a “public trustee concept”

and a “print model” (Pet. 10) for regulation of the broad-

cast industry. Rather, the issue is whether the “public in-

terest” standard in the statute requires the Commission to

apply a doctrine that undercuts its own reason for being.

In their dire predictions regarding the effect of the Com-

mission’s decision on the broadcast industry (Pet. 13-15),

petitioners greatly overstate the reach of the decision and

ignore the express and inherent limits on the Commission’s

reasoning. By its own terms and as affirmed by the court

of appeals, that decision is limited to the fairness doctrine

itself, and goes no further than the Commission’s deter-

minations regarding that doctrine’s effects in the broad-

casting industry. The decision does not affect any other

aspect of the regulatory scheme.

Thus, the decision does not “invalidate * * * the entire

public interest regulatory scheme at renewal.” Pet. 15. Ex-

isting FCC policies continue to impose substantial public

interest responsibilities on broadcast licensees. For exam-

ple, broadcasters would continue to have the basic obliga- |

tion, enforceable through denials of license renewals, to

provide “issue responsive” programming that meets the

needs and interests of their communities.'? The decision at

'2 See Commercial TV Stations, 98 F.C.C.2d 1076, 1091 (1984),

reconsid. denied, 104 F.C.C.2d 358 (1986), aff'd in part and remanded

in part on other grounds, Action for Children’s Television v. FCC, 821

F.2d 741 (D.C. Cir. 1987); Deregulation of Radio, 84 F.C.C.2d 968,

20

issue here has no effect on broadcasters’ responsibility to

provide programming directed to the special needs of

children in their community of license,'? and broadcasters

continue to have the statutory obligation to provide candi-

dates with equal opportunities and reasonable access

under the Act. 47 U.S.C. 315, 312(a)(7). More generally,

broadcasters will continue to have to demonstrate that

their operations are in “the public interest” in order to ob-

tain renewal of their licenses. 47 U.S.C. 309. The Commis-

sion made very clear that all of these obligations remain in

effect after its decision in this case. Pet. App. 218a-219a

n.91, 224a n.101, 291a-292a, 304a-305Sa.

Even as to policies that are closely related to the fairness

doctrine, such as the personal attack and political editorial

rules, the Commission stated that it would consider

separately what effect, if any, its decision would have on

those policies:'* Any decision to modify those rules would

977-978, reconsid. denied, 87 F.C.C.2d 797 (1981), aff'd in part and

remanded in part on other grounds, Office of Communication of

United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983).

Contrary to petitioners’ assertions (Pet. 12-14), the Commission has

emphasized that while a licensee, “in the exercise of its good faith

judgment, will be able to address issues by whatever program miix it

believes is appropriate in order to be responsive to the needs of its

community * * *, [o]f course, broadcasters cannot engage in inten-

tional [racial] discrimination in the selection of issues to be addressed

in their programming.” Commercial TV Stations, 98 F.C.C.2d at 1092

& n.53, citing LaMar-Life Broadcasting Co., 38 F.C.C. 1143,

1154-1155 (1965); see also Dereguiation of Radio, 84 F.C.C.2d at 978.

'3 See Children’s Television Programming, 96 F.C.C.2d 634,

655-656 (1984), aff'd, Action for Children’s Television v. FCC, 756

F.2d 899 (D.C. Cir. 1985).

'4 Pet. App. 287a-288a. A separate proceeding is now pending with

respect to the personal attack and political editorial rules. See Repea/

or Modification of the Personal Attack and Political Editorial Rules,

48 Fed. Reg. 28,295 (1983).

21

be subject to judicial review based upon an administrative

record permitting full consideration of the Commission’s

application of the Act’s public interest standard to a

record compiled for that purpose.

c. In its present posture, this case does not present the

question whether Red Lion’s constitutional analysis re-

mains good law or whether changes in the broadcasting in-

dustry require a different result under that analytical

framework. See Pet. 18-21. Only Judge Starr considered

the Commission’s constitutional determination, and that

portion of his opinion did not constitute part of the panel’s

holding.

d. Finally, petitioners contend (Pet. 21) that the court

of appeals committed “clear error” in affirming the Com-

mission’s decision to eliminate the first prong of the fair-

ness doctrine. However, at this juncture, the only issue is

whether that decision was arbitrary and capricious. See

Pet. App. 28a, 41a, 72a. The basis for the Commission’s

action was its determination that it “would not choose, as

a policy matter, to enforce [the] first prong divorced from

the second prong,” since “enforcement of the first prong

aione in this fashion would be largely duplicative of [the

Commission’s] existing enforcement of the requirement

that broadcasters cover issues that are responsive to the

needs and interests of their communities, [and] there

would be no added public interest benefit to enforcing the

first prong of the fairness doctrine as an independent

policy.” Pet. App. 30la-302a. The Commission also ex-

plained that “[h]aving eliminated the chilling effects most

directly associated with the second prong of the doctrine,

coverage of controversial issues will be forthcoming

naturally, without the need for continued enforcement of

the first prong.” Jd. at 303a. This Court has repeatedly

recognized that judgments of this nature are entitled to

“substantial judicial deference.” FCC v. WNCN Listeners

22

Guild, 450 U.S. at 594-596; FCC v. National Citizens

Comm. for Broadcasting, 436 U.S. 775, 810 (1978). The

court of appeals’ application of the appropriately defer-

ential standard of review to the administrative record here

is not a matter warranting this Court’s further review. This

is especially so in light of the fact that in the history of the

fairness doctrine, there has been only one case in which the

Commission has found that a licensee violated the first

part of the doctrine. See Patsy Mink, 59 F.C.C.2d 987

(1976).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General*

ROBERT L. PETTIT

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications Commission

NOVEMBER 1989

* The Solicitor General is disqualified in this case.

<r US. GOVERNMENT PRINTING OFFICE: 1989—262-203/00614