Opposition Brief — Syracuse Peace Council v. Federal Communications Commission

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Suipreme Gourt, U.S.

FILED

No. 89-312 NOV 29 1989 e

. $$ JR.

IN THE = CLERK

Supreme Court of the United States

OCTOBER TERM, 1989

SYRACUSE PEACE COUNCIL, et al.,

- Petitioners,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

JOINT MEMORANDUM IN OPPOSITION

OF RESPONDENTS CBS INC.,

NATIONAL ASSOCIATION OF BROADCASTERS,

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION,

AND REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

Of Counsel: TIMOTHY B. DYyK

GEORGE VRADENBURG III Counsel of Record

Howar “. JAECKEL WILMER, CUTLER & PICKERING

CBS, INc. 2445 M Street, N.W.

51 West 52 Street Washington, D.C. 20037

New York, NY 10019 (202) 663-6000

HENRY L. BAUMAN Counsel for Respondents

STEVEN A. BOOKSHESTER CBS, Inc., National

NATIONAL ASSOCIATION Association of Broadcasters,

OF BROADCASTERS Radio-Television News

1771 N Street, N.W. Directors Association, and

Washington, D.C. 20036 Reporters Committee for

Freedom of the Press

[ Additional Counsel listed on inside cover]

WILSON - Epzs PRINTING Co., INC. - 739-0096 - WASHINGTON, D.C. 20001

fee BEST AVAILABLE COPY! [am

J. LAURENT SCHARFF

REED SMITH SHAW & MCCLAY

1200 18th Street, N.W.

Washington, D.C. 20036

Counsel for Radio-Television

News Directors Association

JANE E. KIRTLEY

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

800 18th Street, N.W.

Washington, D.C. 20006

TABLE OF CONTENTS

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ARGUMENT

ee ee ee ee ee

I. THE CONSTITUTIONAL ISSUE WAS NOT

DECIDED BY THE COURT OF APPEALS...

II. THE ISSUES DECIDED BY THE COURT OF

APPEALS DO NOT WARRANT REVIEW BY

IIE ibeet ent tatiinntcstenseseatsinprsenkecnntianateidliniiaci

I siti ecustalthcianinicccdiheinciiictnesipapeeciensaatagents a

TABLE OF AUTHORITIES

Cases: Page

Columbia Broadcasting System Inc. v. Democratic

National Committee, 412 U.S. 94 (1978) ............. 9

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

IIE: incconsacasscacdtecs cuss oe cockiathighenenidehiaualdmcasibnisasamentaects 9

Maier v. FCC, 735 F.2d 220 (7th Cir. 1984) -...... 4

National Broadcasting Co. v. United States, 319

Fy ka II IATA AR EN es oO 9

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

1060 (1st Cir. 1975), cert. denied, 424 U.S. 965

SSC ti SSeS SCR Pie oleh prem 4,6,7

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

RET ERI CRBC, Sar CanE~ ean Oe ay SEEN NSE 6

Telecommunications Research & Action Center v.

FCC, 801 F.2d 501 (D.C. Cir. 1986), cert. de-

I Te es. I ID eictnscctecsiccicannsdennesiemient 4

Statutes:

ie Ea FCS 9.) Ree aCe eae 5

Administrative Decisions and Orders:

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

32 (1929), rev’d on other grounds, 37 F.2d 993

(D.C. Cir.), cert. dismissed, 281 U.S. 599

2 EARNER pci cot ean es eDbe oo Clara Mlr NAMES Las tA ao aR

Syracuse Peace Council, 2 F.C.C. Red 794 (1987) ..

Report on Editorializing, 18 F.C.C. 1246 (1949)...

on o

Legislative Materials:

fe 8 6 | en ee 5

oe RR) an 5

105 Cong. Rec. 14457, 14463 (1959) ........--. ee... 8

ls Fe tc ettiinactnccensiaeicnccnnns 8

H.R. Rep. No. 2196, 72nd Cong., 2d Sess. (1959) .... 8

H.R. Rep. No. 802, 86th Cong., Ist Sess. (1933)... 5

H.R. Rep. No. 1069, 86th Cong., Ist Sess. (1959),

reprinted at, 1095 Cong. Rec. 17777 (1959) ......... 8

S. 742, Fairness in Broadcasting Act of 1987, 100th

RE __g Ram ADR ENc IE ee 4

ili

TABLE OF AUTHORITIES—Continued

S. Rep. No. 772, 69th Cong., Ist Sess. (1926)........

S. Rep. No. 781, 73d Cong., 2d Sess. (1934) ...........

S. Rep. No. 562, 86th Cong., Ist Sess. (1959) —.......

Political Broadcasting: Hearings Before the Com-

munications Subcomm. of the Senate Comm. on

Interstate and Foreign Commerce, 86th Cong.,

Be I. Wench

Political Broadcasts—Equal Time: Hearings on

H.R. 5389, H.R. 5675, A.R. 6326, H.R. 7122,

H.R. 7180, H.R. 7206, H.R. 7602, H.R. 7985 Be-

fore the Subcomm. on Communications and

Power of the House Comm. on Interstate and

Foreign Commerce, 86th Cong., Ist Sess.

CRIT sn tivnicaie asain chioiaadaannetndsabibcmaieacminless

Staff Study of the House Comm. on Interstate and

Foreign Commerce, Legislative History of the

Fairness Doctrine, 90th Cong., 2d Sess. (1968) ..

Miscellaneous:

Blake, Red Lion Broadcasting Co. v. FCC: Fair-

ness and the Emperor’s New Clothes, 23 Fed.

sl US OR cnet arc ee

Robinson, The FCC and the First Amendment:

Observations on 40 Years of Radio and Televi-

sion Regulation, 52 Minn. L. Rev. 67 (1967)......

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-312

SYRACUSE PEACE COUNCIL, et al.,

Petitioners,

¥.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

JOINT MEMORANDUM IN OPPOSITION

OF RESPONDENTS CBS INC.,

NATIONAL ASSOCIATION OF BROADCASTERS,

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION,

AND REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

These respondents respectfully request that this Court

deny the petition for a writ of certiorari filed herein on

August 23, 1989, to review the judgment and opinion of

the United States Court of Appeals for the District of

Columbia Circuit entered in this proceeding on February

10, 1989.*

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

* A minority of the stock of CBS Inc. is owned by Loews Cor-

poration, a publicly-owned corporation.

(Pet. App. 188a-28la) 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

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 certiorari was filed on August 28, 1989. The juris-

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

ARGUMENT

I. THE CONSTITUTIONAL ISSUE WAS NOT DE-

CIDED BY THE COURT OF APPEALS.

The primary thrust of the petition is to convince this

Court to grant certiorari on an issue that was not de-

cided by the court of appeals.’

At the agency level, the Federal Communications Com-

mission (“Commission”) did decide the constitutionality

of the second part of the fairness doctrine which required

the presentation of opposing views on controversial issues

of public importance.*. The Commission found that re-

quirement to be unconstitutional because it served no

substantial government interest * and had the effect of

chilling speech.t The court of appeals affirmed the Com-

1 Pet. at 10.

2 Syracuse Peace Council, 2 F.C.C. Red 794 (1987) (Pet. App.

190a, 245a-47a, 277a).

3 Pet. App. 245a-46a.

* Pet. App. 246a-47a.

mision solely on the basis of the Commission’s finding, as

a policy matter, that the fairness doctrine no longer

served the public interest.’ This case thus presents no

constitutional question for this Court’s review."

II. THE ISSUES DECIDED BY THE COURT OF AP-

PEALS DO NOT WARRANT REVIEW BY THIS

COURT.

The court of appeals decided that the Commission did

not act arbitrarily in eliminating the second part of the

fairness doctrine.’ Petitioners do not contend that the

court of appeals’ decision upholding the Commission’s

elimination of the second part of the fairness doctrine

conflicts with the decision of any other circuit or that

it presents an important question of administrative law.

Petitioners barely make an effort to show that this issue

was incorrectly decided by the court of appeals,* and that

issue does not warrant this Court’s review.

The court of appeals also decided that the Commission

did not act arbitrarily in eliminating the first part of

the fairness doctrine.’ That part of the doctrine required

that broadcasters present views on controversial issues.

Again, petitioners assert no conflict among the circuits

and do not claim that the court of appeals has decided an

important question of administrative law. In any event,

this issue could not warrant review by this Court since

the Commission has made clear in its decision below that

the first part of the fairness doctrine is largely duplica-

tive of a separate Commission requirement that requires

the broadcast of issues-responsive programming, a re-

5 Pet. App. 8a, 32a.

"Td.

7 Pet. App. 18a, 32a.

8 Pet. at 14-15.

® Pet. App. 32a, 72a.

quirement that remains undisturbed by the decision

below.’°

The court of appeals also held that the fairness doc-

trine was not required by statute, basing its decision on

a three-year old decision of the same court,’ which found

that the fairness doctrine had not been codified by statute

and hence could be eliminated by the Commission.’* This

Court earlier denied certiorari to review that decision.

Contrary to petitioners’ contention,” the court of appeals’

decision on this statutory issue does not conflict with the

decision of any other circuit and, in fact, is consistent

with the decision of the First Circuit in Public Interest

Research Group v. FCC.

Nor is the decision on the statutory question likely to

be important in the future. Congress in recent years has

devoted considerable attention to the question whether the

fairness doctrine should be codified. Indeed, Congress in

1987 passed a bill to codify the doctrine, which was sub-

sequently vetoed by the President.’* As the petition itself

recognizes, efforts to codify the doctrine—and opposition

10 Pet. App. 3la-32a, 2244 n.101.

11 felecommunications Research & Action Center v. FCC, 801

F.2d 501 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987)

(“TRAC”).

12 Jd. at 517-18.

13 Pet. at 15.

14522 F.2d 1060, 1066-67 (1st Cir. 1975), cert. denied, 424 U.S.

965 (1976). Public Interest Research Group is the only case other

than_TRAC in which a court has squarely ruled on the question of

whether the fairness doctrine was required by Section 315(a) of

the Communications Act. In Maier v. FCC, 735 F.2d 220 (7th Cir.

1984), cited by petitioners, the court of appeals was not presented

with this question and made only a passing reference to the codifi-

cation issue.

15 Fairness in Broadcasting Act of 1987, S. 742, 100th Cong., 1st

Sess. (1987).

to those efforts—continues.'® Under such circumstances

the statutory issue does not warrant this Court’s review.

In any event, the codification question was correctly

decided by the court below. When the Radio Act of 1927,

the predecessor of the Communications Act of 1934, was

enacted, it contained no fairness doctrine, and Congress

had, in fact, rejected proposals to require the presenta-

tion of opposing views on public issues.’7 Although legis-

lative efforts to mandate such a doctrine continued to be

defeated,'’* the Federal Radio Commission, predecessor of

the Federal Communications Commission, began, as early

as 1929, to develop on case-by-case basis a concept of

fairness in broadcasters’ treatment of public issues.'? The

fairness doctrine was first articulated in its present form

by the Commission in 1949 in its Report on Editorializ-

ing.” When Congress exempted news and news-related

programs from the equal opportunities requirement of

Section 315 of the Communications Act, it made refer-

ence in that legislation to the fairness doctrine, stating

Nothing in the foregoing sentence shall be construed

as relieving broadcasters, in connection with the pres-

entation of newscasts, news interviews, news docu-

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

from the obligation imposed upon them under this

Act to operate in the public interest and to afford

reasonable opportunity for the discussion of conflict-

ing views on issues of public importance.*’

16 Pet. at 18 n.25, 22.

17 See S. Rep. No. 772, 69th Cong., Ist Sess. (1926); 67 Cong.

Rec. 5560 (1926). .

18 See, e.g., H.R. Rep. No. 2106, 72nd Cong., 2d Seas. 4 (1933) ;

S. Rep. No. 781, 73rd Cong., 2d Sess. 8 (1934); 78 Cong. Rec.

10988 (1934).

19 See, e.g., Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep. 32

(1929), rev’d on other grounds, 37 F.2d 993 (D.C. Cir.) cert.

dismissed, 281 U.S. 599 (1930).

20 13 F.C.C. 1246 (1949).

31 47 U.S.C. 315(a) (1982).

The language and legislative history of these 1959

amendments were interpreted by this Court of Red Lion

Broadcasting Co. v. FCC.** There this Court rejected the

contention that the fairness doctrine was not authorized by

the public interest standard of the Communications Act:

Thirty years of consistent administrative construc-

tion left undisturbed by Congress until 1959, when

that construction was expressly accepted, reinforce

the natural conclusion that the public interest lan-

guage of the Act authorized the Commission to re-

quire licensees to use their stations for discussion of

public isues... .”

At the same time the Court made plain that the 1959

amendments to Section 315 did not require the fairness

doctrine. The Court found that the reference to the fair-

ness doctrine in the 1959 amendments was an effort to

“preserve” that administrative doctrine in the newly

exempted areas: “Congress has acknowledged that the

analogous provisions of § 315 are not preclusive in this

area, and knowingly preserved the FCC’s complementary

efforts.” 2 Specifically, the Court found that the defeated

Proxmire amendment to the 1959 amendments, which

would have “constituted a positive statement of the [fair-

ness] doctrine,” was altered “to the present merely ap-

proving language in the conference committee.” *°

The only other circuit expressly to consider this ques-

tion, like the court below, has concluded that the “fairness

doctrine is not a creature of statute.” *° In Public Inter-

est Research Group v. FCC,” the First Circuit held that

22 395 U.S. 367 (1969).

23 Red Lion, 395 U.S. at 382.

24d. at 385. Elsewhere the Court stated that Congress had

“ratified” the Commission’s efforts. Jd. at 381.

25 Jd. at 383-84 (emphasis supplied).

26 Public Interest Research Group v. FCC, 522 F.2d 1060, 1066

(Ist Cir. 1975), cert. denied, 424 U.S. 965 (1976).

27592 F.2d 1060 (1st Cir. 1975), cert. denied, 424 U.S. 965

(1976).

the Commission acted within its statutory authority when

it excluded from the fairness doctrine those product com-

mercials which did not explicitly address a public issue.*8

In rejecting the argument that Congress had “ ‘codified’

both the fairness doctrine and the Commission’s former

application of it to product ads,” the Court adopted the

view that Congress, in 1959, merely, “acknowledged and

generally endorsed the Commission’s adoption of fairness

standards.” 7°

The view that the 1959 amendments merely protected

the Commission’s doctrine from an implied repeal is

strongly supported by the legislative history. During con-

sideration of the 1959 amendments, both the Department

of Justice and the Commission expressed concern that in

exempting news programs from the statutory equal time

requirements, Congress should not inadvertently suggest

that the Commission’s fairness doctrine would no longer

apply to such broadcasts.*° In response to these concerns,

the Senate Committee stated in its report that it wished

to make “crystal clear” that the amendment would not

affect the Commission’s existing policy.*'

Senator Proxmire, however, was not content with this

approach. During the floor debates on the Senate bill,

28 Id. at 1066-67.

29 Jd. at 1066.

8° Political Broadcasting: Hearings Before the Communications

Subcomm. of the Senate Comm. on Interstate ard Foreign Com-

merce, 86th Cong., Ist Sess. 75, 309, & n.3 (1959); Political Broad-

casts—Equal Time: Hearings on H.R. 5389, H.R. 5675, H.R. 6326,

H.R. 7122, H.R. 7180, H.R. 7206, H.R. 7602, H.R. 7985 Before the

Subcomm. on Communications and Power of the House Comm. on

Interstate and Foreign Commerce, 86th Cong., Ist Sess. 13, 122 &

n.6 (1959). There was no suggestion by either the Department or

the Commission that Congress should act to codify the docrtine.

31S. Rep. No. 562, 86th Cong., Ist Sess. 13 (1959).

he sought to make the fairness doctrine a congressional

requirement and offered a modification that provided that

nothing in the 1959 amendments to Section 315 should be

construed to change “the basic intent of Congress...

which recognizes that . . . all sides of public controversies

shall be given as equal an opportunity to be heard as is

practically possible” in all of the exempted categories of

news programs.*? With minor modifications, the Proxmire

amendment was adopted and appeared in the final version

of the Senate bill.*

The House substitute contained no provision comparable

to the Proxmire amendment. Instead, the House bill, like

the original Senate bill, simply exempted news programs

from the equal time requirements of Section 315. In

conference, the Proxmire amendment was included in the

final bill, but was modified to eliminate the statement

ascribing the general fairness obligations to “the basic

intent of Congress.” Instead, as noted above, the final

language referred to the fairness requirements as being

“imposed ... under” the Act. The conferees did not view

themselves as enacting new statutory obligations, but

rather intended to recognize the Commission’s authority

to enforce the fairness doctrine under the Act and to en-

sure that the exemptions to Section 315 were not read to

abrogate that authority.** As this Court concluded in Red

82105 Cong. Rec. 14457 (1959).

33 Jd. at 14457, 14463.

34 H.R. Rep. No. 802, 86th Cong. Ist Sess. 2 (1959).

35 See H.R. Rep. No. 1069, 86th Cong., Ist Sess. 4-5 (1959),

reprinted at 105 Cong. Rec. 17777 (1959) (emphasis supplied) ;