# Opposition Brief — Syracuse Peace Council v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0197%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1019 ## Text 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] Ee WILSON - Epzs PRINTING Co., INC. - 739-0096 - WASHINGTON, D.C. 20001 fee BEST AVAILABLE COPY! [am a 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 I III ssi schascastohipndienncecacsiebanitansenteabegeaienes I ictesias inc shi tsi bandanas pepheemnivineaieaedtnalaneshibeliniant 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 2 il 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. 2 (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. 3 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. 4 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). 5 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). 6 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). 7 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). 8 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) ; see also 105 Cong. Rec. 17778 (1959). This view of the scope of the 1959 amendments to Section 315 has been shared by a 1968 congressional staff study, see Staff Study of the House Comm. on Interstate and Foreign Commerce, Legisla- tive History of the Fairness Doctrine, 90th Cong., 2d Sess. 29 (1968) (the “suggest[ion] that Congress, in its enactment of the 1959 amendments, intended neither approval nor disapproval of 9 dies Lion, the conferees modified the Proxmire Amendment from a “positive statement” to “merely approving lan- guage.” %6 Absent any clear expression of congressional intent to make the fairness doctrine a statutory requirement, it would be wholly inappropriate to view Congress as seek- ing inflexibly to codify Commission requirements such as the fairness doctrine when changing conditions may make modification or abandonment of the requirements appropriate—as has been the case with respect to the fairness doctrine.** the Fairness Doctrine, but intended to insure that Section 315 would not interfere with it . . . appears to be a more accurate reading of the legislative history than the alternative one that Congress intended a complete codification of the doctrine”), and by several commentators, see, e.g., Robinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Tele- vision Regulation, 52 Minn. L. Rev. 67, 124 (1967) (concluding that 1959 amendments preserve but did not require the fairness doctrine); Blake, Red Lion Broadcasting Co. v. FCC: Fairness and the Emperior’s New Clothes, 23 Fed. Comm. B.J. 75, 81-82 (1969) (same). 36 See supra at p. 6. 37 See Columbia Broadcasting System, Inc. v. Democratic Na- tional Committee, 412 U.S. 94, 122 (1973) (Commission requires “the flexibiltiy to experiment with new ideas as changing condi- tions require”) ; id. at 118 (opinion of Burger, C.J.) (recognizing the importance of giving the Commission “flexibility and the ca- pacity to adjust and readjust the regulatory mechanism to meet changing programs and needs”); FCC v. WNCN Listeners Guild, 450 U.S. 582, 593 (1981) (“the public-interest standard of the Act [was designed to serve as] ‘a supple instrument for the exer- cise of discretion by the expert body which Congress has charged to carry out its legislative policy’”) (citation omitted); National Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943). 10 CONCLUSION For the foregoing reasons, the petition for certiora. should be denied. Respectfully submitted, Of Counsel: TIMOTHY B. Dyk GEORGE VRADENBURG III Counsel of Record HOWARD F. 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 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 November 29, 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0197%3A4. Public record. Not legal advice.