Opposition Brief — Accuracy in Media, Inc. v. National Broadcasting Co.

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-670

ACCURACY IN MEDIA, INC., PETITIONER

Vv.

NATIONAL BROADCASTING COMPANY, INC.,

AND FEDERAL COMMUNICATIONS COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL COMMUNICATIONS

COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 150a-203a)

is reported at 516 F. 2d 1101. The court’s order of August

7, 1975, denying a petition for rehearing (Pet. App. 204a),

is unreported. Prior related opinions and orders of the

court of appeals, sitting by division and en banc (Pet. App.

34a-99a, 100a), are also reported at 516 F. 2d 1101. The

memorandum opinion and order of the Federal Communi-

cations Commission (Pet. App. la-33a) is reported at 44

F.C.C. 2d 1027, and the decision of the Commission’s

Broadcast Bureau is reported at 40 F.C.C. 2d 958.

JURISDICTION

The judgment of the court of appeals was entered on

July 11, 1975. A timely petition for rehearing was denied

(1)

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on August 7, 1975, and the petition for a writ of certi-

orari was filed on November 5, 1975. The jurisdiction of

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

QUESTION PRESENTED

a

Whether the court of appeals erred in remanding this

case to the Federal Communications Commission, at

the Commission's request, in order to permit the Com-

mission, in light of changed circumstances, to dismiss

the complaint.

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STATUTORY PROVISIONS INVOLVED

Relevant sections of the Communications Act of 1934,

48 Stat. 1064, as amended, 47 U.S.C. 151 et seq., and of

Title 28, United States Code, are set forth at Pet. 3-5.

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STATEMENT

On November 27, 1972, petitioner Accuracy in Media,

Inc. (AIM), filed a complaint with the Federal Communi-

cations Commission charging that the National Broad-

casting Company (NBC) had violated the Commission’s

fairness doctrine. The allegation related to NBC’s presenta-

tion on. September 12, 1972, of a television program en-

titled “Pensions: The Broken Promise” (the “program”),

without presenting or affording others an opportunity to

present contrasting points of view (Pet. App. 34a, 35a).

In its complaint, AIM alleged that the program had

presented. only negative views of the private pension

system while endorsing the necessity for pension reform

through legislation of the type then being considered by

Congress. AIM asserted that the need for private pension

reform was a controversial issue of public importance

which, under the fairness doctrine, required NBC to

present views in its overall programming in contrast to

those expressed in the program (Pet. App. 39a-40a). In

reply, NBC stated that the program had not purported to

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deal with all private pension plans or to urge the adoption

of any specific legislation, but rather “was designed to

inform the public about some problems which have come

to light in some pension plans and which deserve a

closer look” (Pet. App. 40a). NBC contended that it had

treated this subject, which did not involve a controversial

issue of public importance, in a reasonable manner, and

that it was thus under no obligation to present addi-

tiona! views (Pet. App. 40a-4la).

On December 3, 1973, the Commission, affirming the

decision of its Broadcast Bureau, held unreasonable NBC’s

determination that its program did not address the issue

raised in AIM’s complaint and that its program did not

address a controversial issue of public importance (Pet.

App. 24a). The Commission therefore concluded that NBC

was obligated to present a reasonable opportunity in

its overall programming for contrasting views on the pri-

vate pension issue (Pet. App. 25a).

On NBC’s petition for review, the court of appeals

stayed the effectiveness of the Commission’s order pend-

ing its determination on the merits. On September 27,

1974, the court of appeals reversed the Commission in a

2 to | decision, holding that the Commission had errone-

ously substituted its judgment of the scope of the program

for that of the licensee without finding that NBC’s deter-

mination had been an abuse of its journalistic discretion

(Pet. App. 65a). AIM then petitioned for rehearing,

suggesting that the case be reheard en banc. That petition

was granted on December 13, 1974, and the court of ap-

peals en banc accordingly vacated the panel opinion and

judgment (Pet. App. 99a).

On March 6, 1975, prior to oral argument before the court

ot appeals en banc, the Commission filed a suggestion that

the case had become moot and shculd therefore be re-

manded for dismissal of the original complaint. While

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maintaining that its views on the merits were correct,

the Commission suggested that the enactment of private

pension reform legislation by Congress essentially had

rendered meaningless NBC’s obligations under the order

that was the subject of the appeal (Pet. App. 15la):

Thus, an order of this court affirming the Commission

will not result in the broadcast of additional views

on the pensions issue. Similarly, an order reversing

the Commission will not relieve NBC of any obliga-

tion to air additional material. Neither of the orig-

inal adversaries in this dispute (NBC and AIM)

nor the Commission stands to gain or lose by this

Court’s resolution of the case.

In light of these representations by the Commission,

the en banc court vacated its orders of December 13, 1974,

and referred the suggestion of mootness to the original

panel (Pet. App. 100a). On July 11, 1975, the panel vacated

its judgment of September 27, 1974, and remanded the

case to the Commission with instructions to dismiss the

complaint (Pet. App. 150a).'! A petition by AIM for re-

hearing was denied by the court of appeals on August 7,

1975 (Pet. App. 204a).

ARGUMENT

The order of the court of appeals is correct and presents

no question of general importance warranting review

by this Court. Contrary to petitioner’s contentions, the

decision below neither conflicts with Red Lion Broad-

casting Co. v. Federal Communications Commission,

395 U.S. 367, nor announces either an exemption from the

fairness doctrine for any type of programming or any

other ruling on the merits of this dispute. Instead, the court

of appeals merely concluded that the enactment of pri-

vate pension reform legislation while this case was

'It is of this order that petitioner seeks review by this Court.

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sub judice and the Commission’s order was stayed had

rendered ineffective the Commission’s order that NBC

present views contrasting with those of the program.

Consequently, the court properly concluded that the un-

availability of practical relief dictated a remand to the Com-

mission for dismissal of the complaint.

1. The intervening enactment of the Emplovee Retire-

ment Income Security Act of 1974, Pub. L. 93-406, 88

Stat. 829, 29 U.S.C. 1001 er seqg., has robbed this con-

troversy of continuing vitality and made further judi-

cial review inappropriate. The Commission’s original de-

termination that the program broadcast by NBC had in-

volved a “controversial issue of public importance”—a

finding that triggered the licensee’s obligation to pre-

sent contrasting views under the fairness doctrine—was

heavily influenced by the pendency before Congress of

pension reform legislation (Pet. App. 14a, n. 3, 23a). Its

order therefore contemplated compliance by NBC prior to

final congressional action on the pending legislation;

indeed, to ensure the presentation of contrasting views in

time to influence the legislative consideration, the Com-

mission denied NBC’s request for a stay of the order pend-

ing judicial review. Accuracy In Media, 44 F.C.C. 2d

1045. As a result of the stay granted by the court of ap-

peals, however, the purpose of the Commission’s or-

der can no longer be accomplished.

2. This Court has often noted the rule in federal cases

that “an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed.”

Steffel v. Thompson, 415 U.S. 452, 459, n. 10. See also

Preiser v. Newkirk, 422 U.S. 395, 401; Roe v. Wade,

410 U.S. 113, 125; United States v. Munsingwear, Inc.,

340 U.S. 36. Here the Commission had indicated that en-

forcement of its order would not serve its intended pur-

pose and that it considered NBC relieved of any duty to

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comply (Pet. App. 15la). Thus, NBC no longer has an actual

controversy with the Commission with respect to its pro-

gram. Indeed, this case is similar to DeFunis v.

Odegaard, 416 U.S. 312, which this Court dismissed as moot.

In both cases the effect of the challenged order had been

stayed, with the result that by the time of this Court's

review the controversy between the parties had dis-

solved and the awarding of effective relief had become

impossible.’

Nor does this case fall within the recognized exception

to the mootness doctrine for controversies that are “cap-

able of repetition, yet evading review.” Southern Pacific

Terminal Co. v. Interstate Commerce Commission, 219

U.S. 498, 515. As the Court stated in Sosna v. lowa, 419

U.S. 393, and recently reiterated in Weinstein v. Brad-

ford, No. 74-1287, decided December 10, 1975, slip op. 3,

that doctrine is limited to situations where “(1) the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there

was a reasonable expectation that the same complaining

party would be subjected to the same action again.”

Neither requirement is satisfied here. The Commission fre-

quently adjudicates complaints under the fairness doctrine

and its rulings are subject to judicial review; the passage

of relevant legislation during the course of this litigation

Was a unique event, preventing a court ruling only on this

set of facts, not on the broader legal issues as posed by dif-

ferent facts in the future. Indeed, the Commission recently

completed its Fairness Report, 48 F.C.C. 2d 1, in which it

fully discussed its standards and procedures, including the

>Unlike the situation in De Funis, here the changed circumstances

resulted not from the action of a party but from intervening legisla-

tion. See, e.g., United States v. New Jersey State Lottery Commission,

420 U.S. 371; All American Airways, Inc. y. United Air Lines, Inc.,

364 U.S. 297: Brvan v. Austin, 354 U.S. 933, Natural Milk Producers

Ass'n vy. City and County of San Francisco, 317 U.S, 423.

scope of review of licensee determinations, in ruling on

fairness doctrine complaints, and a petition for review of

the report has been filed in the United States Court of Ap-

peals for the District of Columbia Circuit. National Cit-

izens Committee for Broadcasting v. Federal Communi-

cations Commission, No. 74-1700. It is therefore most

unlikely that the substantive fairness doctrine issues

raised by AIM will evade review. Finally, while NBC is

of course subject to the continuing jurisdiction of the

Commission, resolution of fairness doctrine complaints

depends in large part upon a determination of the precise

factual situation involved. Thus, review of this decision is

not required to foreclose similar disputes between the part-

ies in the future.

3. Regardless of whether this case is moot in the juris-

dictional sense, the court of appeals’ order remanding it

to the Commission was a proper exercise of its equitable

discretion in view of the changed circumstances oc-

casioned by the pension statute. See, e.g., Burlington

Truck Lines, Inc. v. United States, 371 U.S. i5S6, 172

(passage of Labor-Management Reporting and Dis-

closure Act of 1959 while order of National Labor

Relations Board was under review “so changed the com-

plexion of the case that * * * the reviewing equity

court, in the exercise of its sound discretion, should not

have affirmed the order, as it did, but should have

vacated it and remanded it to the Commission for fur-

ther consideration in the light of the changed con-

ditions”); Aivobil Oil Corp. v. Federal Power Com-

mission, 417 U.S. 283, 311; Ford Motor Co. v. National

Labor Relations Board, 305 U.S. 364, 373. Since the Com-

mission had represented that, because of the interven-

ing pension legislation, NBC was “no longer under any

duty to comply” with its order (Pet. App. 1I5Sla), the

court below properly concluded that the case should be

remanded to the Commission for dismissal of the com-

plaint.

4. Finally, petitioner’s contention that the decision

below conflicts with the policies set forth in Red Lion

Broadcasting Co. v. Federal Communications Commis-

sion, supra, is unfounded. The court’s dismissal here

expressly reflected no judgment as to the substantive

issues raised by the original controversy. Indeed, despite

petitioner’s claim that the court of appeals intended sub

silentio to declare the fairness doctrine unconstitutional,

even the court’s initial decision of September 27, 1974,

did not hold that the doctrine was inapplicable to the

program aired by NBC. Rather, the court merely con-

cluded that the Commission had applied an erroneous

standard of review in determining whether the doctrine

had been violated (Pet. App. 65a).

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RosBertT H. Bork,

Solicitor General.

THOMAS E. KAUPER,

Assistant Attorney General.

BARRY GROSSMAN,

Attorney.

ASHTON R. HARDY,

General Counsel,

DANIEL M. ARMSTRONG,

Associate General Counsel,

STEPHEN A. SHARP,

Counsel,

Federal Communications Commission.

JANUARY 1976.

DOJ-1976-01