# Opposition Brief — Branton v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1052

## Text

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No. 93-1047 ' APR -6§& 1994

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In the Supreme Court of the Unite States —

OCTOBER TERM, 1998

PETER BRANTON. PETITIONER

FEDERAL COMMUNICATIONS COMMISSION. ET A]

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUT1

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

Drew S. Days. HI
Solicitor Ge)
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Washington, DC

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QUESTION PRESENTED

Whether a listener who lodges a complaint with the
Federal Communications Commission alleging that a
broadcaster violated the indecency prohibition in
18 U.S.C. 1464 has standing to seek judicial review of
the agency’s determination that the broadcaster did not
violate that statute.

TABLE OF CONTENTS

Page
es cavdlpeeeneceveveonseeness l
eo scuuevepeccuveseaveconverss l
ST ieee dela dephainhduesiuedeasucesiscesesieresesesesereverseseevees 2
SII sesh ecescnctesnseseresocsesoonseseeecceeeses pendndadsaaananidadaeniedés 4
SINT ii iasaictindatadbssatenesnsssbosecoeevscensesesveevesvesevovocussececers 13
tte socal sntbccechocsnuspaseeeteoeocevoooseserioons la
aa csseustepounveopeneonesecees 3a
TABLE OF AUTHORITIES
Cases:
ACLU vy. FCC, 523 F.2d 1344 (9th Cir. 1975) ............... 12, 13
Allen v. Wright, 468 U.S. 737 (1984) oo... cccccccccceceeeeeeeees i)
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ..0000..... 8, 9
Columbia Broadcasting System, Inc. v.. Democratic
National Committee, 412 U.S. 94 (1973) Jo. hails 6
FCC yv. League of Women Voters, 468 U.S. 364 (1984) ..... 7
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ........... ?
FCC v. Sanders Bros. Radio Station, 309 U.S. 470
SITTIN Rane cae auc cuees cuales suusnenuiesiesvedseeveeneccecoeuveyees 5
FRC y. Nelson Bros. Bond & Mortgage Co., 289 U.S.
Sinn SdER Tu chtdtus shehiusduunatusedunetuoueunensvesspesienvssereneees 5
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91
ERDTTED secevesessens EIAs Ltabendseadibeimibemeseanntesetaessentetosesersornres 6, 7
Hale v. FCC, 425 F.2d 556 (D.C. Cir. 1970) ........000000.... 4
Illinois Citizens Committee for Broadcasting v. FCC, 515
on ccadeesenneetnoceons 11, 12
Infinity Broadcasting Corp., 3 F.C.C. Red. 930 (1987),
aff’d in part sub nom. Action for Children’s Television
v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) .....................06 2
Linda R. S. vy. Richard D., 410 U.S. 614 (1973) .....000.... i)
Llerandi v. FCC, 863 F.2d 79 (D.C. Cir. 1988) .......000.... 4,7
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) ... s
Maier v. FCC, 735 F.2d 220 (7th Cir. 1984) .....00.0000... 4, 7, 8, 12

(IIT)

IV
Cases—Continued: Page
National Broadcasting Co. vy. United States, 319 U.S. 190
CIENT ‘comdnnsscneasasnsstbanmesevesnesesniddaasnaseansenasessshasiohienanunane 5
O'Shea v. Littleton, 414 U.S. 488 (1974) oo. cee eens 8
Office of Communication of United Church of Christ v.
PCC, 360 F.2d 904 (D.C. Cir. 1966) ...cccccrsccscccvcccssssereess 4,7
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) . 5
Rizzo v. Goode, 423 U.S. 362 (1976) ..............ccccccecceeeeees 8

Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942) .. 5, 6
Simon v. Eastern Kentucky Welfare Rights Organization,

Ee ae is Se GPT casseenstieonsceida sbetieeninanelictabasiabscsieastemadasseates i)
Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir.

1989), cert. denied, 493 U.S. 1019 (1990) .............. cece 7
Wisniewski v. United States, 353 U.S. 901 (1957) 0.00... 11

Constitution and statutes:

SAINTE. Uh-covsestnsadiensnneuvetevenonssethabisadeeidadcansbeanbnaidedtinnies 12
Act of June 19, 1934, ch. 652, § 402(b)(2), 48 Stat. 1098 .... 6
Communications Act of 1934, 47 U.S.C. 151 et seq.:

Oe er aie PIED Gisdidridhadenrtadhscocasiunniatennealeeacmeunaaniiocdiine 5
BF, Brahe ITD schveitnonassounnssicssicciesaasendevndomdsatbaliceebods 2, 10, 11
Ses: SEE sapcacagtivecnyesnduabnnenbbcvekounnesboaketnecnedtias 6
Ee Seer SEE sabisccbibetevntnkowcdoiecebenicunsbeiabovemtensades 6
Fe Tas OOD Siticcertccepcennirunsenlaviabusdbnsiauniise 6
es SEE cstecnabininannatephtniyvectintaainsanpdanainns 6
Ce ee ITED aitnoseintasdampiehsdcdewiiasodebeivaiiecanaies 2
es ea IEEE sacanercsadinnienitcdnectiedinuendechevecasedieseans 2
Be A eA IED Sevteiiccicidcssdatcctaedaadinintineniiedienitianbions 11
Fair Housing Act of 1968, 42 U.S.C. 3601 et seg. ............. 7
SRO FGe, BR UEC, FOGG ccncessscscereessecetcsesonsecvncsorsesctvesns 6

ee es WUE -daiecelsustietseisintgnteinyoioteeeiboradeglicansinmesanelainniaidaedieten 2, 10, 12

ee

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1047
PETER BRANTON, PETITIONER
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-11a) is
reported at 993 F.2d 906. The ruling of the Federal
Communications Commission (Pet. App. 15a-21a) is re-
ported at 6 F.C.C. Red. 610.

JURISDICTION

The judgment of the court of appeals was entered on
June 1, 1993. Pet. App. 12a. The order of the court of ap-
peals denying rehearing was entered on September 30,
1993. Pet. App. 14a. The petition for a writ of certiorari
was filed on December 29, 1993. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Congress has prohibited the broadcast of obscene
or indecent language over the public airwaves under
18 U.S.C. 1464. The Federal Communications Commis-
sion (FCC) has express statutory authority to impose
various sanctions for the violation of Section 1464,
including license revocation (47 U.S.C. 312(a)(6)) and
forfeiture penalties (47 U.S.C. 503(b)(1)(D) and (2)). See
FCC vy. Pacifica Foundation, 438 U.S. 726, 735-738
(1978). In exercising its authority to enforce Section
1464, the FCC has defined “indecency” as “language that
describes, in terms patently offensive as measured by
contemporary community standards for the broadcast
medium, sexual or excretory activities or organs, when
there is a reasonable risk that children may be in the au-
dience.” Infinity Broadcasting Corp., 3 F.C.C. Red. 930,
930 (1987), aff’d in part sub nom. Action for Children’s
Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988). The
Commission has also explained that the context of a
broadcast is essential to an indecency determination, and
that material broadcast in “the context of a bona fide
news program” would likely be of less concern than
other types of programming. 3 F.C.C. Red, at 937 n.31.

On February 8, 1989, petitioner heard a news report
concerning alleged organized crime leader John Gotti on
the National Public Radio (NPR) news program, “All
Things Considered.” The report included an excerpt of a
wiretapped telephone conversation that had been intro-
duced at Gotti’s trial. During the parts of the conversa-
tion aired on NPR, Gotti “used variations of ‘the f—-
word’ ten times.” Pet. App. 2a. Prior to the broadcast,
NPR advised listeners that “the following story con-
tains some very rough language.” Jd. at 17a. It did not,
however, delete or mask the expletives, and petitioner

filed a complaint concerning that broadcast with the
Mass Media Bureau of the FCC, Jd. at 2a-3a.

The Mass Media Bureau dismissed petitioner’s com-
plaint, ruling that NPR’s broadcast was not indecent and
provided no basis for Commission action under Section
1464. Pet. App. 3a. Petitioner sent a letter to the Com-
mission asking how he could appeal that decision.
Treating his letter as an application for review, the
Commission affirmed the Bureau's decision in a letter
ruling. /d. at 15a-19a. Over one Commissioner’s dissent,
the FCC concluded that the program at issue was not in-
decent because the expletives were broadcast in the con-
text of a bona fide news story relating to organized
crime. /d. at 16a. The Commission emphasized that
NPR’s use of the expletives “in a legitimate news re-
port” was not “gratuitous, pandering, titillating or oth-
erwise ‘patently offensive,’ as that term is used in our
indecency definition.” Jbid. The Commission noted that
the material prompting petitioner’s complaint “was evi-
dence used in a widely reported trial,” and that the FCC
“traditionally ha[s] been reluctant to intervene in the ed-
itorial judgments of broadcast licensees on how best to
present serious public affairs programming to their lis-
teners.” Jbid.

2. Petitioner sought judicial review of the Commis-
sion’s ruling. The court of appeals dismissed the petition
for review sua sponte on the ground that petitioner
lacked standing. Pet. App. la-lla. The court reasoned
that petitioner was seeking to impose sanctions on NPR
as a means of influencing the conduct of broadcasters
prospectively, and that he lacked standing because “[i]t
is mere conjecture that a radio station will again broad-
cast, at a time when * * * petitioner is listening, indecen-
cies that would be proscribed under 18 U.S.C. § 1464 (as
he would have us interpret that statute).” Jd. at 5a-6a.

4

The court also found it “conjectural whether the FCC’s
proceeding against the alleged broadcast indecency of
February [8], 1989 would cause any radio station(s) in
* * * petitioner’s area to broadcast any fewer indecent
programs in the future.” /d. at 9a. In the court’s view,
“radio stations might well decide that the benefits of
broadcasting indecent language of the sort petitioner
here challenges outweigh the costs of making certain
payments to the Government (here in the form of fines
rather than of taxes).” bid.

3. Two intervenors petitioned for rehearing, and the
court of appeals ordered the parties to respond. In its re-
sponse to the petition, the government argued that the
court should grant rehearing en bane and reconsider the
panel's ruling that petitioner lacked standing. On
September 30, 1993, the panel denied the petition for re-
hearing, and the en banc court denied the suggestion for
rehearing en banc, with three judges dissenting. Pet.
App. 13a, 14a.

ARGUMENT

1. It is well settled that viewers and listeners have
standing in various circumstances to sue the FCC to
challenge broadcasters’ noncompliance with require-
ments of the Communications Act of 1934 and the FCC’s
implementing regulations. See, e.g., Llerandi v. PL.
863 F.2d 79, 85 (D.C. Cir. 1988); Maier v. FCC, 735 F.2d
220), 227-230 (7th Cir. 1984); Office of Communication of
United Church of Christ v. FCC, 359 F.2d 994, 1000-1006
(D.C. Cir. 1966) (Burger, J.); Hale v. FCC, 425 F.2d 5d6,
p08 n.2 (D.C. Cir. 1970) (per curiam),

That recognition of viewer and listener standing
arises from the special circumstances surrounding
broadcast regulation. As this Court has explained, “the
radio spectrum simply is not large enough to accommo-

5

date everybody,” and “[rjegulation of radio was therefore
as vital to its development as traffic control was to the
development of the automobile.” National Broadcasting
Co. v. United States, 319 U.S. 190, 213 (1943). For that
reason, Congress charged the FCC with “allocat[ing |
frequencies among competing applicants in a manner
responsive to the public ‘convenience, interest, or
necessity.’” Red Lion Broadcasting Co. vy. FCC, 395
U.S. 367, 377 (1969); see 47 U.S.C. 307(a) (directing FCC
to grant broadcast licenses “if public convenience,
interest, or necessity will be served thereby”); see also,
e.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470,
474 (1940); FRC v. Nelson Bros. Bond & Mortgage Co.,
289 U.S. 266, 279 (1933). And the central purpose of
broadcast licensing is to “protect the public” (Sanders
*r08s., 309 U.S. at 475), whose rights as viewers and
listeners have been deemed “paramount” in the scheme
of broadcast regulation. Red Lion, 395 U.S. at 390.’

This Court has recognized that in enacting the Com-
munications Act of 1934, Congress applied those princi-
ples in making judicial remedies broadly available to
members of the public for whose benefit Congress en-
acted the statute. In Scripps-Howard Radio, Ine. vy.
FCC, 316 U.S. 4 (1942), the Court emphasized that “(t|he
purpose of the Act was to protect the public interest in
communications,” and that to that end, Congress gave
persons “aggrieved or whose interests are adversely
affected” by Commission action the right to appeal such

' To ensure that broadcast licenses are operated in the public
interest, Congress has refused to recognize any property interest
in such licenses. Instead, licenses have a limited duration, and they
“may be revoked, and need not be renewed.” Sanders Bros., 309
U.S. at 475. Thus, the channels “presently occupied remain free
for a new assignment to another licensee in the interest of the lis-
tening public.” Jbid.

6

action. Jd. at 14 (quoting Act of June 19, 1934, ch. 652,
§ 402(b)(2), 48 Stat. 1093). The Court also made clear
that Congress gave “these private litigants * * * stand-
ing only as representatives of the public interest.”
Scripps-Howard Radio, 316 U.S. at 14; see also
Columbia Broadcasting System, Inc. v. Democratic Na-
tional Committee, 412 U.S. 94, 136-137 (1973) (Stewart,
J., concurring) (“the public interest in broadcasting has
been recognized as a rationale for liberalized standing on
the part of listener groups in Commission licensing pro-
ceedings”).°

* Congress authorized judicial review in the D.C. Circuit by any
person “who is aggrieved or whose interests are adversely af-
fected” by the grant or denial of applications for broadcast licenses
or permits, for the renewal or modification of such instruments, or
for their transfer, assignment, or other disposition. 47 U.S.C.
402(b)(6); see also 47 U.S.C. 402(b)(1)-(4). In 47 U.S.C. 402(a)—the
provision under which review was sought in this case—Congress
authorized judicial review of any Commission order through the
Hobbs Act, 28 U.S.C. 2344, which allows “[a]ny party aggrieved by
[a] final order” to file a petition for review in “the court of appeals
wherein venue lies.” Although the petition for review in this case
was filed under Section 402(a), rather than Section 402(b), that dis-
tinction does not affect the availability of the judicial remedy af-
forded by Congress. Sections 402(a) and 402(b) “route appeals to
different courts,” but “the differentiation was in large measure the
product of Congressional solicitude for the convenience of litigants.
It had no relation to the scope of the judicial function which the
courts were called upon to perform.” Scripps-Howard Radio, 316
U.S. at 15; see id. at 16 (“As the legislative history of the Act
plainly shows, Congress provided the two roads to judicial review
only to save a licensee the inconvenience of litigating an appeal in
Washington in situations where the Commission’s order arose out
of a proceeding not instituted by the licensee.”).

3’ That liberalized standing is consistent with Article III. In
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979), this
Court, in light of a broad congressiona! conferral of standing (id. at

ae

Based on those considerations, the D.C. Circuit in Of-
fice of Communication of United Church of Christ v.
FCC (UCC), supra, found that viewers had standing to
challenge the renewal of a license on the ground that the
licensee “provided a disproportionate amount of commer-
cials and entertainment and did not give a fair and bal-
anced presentation of controversial issues.” 359 F.2d at
998." The court emphasized that “a broadcast license is a
public trust subject to termination for breach of duty,”
and that Congress assigned the public an important role
in seeing that licensees exercise their publicly conferred
authority consistently with the requirements of the Act.
Id. at 1003. That principle has been applied in a number
of contexts by the D.C. Circuit and other courts of ap-
peals. See, e.g., Llerandi, 863 F.2d at 85 (listener has
standing to challenge assignment of two AM licenses in
overlapping service area to one owner, in violation of
FCC rules); Maier v. FCC, 735 F.2d at 227-230 (listener

96-97), held that individuals could bring suit against a realtor en-
gaged in racially discriminatory practices, in violation of the Fair
Housing Act of 1968, 42 U.S.C. 3601 et seqg., even though the indi-
viduals were “testers” who did not actually wish to purchase
homes. Because the testers were residents of the neighborhood in
which the alleged unlawful practices occurred, the Court found
that they had been injured as homeowners in the community.
441 U.S. at 111-115. By the same token, those who live in a
licensee’s community and listen to the licensee’s programming may
be injured by its noncompliance with the FCC’s programming
requirements.

4 The FCC’s “fairness doctrine” required broadcasters “to pro-
vide adequate coverage of public issues and to ensure that this cov-
erage fairly and accurately reflect{[ed] the opposing views.” FCC
v. League of Women Voters, 468 U.S. 364, 378 (1984). The Commis-
sion has subsequently eliminated that doctrine. See Syracuse
Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied,
493 U.S. 1019 (1990).

SAAN ea Ne ee RTE Ee

8

has standing to challenge violation of fairness doctrine
and personal attack rule); see also id. at 223 (citing cases
in which courts of appeals found listener or viewer stand-
ing without discussion).

2. Although the court of appeals in this case held that |
petitioner, a listener of NPR, lacked standing to chal-
lenge the Commission’s dismissal of his indecency com-
plaint, the court’s narrowly based ruling does not merit
this Court’s review. The court of appeals did not ques-
tion either petitioner’s standing to seek relief from the
Commission or the continuing availability of viewer or
listener standing to seek judicial review under estab-
lished precedent in the court’s own circuit. (In fact, the
court acknowledged the vitality of, and explicitly sought
to distinguish, its prior decision in UCC, supra. Pet.

App. 6a-7a.) Instead, the court merely held that on the
facts of this case, petitioner did not have standing to con-
test the FCC’s dismissal of his complaint because it was
unclear whether the particular and isolated injury he al-
leged would again be visited upon him. /d. at 5a-7a.° The

5 The court of appeals rested (Pet. App. 4a-7a) its decision on
this Court’s decisions holding that to establish standing, a plaintiff
must allege an immediate and concrete injury and may not seek
prospective relief when it is speculative whether the injury com-
plained of will ever be repeated. See, e.g., Lujan v. Defenders of
Wildlife, 112 S. Ct. 2130 (1992); City of Los Angeles v. Lyons, 461
U.S. 95 (1983); O’Shea v. Littleton, 414 U.S. 488 (1974); Rizzo v.
Goode, 423 U.S. 362 (1976). For example, in City of Los Angeles v.
Lyons, upon which the court of appeals principally relied (Pet.
App. 4a-5a), this Court held that an individual who was placed in
an allegedly unlawful chokehold during a traffic stop lacked
standing to enjoin police from using such chokeholds in the future.
461 U.S. at 105-110. The Court explained that Lyons’ past injury,
“while presumably affording [him] standing to claim damages
* * * does nothing to establish a real and immediate threat that
he would again be stopped * * * by an officer or officers who

9

court of appeals also held that it was unclear whether the
alleged injury would be redressed by the sanctions that
the Commission, in its discretion, might impose if there
were a favorable disposition of the complaint.°

The court of appeals made those determinations with-
out briefing or argument, and the government contested
the court’s standing determination in its response to the
intervenors’ petition for rehearing. See Gov’t C.A. Resp.
2-7. We continue to believe that the court of appeals’
analysis was flawed; indeed, we note that even NPR does
not agree with all aspects of the court’s analysis. See
NPR et al. Br. in Opp. 9 n.9. Nevertheless, we believe
that this case does not present an appropriate vehicle for
this Court to consider the D.C. Circuit’s approach to
listener standing.

Because the record below does not indicate whether
and to what extent petitioner ‘was a repeat listener of

would illegally choke him into unconsciousness without any
provocation or resistance on his part.” Jd. at 105.

® The court of appeals cited (Pet. App. 7a-9a) this Court’s
precedents holding that individuals lacked standing to contest the
decisions of executive officials not to impose costs or penalties on
third parties. See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Linda
R. S.v. Richard D., 410 U.S. 614 (1973); Simon v. Eastern Ken-
tucky Welfare Rights Organization, 426 U.S. 26 (1976) (EKWRO).
For example, in Linda R. S., the Court found it speculative that
the plaintiff's requested relief—the prosecution of someone alleged
to be delinquent in child support payments—would result in the
payment of support. 410 U.S. at 618; see also EKWRO, 426 U.S. at
42-43 (finding it speculative that denial of a tax exemption to hos-
pitals providing insufficient free medical care would increase the
availability of such care); Allen v. Wright, 468 U.S. at 758-759
(finding it speculative that withdrawal of tax exemption to racially
discriminatory private schools would change schools’ exclusionary
policies). In those cases, the Court found that the requested relief
would not redress the injury alleged.

10

stations carrying NPR, it does not provide a well devel-
oped factual setting for evaluating the court of appeals’
application of this Court’s injury-in-fact cases to the
context cf viewer and listener standing. Moreover, be-
cause petitioner’s complaint did not specify what sanc-
tions he sought from the FCC,’ the record in this case
does not present a firm basis for evaluating the redress-
ability of his alleged injury. Indeed, it is far from clear
that the D.C. Circuit would reject a complaint such as
petitioner’s seeking certain forms of relief. For exam-
ple, among the remedies that the FCC may prescribe for
a violation of 18 U.S.C. 1464 is license revocation. See
47 U.S.C. 312(a)(6). Like nonrenewal, license revocation
is an “inherently future oriented” (Pet. App. 7a) remedy
that examines whether the particular licensee should be
exercising the public trust conferred by the license.
Under the court of appeals’ reasoning (ibid.), it would
appear that a complaint requesting license revocation
would be cognizable under the court’s reading of UCC.
Because of the imprecise nature of the relief requested
by petitioner’s complaint (and because the court of ap-
peals only considered potential fines), it is difficult to
evaluate the scope of the D.C. Circuit’s ruling and its
implications for future Section 1464 cases.” We therefore

? Petitioner’s May 18, 1989, complaint to the Mass Media Bu-
reau merely stated that “NPR SHOULD BE REQUIRED TO
MAINTAIN A POSITION OF CONTROL IN PROTECTING
THEIR PROGRAMS FROM POSSIBLY INDECENT AND OB-
SCENE MATERIAL.” App., infra, 2a.

5 Indeed, in his November 17, 1989, letter seeking review of the
Mass Media Bureau’s decision to dismiss his complaint, petitioner
emphasized that “MY COMPLAINT IS NOT AGAINST RADIO
STATION WSMC-FM, COLLEGEDALE, TN BUT IS AGAINST

NATIONAL PUBLIC RADIO THE ORIGINATOR OF THE
PROGRAM IN QUESTION.” App., infra, 3a. Because Section

11

believe that the ruling below requires further devel-
opment by the lower courts before this Court’s review is
warranted.

3. Finally, contrary to petitioner’s argument (Pet. 10-
12), there is no conflict among the circuits warranting
this Court’s review. Petitioner argues that the decision
below conflicts with the D.C. Circuit’s decisions in UCC
and its progeny. As discussed, however, the court of ap-
peals expressly distinguished UCC on the ground that
the appellant there had alleged a “pattern” of licensee
misconduct in the context of a license renewal proceed-
ing, which is “inherently future oriented.” Pet. App. 6a,
7a. In contrast, the record in this case does not clearly
disclose either the extent of petitioner’s potential expo-
sure to the alleged injury or the precise remedy sought.
In any case, petitioner’s allegation of an intra-circuit
conflict does not warrant this Court’s review.
Wisniewski v. United States, 353 U.S. 901, 902 (1957)
(per curiam).?

312(a)(6) provides for revocation of “any station license,” it ap-
pears that petitioner would not have been able to seek license revo-
cation under his complaint. It is unclear whether the court of ap-
peals’ ruling would have been different if petitioner had proceeded
against the station, rather than the program originator. This case
therefore presents no occasion for determining whether a com-
plainant would have standing in a proceeding against a broadcast
station, which would face license renewal and revocation proceed-
ings.

In addition, before the FCC may impose forfeiture liability (i.e.,
a fine) on a person who does not have a “license, permit, certifi-
cate, or other authorization” issued by the FCC, the Commission
must give that person a warning. 47 U.S.C. 503(b)(5). Thus, it is
unclear whether the FCC would have the discretion to impose a
fine on NPR in this case.

% Petitioner also relies (Pet. 12) on Illinois Citizens Committee
for Broadcasting v. FCC, 515 F.2d 397 (D.C. Cir. 1974). There,

12

Nor is the decision below inconsistent with the Sev-
enth Circuit’s decision in Maier v. FCC, supra. There,
the court held that the mayor of Milwaukee had standing
to challenge the Commission’s decision that a broad-
caster had not violated the fairness doctrine and the per-
sonal attack rule. In contrast with this case, the com-
plainant in Maier sought to remedy the alleged retro-
spective violation of his statutory rights by seeking spe-
cific and affirmative relief of “at least one-half hour free
air time of his own choosing on each of WTMJ’s broad-
cast outlets.” 735 F.2d at 223. Nothing in the D.C. Cir-
cuit’s opinion suggests that it would find that standing
did not exist in similar circumstances.

The Ninth Circuit’s decision in ACLU v. FCC, 523
F.2d 1344 (1975), also presents no conflict with the deci-
sion in this case. In ACLU, the court recognized viewer
and listener standing in conformity with the D.C. Cir-
cuit’s decision in UCC. See ACLU, 523 F.2d at 1347.
The ACLU was challenging aspects of the Commission’s
cable regulations,’® arguing that they did not fulfill the

the court of appeals allowed members of the listening public to in-
tervene to challenge the FCC’s decision to impose fines on a radio
station for violating Section 1464. The radio station did not itself
appeal, and the court found that listeners had standing on the basis
that “the Commission must pay careful attention to ensure that the
freedom of substantial numbers of the listening public is not cur-
tailed because of possible offensiveness to particularly sensitive lis-
teners.” 515 F.2d at 406. Whatever the merits of petitioner’s
standing in this case, he possesses no First Amendment interest
similar to the one supporting standing in J/llinois Citizens
Committee for Broadcasting. In any case, any tension between
that decision and the decision below is for the D.C. Circuit to
resolve.

10 Specifically, the ACLU challenged the Commission’s failure
to impose common carrier obligations on cable access channels and
to limit cablecasting by cable operators. 523 F.2d at 1346.

13

asserted requirement of the Communications Act to
maximize sources of programming. At the outset, the
court in ACLU held that “{i]f ACLU’s claim is meritori-
ous, standing exists; if not, standing not only fails but
also ceases to be relevant.” /d. at 1348. Significantly,
the court went on to find the ACLU’s claim un-
meritorious. /d. at 1350-1351. In any event, the ACLU
there sought an affirmative remedy requiring the FCC
to fulfill its alleged obligation to ensure the availability
of a diverse array of programming; that case did not
involve a complaint by someone seeking to avoid
exposure to certain programming.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW'S. Days, III
Solicitor General
WILLIAM E. KENNARD
General Counsel
Federal Communications
Commission

APRIL 1994

APPENDIX A

PETER BRANTON
1007 SCENIC HIGHWAY
LOOKOUT MTN, TN 37350

18 MAY ’89

FEDERAL COMMUNICATIONS COMMISSION
MASS MEDIA BUREAU

ENFORCEMENT DIVISION

COMPLAINTS AND INVESTIGATION BRANCH
1919 M STREET

WASHINGTON, DC 20554

DEAR SIRS,

THIS IS IN FURTHER REFERENCE TO MY
LETTER OF 10 FEB 1989 TO UNITED STATES
SENATOR ALBERT GORE, JR AND MR ALEX D.
FELKER’S REPLY TO SENATOR GORE.

MY COMPLAINT IS REGARDING A NATIONAL
PUBLIC RADIO BROADCAST OF 8 FEB 1989 AND
CARRIED IN THIS AREA BY RADIO STATION
WSMC, COLLEGDALE [SIC], TN. A PART OF THE
PROGRAM “ALL THINGS CONSIDERED” CON-
TAINS A TRANSCRIPT OF A TELEPHONE CON-
VERSATION BY A PERSON IDENTIFIED AS “MR
JOHN GOTTI”, AND A TAPE OF THIS PORTION IS
ENCLOSED.

MR FELKER’S LETTER OUTLINES A “THREE-
PRONG TEST” FOR OBSCENE MATERIAL AND I
FEEL THAT IT REQUIRES VERY LITTLE IMAGI-
NATION TO SEE THAT THIS BROADCAST WILL

(la)

2a

PASS ALL SEGMENTS OF THE TEST WITH FLYING
COLORS. FURTHERMORE, THE ENCLOSED TAPE
OF THIS BROADCAST CONTAINS THE PRELI-
MARY [SIC] ADMISSION THAT THE LANGUAGE IS
“EXTREMELY PROFANE” AND CERTAINLY THE
LANGUAGE IS SUCH AS DESCRIBED BY MR
FELKER AS “INDECENCY” PER THE DEFINATION
[SIC] OF THE COMMISSION.

PERSONS FROM RADIO STATION WSMC HAVE
ADVISED ME THAT A “DAX” WARNING FROM NPR
WAS ISSUED CONCERNING THIS PROGRAM, BUT
WAS INADVERTENTLY IGNORED, MUCH TO THE
EMBARRASSMENT OF THE STATION. THIS
INCIDENT EMPHASES [S/C] THAT A WARNING OF
THIS TYPE IS NOT SUFFICIENT PROTECTION
AND RAISES THE PRIMARY QUESTION OF THE
ADVISABILITY AND NECESSITY OF ORIGINATING
A BROADCAST CONTAINING SUCH INDECENT
AND OBSCENE MATERIAL.

I FEEL THAT I AM NOT ALONE IN MY DEEP
CONCERN REGARDING THE DETERIORATION OF
MORAL STANDARDS IN OUR GREAT COUNTRY
AND I FEEL THAT NPR SHOULD BE REQUIRED
TO MAINTAIN A POSITION OF CONTROL IN
PROTECTING THEIR PROGRAMS FROM POSSIBLY
INDECENT AND OBSCENE MATERIAL.

YOURS TRULY,

/s/ Peter Branton
PETER BRANTON

CC: SENATOR ALBERT GORE, JR
MR ALEX D. FELKER
RADIO STATION WSMC
NATIONAL PUBLIC RADIO

ee

3a

APPENDIX B

PETER BRANTON
1007 SCENIC HIGHWAY
LOOKOUT MTN., TN 37350

17 NOV ’89

MS EDYTHE WISE, CHIEF

COMPLAINTS & INVESTIGATIONS BRANCH
ENFORCEMENT DIVISION

MASS MEDIA BUREAU

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

DEAR MS WISE,

THANK YOU FOR YOUR LETTER OF OCT 26, 1989
(COPY ATTACHED).

FIRST I WOULD LIKE TO MAKE IT CLEAR THAT
MY COMPLAINT IS NOT AGAINST RADIO STATION
WSMC-FM, COLLEGEDALE, TN BUT IS AGAINST
NATIONAL PUBLIC RADIO THE ORIGINATOR OF
THE PROGRAM IN QUESTION.

SECOND, I FIND IT DIFFICULT TO UNDER-
STAND HOW YOU COULD POSSIBLY FEEL THAT
THE LANGUAGE IN THIS BROADCAST OF 8 FEB
1989 TO BE LESS THAN IN VIOLATION OF ANY
STANDARDS OF “OBSCENE OR INDECENT
MATERIAL”. IF, IN FACT, THIS IS DEEMED TO BE
ACCEPTABLE, I FIND IT HARD TO IMAGINE WHAT
WORDS OF OUR LANGUAGE COULD BE CON-
SIDERED “ACTIONABLY INDECENT”. IF IT
MAKES ANY DIFFERENCE, I REMIND YOU THAT

4a

THE BROADCAST CONTAINED A PRELIMARY
[SIC] ADMISSION THAT THE LANGUAGE IS
“EXTREMELY PROFANE” AND I FURTHER NOTE
THAT THE WORD THAT WAS REPEATED
NUMEROUS TIMES IN THE BROADCAST IS
IDENTIFIED AS “OBSCENE” IN THE AMERICAN
HERITAGE DICTIONARY”, PUBLISHED BY
HOUGHTON MIFFLIN CO, BOSTON. I ALSO REFER
YOU TO THE ATTACHED LETTER CF 4 APRIL, 1989
TO SENATOR ALBERT GORE FROM ALEX D.
FELKER, CHIEF, MASS MEDIA BUREAU, IN
WHICH MR FELKER STATES, “HOWEVER, WE CAN,
AND WILL, TAKE ACTION AGAINST THE
BROADCAST OF OBSCENE OR INDECENT
MATERIAL”.

IF YOUR DECISION, AS STATED IN YOUR
LETTER OF 26 OCT, REMAINS UNCHANGED,
PLEASE ADVISE IF IT [S/JC] IS ANY PROCEDURE
OF APPEAL THAT I MAY FOLLOW. YOUR REPLY
WILL BE APPRECIATED.

YOUR VERY TRULY,
/s/ Peter Branton

PETER BRANTON

CC MR ALEX D. FELKER
SENATOR ALBERT GORE, JR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1717%3A3. Public record. Not legal advice.