Opposition Brief — Federal Communications Commission v. Miller (Nos. 95-1200, 95-1197)

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a FEB 26 17%6

Nos. 95-1197 and 95-1200

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, PETITIONERS (NO. 95-1200), and

National Association of Broadcasters, et al.,

Petitioners (No. 95-1197),

v Petitioners,

ZELL MILLER, et al.,

Respondents.

On Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITIONS FOR WRITS OF CERTIORARI

ALBERT G. NORMAN, JR.* ROY E. BARNES

GORDON D. GIFFIN MICHAEL JABLONSKI

BARBARA A. MCINTYRE ROBERT S. KAHN

L. CRAIG DOWDY BARNES, BROWNING,

LONG, ALDRIDGE & TANKSLEY & CASURELLA

NORMAN 166 Anderson Street

303 Peachtree Street Suite 225

Suite 5300 Marietta, GA 30308

Atlanta, GA 30308 (770) 424-1500

(404) 527-4000

ROGER S. MORROW

“Counsel of Record MORROW, ROMINE &

PEARSON

122 South Hall Street

Montgomery, AL 36104

(334) 262-7707

Counsel for Respondents

February 26, 1996

QUESTIONS PRESENTED

Section 315(b) of the Communications Act of 1934 pro-

vides that during certain periods the charges made for use of any

broadcasting station by any legally quaiified candidate for public

office shall not exceed the lowest unit charge of the station for

the same class and amount of time for the same period. The

Federal Communications Commission (“FCC”’) issued a declar-

atory ruling purporting to preempt all state causes of action

dependent on any determination of the lowest unit charge under

Section 315(b), or of any other duty arising under that subsec-

tion, and purporting to constitute the FCC as the sole forum for

adjudicating such matters. Based upon the record and the argu-

ments set forth in each Petition, the Respondents understand the

three questions presented by the Petitioners to be: (1) whether

the Respondents’ petition to the United States Court of Appeals

for the Eleventh Circuit, for review of the Declaratory Ruling

pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342, presented a

justiciable case or controversy, and (2) if Respondents presented

a justiciable case or controversy, whether the FCC has authority

to issue a declaratory ruling purporting to preempt any such

matters and purporting to constitute itself as the exclusive forum

for adjudicating any such matters, and (3) if the FCC has such

authority, whether the Declaratory Ruling was valid in this case.

PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

The petitioners in the court of appeals were Zell Miller;

Zell Miller For Governor; Pierre Howard; Georgians For How-

ard 90; Johnny Isakson; Johnny Isakson For Governor; Andrew

Young; Young Working For Georgia; Lauren McDonald;

Lauren McDonald For Governor; Roy Barnes; Roy Barnes For

Governor; Tim Ryles; Tim Ryles For Insurance Commissioner;

Warren Evans; Warren Evans Election Committee; William L.

Dickinson, Second District Campaign Committee; William J.

Cabaniss; Friends of Bill Cabaniss Committee; Spencer T.

Bachus, III; Bachus For Attorney General Committee; John

Teague; James E. Folsom, Jr.; Jim Folsom, Jr. For Lieutenant

Governor Committee; Fob James; Fob James For Governor

Committee; Kenneth D. Wallis; Alabamians For Ken Wallis

Committee; George D.H. McMillan, Jr.; The McMillan Com-

mittee; George Wallace, Jr.; Wallace For Treasurer Committee;

Charles A. Graddick; Graddick For Governor Committee; Wil-

liam J. Baxley; Friends Of Bill Baxley; Paul Hubbert; Richard

Shelby; Don Siegelman; Jimmy Sullivan; Sonny Hornsby;

Friends of E.C. Sonny Hornsby; Mark Kennedy; Judge Mark

Kennedy For Supreme Court; and Friends Of Judge Mark Ken-

nedy (collectively, the “Candidates”). The Candidates are the

Respondents in this Court in Nos. 95-1197 and 95-1200, and have

filed, simultaneously herewith, a conditional consolidated Cross-

Petition For a Writ of Certiorari in Nos. 95-1197 and 95-1200.

The United States and the Federal Communications Com-

mission were respondents in the court of appeals, and are the

Petitioners in No. 95-1200.

Respondents-intervenors in the court of appeals were Capi-

tal Cities/ABC, Inc.; Chris-Craft Industries, Inc.; The Times Mir-

ror Company; American Family Broadcast Group, Inc.;

Allbritton Communications Company; CBS, Inc.; Chronicle

Publishing Co.; Fox Television Stations, Inc.; Gillett Broadcast-

ing of California, Inc.; Gillett Communications of San

ili

Diego, Inc.; Great American Television and Radio Com-

pany, Inc.; Kelly Broadcasting Company; Kelly Television Com-

pany; Lin Television Company; McCraw-Hill Broadcasting

Company, Inc.; Midwest Television, Inc.; National Broadcasting

Company, Inc.; The New York Times Company; Post-Newsweek

Stations, Inc.; The Providence Journal Company; The Spartan

Broadcasting Company; Tribune Broadcasting Company; West-

inghouse Broadcasting Company, Inc.; WKRG-TV, Inc.;

WIVT, Inc.; Meredith Corporation; A.H. Belo Corporation;

Cosmos Broadcasting Corporation; Cox Enterprises, Inc.; and

the National Association of Broadcasters (collectively, the

“Broadcasters”). The Broadcasters filed a separate Petition For

A Writ of Certiorari, docketed in this Court as No. 95-1197.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...........5......

PARTIES TO THE PROCEEDINGS

tome Fes 8 es, wer reer rere re

REASONS FOR DENYING THE PETITIONS . .

ee et | PEM ERUREEEE LEER EE eee

TABLE OF AUTHORITIES

CASES:

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) .. .

Amalgamated Ass'n of Street, Elec. Ry., and

Motorcoach Employees v. Lockridge, 403 U.S. 274

ted 25s chavs Fausees os eee sc,

Breininger v. Sheet Metal Workers Int’l Ass’n Local

Union No. 6, 493 U.S. 67 (1989).............

Califano v. Sanders, 430 U.S. 99 (1977) .........

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) . . .

Chicago & Southern Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103 a ae

Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert.

denied, 429 U.S. 890 (1976) ................

City of New York v. FCC, 486 U.S. 57 (1988) .....

Civil Aeronautics Bd. v. American Air

Transport, Inc., 344 U.S. 4 (1952) ............

Communications Workers v. Beck, 487 U.S. 735

GRRE ove sh t ee

Dickinson v. Cosmos Broadcasting Co., Circuit

Court for Montgomery, Alabama, Case

No. CV-91-67-P (Order, released Sept. 23, 1991) .

Dickinson v. Cosmos Broadcasting Co., Civil Action

No. 91-T-072-N (M.D. Ala.) (Order, released

Me MME SG toe cae: yc

Farmers Educ. and Coop. Union v. WDAY, Inc., 360

Ny EE 8 6b SESS Us cis CoS en

FCC v. Allentown Broadcasting Corp., 349 U.S. 358

CIRO SRS RE FASE A Ree RAW oe 4

Federal Maritime Comm’n v. Seatrain Lines, Inc.,

413 US. THO Ce Ber 9

Flast v. Cohen, 392 U.S. 83 (1968) ............ 4

Hayburn’s Case, 2 Dall. 409 (1792) ............ 7

Houston Post Co. v. United States, 79 F. Supp. 199

CD. "Tam: SOGR) os 0s Vor ie AtE 13-14

In re Port Huron Broadcasting Co., 12 FCC 1069

COED en bod 5 eR SaaS eee eee 12-13

International Long Shoremen’s Ass’n v. Davis, 476

US. Sa0 CSR iio, (8S. Bie a ees 14

Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355

CRSBB) 605 ce SU eS ew es enV Reece cee 5

Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60

CRDES) 0 nn 6 4 des os CoP ED AEE Eka ee aoe 7

Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344

6. er merry ar Banc tS 8

Maryland v. Louisiana, 451 U.S. 725 (1981) ...... 5

McCutcheon v. Smith, 199 Ga. 685, 35 S.E.2d 144

(IDGG) canbe cue OVC eMC Tae teents 8

Mintz v. Baldwin, 289 U.S. 346 (1933) .......... 5

National Ass’n of Regulatory Util. Comm'rs v. FCC,

746 F.2d 1492 (D.C. Cir. 1984).............. 10

National Broadcasting Co. v. United States, 319 U.S.

190 (19GB) gs 5 0 LEG os GIS. ESRI SS 6

vii

New York State Comm’n on Cable Television v.

FCC, 669 F.2d 58 (2d Cir. 1982)............ . 10-11

New York State Comm’n on Cable Television v.

FCC, 749 F.2d 804 (D.C. Cir. 1984) .......... 10

Piper v. Chris-Craft Indus., 430 U.S. 1 (1977) ..... 9-10

Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447

NN es Ga a POR ee bie ds bos SCANS 6-8

San Diego Bldg. Trades Council v. Garmon, 359

A PREC OS eee aes ee re on” 14

State Corp. Comm’n v. FCC, 787 F.2d 1421 (10th

Ci CEE a He Nas slaw tGiteb Jae SOE 10

Tafflin v. Levitt, 493 U.S. 455 (1990) ........... 5

Town of Deerfield v. FCC, 992 F.2d 420 (2d Cir.

RI ee tae ee ge er 8, 11-12

United States v. Klein, 13 Wall. 128, 20 L. Ed. 519

CU ie ae ek a ok as 7

Zell Miller For Governor v. Pac. & S. Co.,

No. 1:91-CV-267-RLV (N.D. Ga. June 4, 1991),

vacated, No. 91-8561 (11th Cir. Dec. 28, 1992). . . 1

CONSTITUTIONAL PROVISIONS:

Ge 7, 8

STATUTES AND REGULATIONS:

URC WI 0 8 or. i, 2

Communications Act of 1934, 47 U.S.C. § 151 et ;

AE a a area ang gear peere a err eae

Section: 31k i066 EA BEV KS 2

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POU DUOMO cs + < vcaieig cuitve ehh ade Hs 13

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CINE: SROUR: # out > Pare avs cok Chote 6

ME SED Fs cas Kn a> 00.6 dane oes 3

PIU Sn ss ab bo es wh as Sees i

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2 CRM, SMITA. 3. SS 2k AAs 8

47 CER: § 25.100(1902) 605. A 11

STATEMENT OF THE CASE

Respondents are legally qualified candidates for public

Office (the “Candidates”) who filed a petition in the United

States Court of Appeals for the Eleventh Circuit to review an

order (the “Declaratory Ruling”) issued by the Federal Commu-

nications Commission (“FCC”). The Petitioners in this Court

are the United States of America and the FCC (the

“FCC”)(Case No. 95-1200), and the owners of various television

broadcast stations regulated by the FCC (collectively, the

“Broadcasters”)(Case No. 95-1197). The Candidates adopt the

Petitioners’ Statements of the Case, except as follows:

(1) ~The judgment of the United States District Court

for the Northern District of Georgia in the Zell Miller case

described in the Petition for a Writ of Certiorari filed by the

FCC, No. 95-1200 (hereinafter the “FCC Petition’) at

page 8, holding that there is no implied federal cause of

action for violations of Section 315(b), has been vacated.

See Zell Miller For Governor v. Pac. & S. Co.,

No. 1:91-CV-267-RLV (N.D. Ga. June 4, 1991), vacated,

No. 91-8561 (11th Cir. Dec. 28, 1992).

(2) Inthe Declaratory Ruling, the FCC ruled that “any

state cause of action dependent on any determination of the

lowest unit charge under Section 315(b) of the Communica-

tions Act of 1934, or of some other duty arising under that

subsection, is preempted by federal law. The sole forum for

adjudicating such matters shall be this Commission.”

Appendix to FCC Petition (hereinafter “FCC App.”) at 16a

(emphasis added). Various characterizations of the Declar-

atory Ruling by the Petitioners describe the matters which

the FCC purported to preempt more narrowly than such

matters were described by the FCC in the Declaratory Rul-

ing. The Declaratory Ruling does not, as appears to be

suggested in the Petitions,’ purport to limit its preemptive

effect to state causes of action alleging violations of Sec-

tion 315(b); the Declaratory Ruling extends to all matters

dependent upon any determination of any duty imposed

upon broadcasting stations by Section 315(b).

(3) As set forth below in the Reasons for Denying the

Petitions, the Candidates do not agree with the legal argu-

ments included within the Statement of the Case set forth at

page 4 of the Broadcasters’ Petition, to the effect that the

decision of the court of appeals conflicts with prior deci-

sions of this Court and decisions of other courts of appeals.

(4) The FCC states that it has “adjudicated numerous

disputes between candidates and broadcasters over political

advertising charges” and that it has “ordered rebates to

candidates” for violations of Section 315(b). FCC Petition at

5. This statement gives the erroneous impression that the

FCC has the authority to issue orders to pay refunds which

are enforceable by candidates. In fact, the FCC’s authority

is limited to the imposition of administrative sanc-

tions (47 U.S.C. § 312) (e.g. license revocation), or forfeiture

penalties (47 U.S.C. § 503(b)). None of the orders referred

1 See FCC Petition at I (“whether the court of appeals should have

upheld the Federal Communications Commission’s (FCC) authority to

provide, by declaratory ruling, that causes of action purportedly based on

state law but alleging violations of the federal “lowest unit charge” require-

ment are preempted, and that all such disputes over violation of that require-

ment must be adjudicated by the FCC, subject to judicial review exclusively

in the federal courts of appeals.”) (emphasis added); Petition For a Writ of

Certiorari of National Association of Broadcasters, et al, No. 95-1197 (here-

inafter “Broadcasters’ Petition) at i (““The Federal Communications Com-

mission issued a declaratory ruling that pre-empted all state law claims that

purport to be based upon a violation of Section 315’s lowest unit charge

requirement.”) (emphasis added); id. (“Whether challenges to an FCC

order pre-empting state law causes of action based solely on alleged viola-

tions of the “lowest unit charge” requirement in Section 315 (b) are review-

able by a court of appeals pursuant to Section 402 (a) of the

Communications Act and 28 U.S.C. § 2342, and whether that preemption

order was valid.”) (emphasis added).

to in the FCC’s Petition was enforceable by candidates

themselves. Section 401(b) of the Communications Act,

moreover, specifically excludes orders for the payment of

money from the category of orders which may be enforced

by the courts.

REASONS FOR DENYING THE PETITIONS

The Petitioners ask this Court to review three questions:

(1) whether the Candidates’ petition to the court of appeals to

review the Declaratory Ruling presented a justiciable case or

controversy, (2) if so, whether the FCC had authority to issue

the Declaratory Ruling, and (3) if so, whether the Declaratory

Ruling was valid. By presenting not only the first two questions

(which were addressed by the court of appeals), but also the third

question (which the court of appeals did not reach), the Petition-

ers are asking this Court to disregard the actual holding of the

court of appeals: “Because we conclude that no case or contro-

versy is presented, we DISMISS the petition for review.” FCC

App. at 15a.

The Candidates respectfully submit that the only questions

the Petitioners could present properly to this Court at this time

would be whether the Candidates’ petition for review presented

a justiciable case or controversy, and whether the FCC had

authority to issue the Declaratory Ruling, because those are the

only issues actually addressed by the court of appeals. “This

Court does not normally review orders of administrative agen-

cies in the first instance . . ..” Civil Aeronautics Bd. v. American

Air Transport, Inc., 344 U.S. 4, 5 (1952). In the event that this

Court were to conclude that the Candidates presented a justicia-

ble case or controversy, and that the FCC had authority to issue

the Declaratory Ruling, the proper disposition would be to

remand this proceeding to the court of appeals to review the

validity of the Declaratory Ruling. See FCC v. Allentown Broad-

casting Corp., 349 U.S. 358, 365 (1955):

The correction of errors of law by a Court of Appeals

on review of administrative agencies is committed to

this Court through its certiorari jurisdiction. We have

found such errors of law in the decision of the Court of

Appeals. Therefore, the decision below cannot stand.

But it is not our function to reinstate the determination

of the Commission. That would make this Court the

reviewing body of the ultimate determination of the

Commission. The proper disposition is to remand the

case to the Court of Appeals for reconsideration of the

record but freed from rulings declared erroneous in

this opinion.

On the issue of the FCC’s authority to issue the Declaratory

Ruling, before dismissing the Candidates’ petition, the court of

appeals expressed its view that “Congress has not delegated, and

could not delegate, the power to any agency to oust state courts

and federal district courts of subject matter jurisdiction .

FCC App. at 10a. As a result, the court of appeals concluded that

the Declaratory Ruling would not preclude any candidate from

seeking judicial relief in any court, and that the courts would be

free to decide the preemption issue in any case filed by any

candidate. FCC App. at 15a. Having concluded that the courts

were free to decide the preemption issue, the court of appeals

declined to give an “advisory opinion” on whether Congress

itself intended the preemptive effect set forth in the Declaratory

Ruling. See Flast v. Cohen, 392 U.S. 83, 94-95 (1968).

The Candidates submit that, having concluded correctly

that the FCC had no authority to issue the Declaratory Ruling,

the court of appeals properly declined to render an advisory

opinion on the issue of Congressional intent.? Certiorari should

be denied in this case because the court of appeals’ conclusion

that the FCC had no such authority does not conflict with any

decision of this Court, or of any other United States court of

appeals, or of any state court of last resort; does not present a

question which is not already settled by this Court; does not

depart from the accepted and usual course of judicial proceed-

ings; and does not call for an exercise of this Court’s supervisory

power. To the contrary, the court of appeals’ decision merely

reflects fundamental principles of constitutional law.

There is a “deeply rooted presumption in favor of concur-

rent state court jurisdiction.” Tafflin v. Levitt, 493 U.S. 455, 459

(1990). “Consideration under the Supremacy Clause starts with

the basic assumption that Congress did not intend to displace

state law.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981). The

“purpose of Congress to supersede or exclude state action .. .

is not lightly to be inferred. The intention to do so must definitely

and clearly appear.” Mintz v. Baldwin, 289 U.S. 346, 350 (1933).

In Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

(1986), this Court held that an administrative agency:

literally has no power to act, let alone pre-empt the

validly enacted legislation of a sovereign State, unless

and until Congress confers power upon it. . . . [The]

best way of determining whether Congress intended

the regulations of an administrative agency to displace

state law is to examine the nature and scope of the

authority granted by Congress to the agency.

The nature of the authority granted by Congress to the FCC

is limited in scope to matters involving regulation of interstate

and foreign communications by wire and radio. The FCC has no

? Because the court of appeals was clearly correct in concluding that the

FCC had no authority to issue the Declaratory Ruling, it is the position of

the Candidates that the issue of whether the court of appeals should have

entertained the petition and set the Declaratory Ruling aside (rather than

dismissing the petition) would not, alone, warrant certiorari in this case.

authority or duty to investigate, determine policy, or formulate

rules, with respect to preemption of state causes of action or the

jurisdiction of any court. See Federal Communications Act,

47 US.C. §§ 151-613 (the “Communications Act’’).

The FCC’s authority in Section 315(d) of the Communica-

tions Act to adopt rules to “carry out” Section 315 does not

enlarge its jurisdiction. Section 315(d) simply permits the FCC to

elaborate on the meaning of the various terms used in Sec-

tion 315, and reflects:

Congress’ decision not to legislate in detail, but rather

to set out broad categories . . . and leave the Com-

mission with the task of implementing Congressional

intent.

Chisholm v. FCC, 538 F.2d 349, 357 (D.C. Cir.), cert. denied, 429

U.S. 890 (1976).

The Communications Act explicitly provides that it does

not “in any way abridge or alter the remedies now existing at

common law or by statute, but the provisions of this chapter are

in addition to such remedies.” 47 U.S.C. § 414. Although Sec-

tion 303 of the Communications Act authorizes the FCC to

exercise various powers with respect to interstate communica-

tions in wire and radio as the public convenience, interest and

necessity may require, “[t]his criterion is not to be interpreted as

setting up a standard so indefinite as to confer an unlimited

power.” National Broadcasting Co. v. United States, 319 U.S. 190,

216 (1943).

Even if Congress had delegated the authority to the FCC to

preempt state law causes of action, this Court’s recent decision in

Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995) indicates

that such a delegation would have been unconstitutional, at least

as applied to the federal courts in diversity cases. In Plaut, this

Court held unconstitutional a federal statute which purported to

provide for reinstatement of certain types of securities fraud

claims previously held time-barred by this Court. In so holding,

this Court identified at least three types of legislation which

could require a federal court to exercise judicial power in a

manner that Article III forbids:

The first appears in United States v. Klein, 13 Wall. 128,

20 L. Ed. 519 (1872), where we refused to give effect to

a statute that was said “[t]o prescribe rules of decision

to the Judicial Department of the government in cases

pending before it.” Jd., 13 Wall. at 146. . . . The sec-

ond type of unconstitutional restriction upon the exer-

cise of judicial power identified by past cases is

exemplified by Hayburn’s Case, 2 Dall. 409 (1792),

which stands for the principle that Congress cannot

vest review of the decisions of Article III courts in

officials of the Executive Branch. See, e.g., Chicago &

Southern Air Lines, Inc..v. Waterman S.S. Corp., 333

U.S. 103 . . . (1948). . . . Article III establishes a

“judicial department” with the “‘province and

duty . . . to say what the law is” in particular cases

and controversies. Marbury v. Madison, 1 Cranch 137,

177, 2 L. Ed. 60 (1803). The record of history shows

that the Framers crafted this charter of the judicial

department with an expressed understanding that it

gives the Federal Judiciary the power, not merely to

rule on cases, but to decide them, subject to review only

by superior courts in the Article III hierarchy — with

an understanding, in short, that “a judgment conclu-

sively resolves the case” because “a ‘judicial Power’ is

one to render dispositive judgments.”

Id. at 1452-1453 (citations omitted). 7

The Declaratory Ruling purports to prescribe a rule of

decision in federal diversity cases by stating that “any state cause

of action depending on any determination of the lowest unit

charge under Section 315(b) or of some other duty arising under

that subsection that is initiated in a federal court pursuant to

diversity jurisdiction also is preempted and should be dismissed.”

FCC App. at 40a-41a n.8 (emphasis added). Depending on how

the FCC or the broadcasters would seek to enforce the Declara-

tory Ruling, the ruling could implicate the other two Article III

types of cases identified in Plaut as well. See, e.g., Town of Deer-

field v. FCC, 992 F.2d 420 (2d Cir. 1993), discussed in Section 2(a)

below.

In the only opinion of this Court which appears to have

addressed a similar situation involving a federal agency, this

Court held that a Department of Labor regulation (29 C.ER.

§ 500.122(b)), which purported to provide that state workers’

compensation benefits constituted an exclusive remedy, was

entitled to no deference by the courts:

Congress clearly envisioned, indeed expressly man-

dated, a role for the Department of Labor in adminis-

tering the statute by requiring the Secretary to

promulgate standards implementing [the Agricultural

Worker Protection Act] motor vehicle provisions. This

delegation, however, does not empower the Secretary

to regulate the scope of judicial power vested by the

3 This fundamental distinction between judicial functions and legislative

functions is recognized in state constitutions as well. See, e.g. Martin v.

Baldwin, 215 Ga, 293, 299, 110 S.E.2d 344, 350 (1959) (quoting McCutch-

eon v. Smith, 199 Ga. 685, 685, 35 S.E.2d 144, 145 (1945):

The resolution made no change in [the Georgia statute], but

merely declared the legislative intent. This “is clearly an attempt

by the legislature to perform a judicial function by construing a

law, and offends [the separation of powers provisions of the

former Georgia Constitution] and is void.”

Se ae

statute. Although agency determinations within the

scope of delegated authority are entitled to deference,

it is fundamental “that an agency may not bootstrap

itself into an area in which it has no jurisdiction.”

Accordingly, the Secretary’s conclusion that workers’

compensation benefits, where available, provide the

exclusive remedy for violations of AWPA is not entitled

to Chevron deference.

Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990) (quoting

Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S. 726,

745 (1973)).

The Petitioners attempt to justify the FCC’s authority to

issue the Declaratory Ruling by making two arguments: (1) the

Petitioners argue that the FCC has the authority to issue a ruling,

binding upon all state courts and federal courts in diversity cases,

that Congress intended to preempt all state law causes of action

dependent upon any determination under Section 315(b), and

that Congress intended the sole forum for adjudicating such

matters to be the FCC; and (2) even if such Congressional intent

is lacking, the Petitioners argue that the Declaratory Ruling can

be justified as an exercise of plenary power by the FCC to pre-

empt state law causes of action dependent upon any determina-

tion under Section 315, and to oust the jurisdiction of the state

courts, and the federal courts in diversity cases, to adjudicate

such matters. These positions are contrary to the precedents of

this Court.

1. Binding Interpretation of Congressional Intent. The

FCC first attempts to justify the Declaratory Ruling as a proper

interpretation of Congress’ intent to preempt various state law

causes of action. This Court, however, has specifically stated that

this type of issue is one peculiarly reserved for judicial

resolution. See Piper v. Chris-Craft Indus., 430 U.S. 1, 42 n.27

(1977):

[The SEC’s] presumed “expertise” in the securities-law

field is of limited value when the narrow legal issue is

one peculiarly reserved for judicial resolution, namely

whether a cause of action should be implied by judicial

interpretation in favor of a particular class of litigants.

See also Califano v. Sanders, 430 U.S. 99, 109 (1977)

(“Constitutional questions obviously are unsuited to resolution

in administrative hearing procedures and, therefore, access to

the courts is essential to the decision of such questions.”).

2. FCC's Plenary Authority to Preempt. If Congressional

intent is lacking, the Petitioners argue that the FCC itself had

plenary authority to preempt all state causes of action requiring

a determination of the lowest unit charge, and plenary authority

to oust the state courts (and the federal courts in diversity cases)

of jurisdiction over such matters, in order to insure uniform

interpretations of Section 315(b). Neither the FCC nor the

Broadcasters cited any precedent, nor to the knowledge of the

Candidates does any exist, where the FCC or any other federal

agency has purported to preempt a state law cause of action or to

oust state courts (or federal courts in diversity cases) of

jurisdiction.

All prior preemption orders issued by the FCC involved the

preemption of inconsistent state regulations of wire and radio.

See, e.g., City of New York v. FCC, 486 U.S. 57 (1988)(preemption

of signal-quality regulation of cable television); State Corp.

Comm’n v. FCC, 787 F.2d 1421 (10th Cir. 1986)(preemption of

state utility commission’s altering of sampling periods used by

local telephone companies to allocate equipment costs); New

York State Comm’n on Cable Television v. FCC, 749 F.2d 804

(D.C. Cir. 1984)(preemption of state and local entry regulation

of SMATV systems); National Ass’n of Regulatory Util.

Comm'rs v. FCC, 746 F.2d 1492 (D.C. Cir. 1984)(preemption of

state restrictions on the resale and sharing of all interstate WATS

service used exclusively in interstate commerce); New York State

Comm’n on Cable Television v. FCC, 669 F.2d 58 (2d Cir.

1982)(preemption of New York cable television statute which

prohibited receipt of federally authorized pay programming on

MATV systems).

The Candidates have found only two cases where the FCC

purported to decide issues similar to those addressed in the

Declaratory Ruling. In both cases, the courts concluded that the

FCC acted beyond its authority.

(a) In Town of Deerfield v. FCC, 992 F.2d 420 (2d Cir. 1993),

the FCC had issued a regulation (47 C.FR. § 25.104 (1992)),

which purported to preempt state and local zoning ordinances

that differentiated between certain types of satellite antennas.

After four different courts had ruled in favor of the Town of

Deerfield and against the owner of a satellite antenna that a

specific zoning ordinance enacted by the Town of Deerfield was

not within the scope of the FCC’s preemption, the owner of the

satellite antenna petitioned the FCC for a ruling that the

Deerfield ordinance was, in fact, preempted, contrary to the

prior court rulings. The FCC issued the requested declaratory

ruling, and held that each of the four courts had decided the

preemption issue incorrectly. Town of Deerfield, 992 F.2d at 427.

The Town of Deerfield appealed the FCC’s ruling to the Second

Circuit. On appeal, the Second Circuit reversed the FCC’s

ruling, stating:

Congress cannot “prescribe a rule for the decision of a

cause in a particular way,” nor may Congress,

consistent with constitutional principles, provide for

executive branch review of a judicial determination.

Simply put, if a judgment of an Article III court were

subject to revision by a coordinate branch, it would not

be the exercise of judicial power. Since neither the

legislative branch nor the executive branch has the

power to review judgments of an Article III court, an

administrative agency such as the FCC, which is a

creature of the legislative and executive branches,

similarly has no such power.

* * * a

. . . [T]he Commission in effect sought to modify the

jurisdiction of Article III courts, with respect to any

issue of the preemptive effect of § 25.104, to deprive

them of the power to render anything but advisory

opinions. . . . [The] Commission plainly has no

power to request or require such a court to render an

opinion that is merely advisory. Nor has the

Commission called to our attention any authority —

and we are aware of none — giving it the power to

prevent an Article III court from performing its duty to

render a binding judgment in a live case or controversy.

Town of Deerfield, 992 F.2d at 428-429 (citations omitted).

Under the reasoning of Town of Deerfield, the FCC does not

have the authority, as the Broadcasters argue to this Court, to

issue a declaratory ruling which purports to apply “not just

prospectively to bar future courts from suits to enforce

Section 315(b), but also retrospectively to bar suits initiated prior

to the issuance of the Ruling.” Broadcasters’ Petition at 19.4

(b) The only other case the Candidates have located where

the FCC purported to address a similar issue is In re Port Huron

‘ The specific case which the FCC apparently sought to bar retroactively

was Dickinson v. Cosmos Broadcasting Co., Circuit Court for Montgomery,

Alabama, Case No. CV-91-67-P (Order, released Sept. 23, 1991). See FCC

App. at 88a-89a. In that case, a federal district court in Alabama held that a

complaint filed in state court by a political candidate against a broadcaster

for an alleged violation of Section 315(b) did not present a federal question

warranting removal of the case to federal court, and was “essentially local

in nature.” The federal court remanded the case to the Alabama state

court for further proceedings. Dickinson v. Cosmos Broadcasting Co., Civil

Action No. 91-T-072-N (M.D. Ala.) (Order, released April 1, 1991). See

FCC App. at 89a. On remand, the state court denied the broadcaster’s

motion to dismiss on the grounds of preemption. Jd. at 93a n.8. In its Public

Notice issued on October 10, 1991, the FCC criticized the Cosrnos case,

and explicitly stated that “the Commission believes that it would be

advisable for courts to stay any ongoing proceedings pending the issuance

of any declaratory ruling as a result of this notice.” See FCC App. at 93a-94a

n.9.

Broadcasting Co., 12 FCC 1069 (1948). In that proceeding, in

connection with a broadcasters’ license application, the FCC

stated, gratuitously, that it believed that Section 315(a) of the

Communications Act required the broadcast of defamatory

material. This issue was not decided by this Court until eleven

years later in Farmers Educ. and Coop. Union v. WDAY, Inc., 360

U.S. 525 (1959), the case in which this Court held that there is

federal immunity for broadcasting defamatory material under

Section 315(a) of the Communications Act.

Since neither this Court nor any other court had yet ruled

on the immunity issue, shortly after the FCC issued its 1948

decision in Port Huron, a broadcasting station in Texas brought

an action in federal district court to annul the FCC’s ruling.

Houston Post Co. v. United States, 79 F. Supp. 199 (D. Tex. 1948).

The station stated that it had a policy of allowing political

candidates access to the media, and that unless the FCC’s

interpretation were set aside, the station would be placed in the

untenable position of either broadcasting defamatory

statements, or losing its station license for violation of

Section 315(a).

In Houston Post, the Texas federal court concluded that the

FCC could not have intended its opinion to have the force of law,

emphasizing that the subject matter of preempting state causes

of action was not one within the realm of the FCC’s authority or

expertise:

This subject matter in general is the reach and the

confines, respectively, of state and federal laws

operating in the same general field, a question of the

greatest difficulty and delicacy . . ..

* * a ”

. Indeed, in the uncertain and doubtful state of

the law as to the intent of Congress, in enacting the

section to exclude the operation of libel laws, we think

it judicially inconceivable that the Commission, a body

of public servants entrusted by Congress with powers of

supervision over communications by radio, could, with

considerations of fair play and just administration in

mind, have so ordered.

In the present state of the law, that is in the absence

of congressional action clarifying its intent and

purpose, or of authoritative judicial decision, we think

it doubtful that the Commission would have power to

lay down a binding rule or regulation of the nature of

that expressed in its opinion.

Houston Post, 79 F. Supp. at 203-204.

Similarly, in this case, the issue of preemption of state

causes of action, and the ouster of state court jurisdiction (and

federal diversity jurisdiction) are questions of great difficulty and

delicacy, with respect to which the FCC has no expertise. This

Court even has difficulty with these kinds of issues. For example,

this Court has described the issue of whether a state cause of

action is preempted by the National Labor Relations Act as a

“knotty problem” which has engendered literally hundreds of

court cases and “demonstrated the need for this Court to

provide a fuller explication of the premises upon which Garmon

rests . . ..” Amalgamated Ass’n of Street, Elec. Ry., and

Motorcoach Employees v. Lockridge, 403 U.S. 274, 277 (1971)

(referring to San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236 (1959)). The federal courts are frequently required to

wrestle with Garmon preemption issues.’ There is no hint in any

of these cases that any Garmon preemption issue could have

been resolved bv a plenary “preemption order” by the National

Labor Relations Board similar to the Declaratory Ruling issued

by the FCC in this proceeding.

5 See Breininger v. Sheet Metal Workers Int'l Ass’n Local Union No. 6, 493

U.S. 67 (1989); Communications Workers v. Beck, 487 U.S. 735 (1988);

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987); International Long

Shoremen’s Ass’n v. Davis, 476 U.S. 380 (1986).

The Candidates respectfully submit that it is inconceivable

that Congress intended for the FCC to issue a declaratory ruling

purporting to have any preemptive effect upon any state law

cause of action, or limiting the jurisdiction of any court, much

less the vaguely described, and all-encompassing preemptive

effect contemplated by this Declaratory Ruling. The Candidates

submit that the law in this area is settled, and needs no further

elaboration by this Court.

CONCLUSION

For the foregoing reasons, the Court should deny the peti-

tions for a writ of certiorari requested by the FCC and by the

Broadcasters.

Respectfully submitted,

ALBERT G. NORMAN, JR.* Roy E. BARNES