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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995

## Text

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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

i
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.

ii

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.

iv
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

Vv
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

12

12

13

vi
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

2

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).

3

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

4

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

5

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.

6

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

7

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.”

8

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

9

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

10

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

11

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

12

. . . [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.

13

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

14

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).

15

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
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

*Counsel of Record reo es
PEARSON

122 South Hall Street

Montgomery, AL 36104

(334) 262-7707

Counsel for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1768%3A2. Public record. Not legal advice.