# Opposition Brief — Media General, Inc. v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1123

## Text

FICE OF THE CLERK

(S)
Nos. 04-1020, AC, 04- ) & 04-1168, and 04-

Jn the Supreme Court of the Gnited States

MEDIA GENERAL, INC., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, Respondents

ON PETITIONS AND CROSS-PETITIONS FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

BRIEF IN OPPOSITION FOR PUBLIC INTEREST
RESPONDENTS

ANGELA J. CAMPBELL ANDREW JAY SCHWARTZMAN*
KAREN HENEIN MEDIA ACCESS PROJECT
INSTITUTE FOR PUBLIC 1625 K Street, NW, Suite 1000
REPRESENTATION Washington, DC 20006
GEORGETOWN UNIVERSITY (202) 232-4300
LAW CENTER Counsel for Prometheus Radio
600 New Jersey Ave., NW Project, Fairness and Accuracy in
Suite 312 Reporting, and Center for Digital
Washington, DC 20001 Democracy
(202) 662-9535
Counsel for Media Alliance GLENN B. MANISHIN
and Office of KELLEY DRYE & WARREN, LLP
Communication of the 8000 Towers Crescent Drive #1200
United Church of Christ, Vienna, VA 22812
Inc. (703) 918-2322
Counsel for Consumer Federation
of America and Consumers Union

May 2, 2005 *Counsel of Record
[Additional Counsel Listed on Inside Cover]
Re ROY aE ROR AN AcE TOT ASR SD: NRT NATTA Ir RAN RR SAO HON

SHELBY D. GREEN

PACE UNIVERSITY SCHOOL
OF LAW

78 No. Broadway

White Plains, NY 10603

(914) 422-4421

Counsel for National

DAVID HONIG

NICOLAINE LAZARRE

MINORITY MEDIA &
TELECOMMUNICATIONS
COUNCIL

3636 16" St. NW, #B-366

Washington, DC, 20010

Council of the Churches of (202) 332-7005

Christ in the United States

Counsel for American Hispanic
Owned Radio Association, Civil
Rights Forum on Communications
Policy, League of United
Latin American Citizens,
Minority Business Enterprise
Legal Defense and Education
Fund, Minority Media and
Telecommunications Council,
National Asian American
Telecommunications Association,
National Association of
Latino Independent Producers,
National Coalition of Hispanic
Organizations, National
Council of La Raza, National
Hispanic Media Coalition,
National Indian Telecommuni-
cations Institute, National
Urban League, Native
American Public Telecommuni-
cations, Inc., PRLDEF—
Institute for Puerto Rican
Policy, Unity: Journalists of
Color, Inc., and Women’s
Institute for Freedom of the
Press

UF

QUESTIONS PRESENTED

Whether this Court should overrule its long-settled hold-
ings in Red Lion Broadcasting v. FCC and FCC v. Na-
tional Citizens Committee for Broadcasting that broad-
cast regulations receive rational basis review under the
First Amendment, that newspaper-broadcast cross-
ownership regulations do not impermissibly discriminate
in violation of the First or Fifth Amendment, and that
newspaper-broadcast cross-ownership regulations are
content-neutral. ,

Whether the court of appeals’ interpretation of §202(h) of
the 1996 Telecommunications Act accords with the deci-
sions of the only other court of appeals to have consid-
ered the issue.

Whether the court of appeals properly remanded for justi-
fication or modification certain aspects of the Federal
Communications Commission’s 2002 Biennial Regula-
tory Review Order that were not supported by the record
or that lacked reasoned analysis.

ii
CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court, Public
Interest Respondents state as follows:

Prometheus Radio Project, Fairness and Accuracy in
Reporting, Center for Digital Democracy, Media Alliance,
Office of Communication of the United Church of Christ,
Inc., Consumer Federation of America, Consumers Union,
American Hispanic Owned Radio Association, Civil Rights
Forum on Communications Policy, League of United Latin
American Citizens, Minority Business Enterprise Legal De-
fense and Education Fund, Minority Media and Telecommu-
nications Council, National Asian American Telecommuni-
cations Association, National Association of Latino Inde-
pendent Producers, National Coalition of Hispanic Organiza-
tions, National Council of La Raza, National Hispanic Media
Coalition, National Indian Telecommunications Institute, Na-
tional Urban League, Native American Public Telecommuni-
cations, Inc., PRLDEF—Institute for Puerto Rican Policy,
Unity: Journalists of Color, Inc., Women’s Institute for Free-
dom of the Press, and National Council of the Churches of
Christ in the United States have no parent companies or pub-
licly-issued stock.

ili

TABLE OF CONTENTS
QUESTIONS PRESENTED .........cccccccosscssssesscsccsscessseeccosseeeses 1
CORPORATE DISCLOSURE STATEMENT.............:seee0000 li
TABLE OF AUTHORITIES............cscccccosccssscscsccsscsccessscseessses Vv
ST AT RRIEIIN Ei cconscrcesicsaninsasancscsrecsscaessenensestqnstacueecoeceates piintnies 1
REASONS TO DENY THE WRIT .........:csscsssesseesseeeeeeeneees 2

I. PETITIONERS HAVE NOT DEMONSTRATED
ANY COMPELLING REASON TO OVERRULE
LONGSTANDING PRECEDENT .........:cccecsessseseeees 3

A. Petitioners Have Presented No Compelling
Reason to Revisit NCCB’s Holding That
Rational Basis Is The Appropriate Standard For
Review Of Broadcast Regulations .................s008 4

1. Neither Congress Nor The FCC Have
Signaled That This Court Should Reconsider
Its Approach To Broadcast Regulation........... 4

2. Spectrum Scarcity Continues To Exist As A

ie GE IR, scisesassniinipnnnscinictnceiamciniantnnnnin’ 8
3. There Is No Conflict Among The Circuits
Regarding The Scarcity Doctrine................... 9

B. Petitioners Have Presented No Compelling
Reason To Revisit NCCB’s Equal Protection

C. The Court Below Did Not Address Whether
Cross-Ownership Regulations Are Content-
Based; Nor Have Petitioners Presented Compel-
ling Reason To Revisit NCCB’s Holding That
Such Regulations Are Content-Neutral.............. 15

iv
D. Should The Court Wish to Reconsider

Its Constitutional Precedent, Other Cases
Offer A Better Opportunity For Fully

Il. THERE IS NO CONFLICT OVER THE
INTERPRETATION OF §202(h) OF THE 1996
TELECOMMUNICATIONS ACT .......c.cccccesssseeseees 17

II]. ROUTINE APPLICATION OF WELL-SETTLED
ADMINISTRATIVE LAW STANDARDS DOES
NOT MERIT THIS COURT’S INTERVENTION.. 21

CONC TATEIIIIEN caceccccscssssnsessenessrencsnteonsscsnssnsopensssnnangentonceniness 25

v

TABLE OF AUTHORITIES

Cases
Action for Children’s Television v. FCC, 58 F.3d 654

pei See Ia asitieiatsnteesincipiatiicnsnscessinnliniediassietntaniasnnaiteae 10
Adventure Communications, Inc. v. Kentucky Registry of

Election Fin., 191 F.3d 429 (4th Cir. 1999)... 10
American Family Ass'n, Inc. v. FCC, 365 F.3d 1156

Cie EENL Ae chicnhisgntsacstuntndinsanietmeesnion 8, 10, 11, 15, 16
Beach Television Partners, In re, 38 F.3d 535

Ee Gly OPO crip hcaucichancnbancihnckahclaenteimtiassitidiiennensantbisbinsisies 10
Black Hills Video Corp. v. FCC, 399 F.2d 65

Sy SN ieeitenctnidsissibcincicietinnsiditansinledhisieieietnadidntintiiibetan 10

Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750 (2004)... 10

Cellco P'ship v. FCC, 357 F.3d 88
Is ee a ei nsinbinile ncn ctisaitmnnatsniedeiiabinibeanctionticidai 18, 19, 20

Chesapeake & Potomac Tel. Co. v. United States,
42 F.3d 181 (4th Cir. 1994), vacated, 516 U.S. 415

CD ccinninehceiiniliesineaaiielismnepnennisapicinntues 14
Chicago Cable Communications v. Chicago Cable

Comm 'n, 879 F.2d 1540 (7th Cir. 1989) ..........cceceeeees 10
Cmty. Communications Co., Inc. v. City of Boulder, Colo.,

py Pty || |S A _ : ERC ON rernanr 10
FCC v. League of Women Voters of California,

ee ED cntestetnnenntiatieicrntcinigatanemanescnin 4, 5,14
FCC v. National Citizens Comm. for Broad., 436 U.S. 775

IT shiners cea teitbceaierstaneidinaei alle ced nciatiteaalans passim

Fox Television Stations, Inc. v. FCC, 280 F.3d 1027,
modified on rehearing, 293 F.3d 537
se Mes MIE eciibsicnedtinasathcbiuideinitelabichesilobiesin 8, 14, 19, 20

Free Speech ex rel. Ruggiero v. Reno, 200 F.3d 63
CAE CEe. TIFF) GE CUMERME) ocacesscccscscccncecesesccsscsesssecees 9,10

vi
Graver Tank & Mfg. Co. v. Linde Air Products Co.,

Fe Os Se ee nicki thichtaniiieaicanttn anitepiatinhietiinnsen 24
Grid Radio v. FCC, 278 F.3d 1314 (D.C. Cir. 2002)............. 9
Grosjean v. American Press Co., 297 U.S. 233 (1936) ....... 14
Mark v. FCC, 468 F.2d 266 (1st Cir. 1972) ........ccccceeeeseees 10
McConnell v. Federal Election Comm'n, 540 U.S. 93

SEEITTII scciciesienishsiilapietitaciatenaitinhseasiiuicnastsintGinnenliihiniieasiiulibieicdnaniieicaien 4
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of

SOUR, GE ET BES CN ii aticittt sencitapadinariniinitintinaniine 14
Missouri v. Jenkins, 515 U.S. 70 (1995) .......ccccccsccsseeeesseeees 24
Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033

eS aia PIE ncichtiiccieersnnnsdenhsemnictenntebonssccsdiietibsiaadinudinaleibdas 10
Nat'l Broad. Co., Inc. v. United States, 319 U.S. 190

STII T sccntnainicniisntschctetnniansteeleedaiindanciiaigadiesebiiibdphidaneamabtianiaanantionend 4
Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459

SST hci chet tliilcaileuineiiheelei ch thea cima 15
Prayze FM v. FCC, 214 F.3d 245 (2d Cir. 2000)...............00+. a
Radio-Television News Dir. Ass'n v. FCC, 184 F.3d 872

Seine Seis sit htrensensshiniecitastaianpidlaiataiiapinageishaita timininiiiiie 11
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ...... passim
Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir. 2003)............ 9,15
Scott v. Rosenberg, 702 F.2d 1263 (9th Cir. 1983).............. 10
Sinclair Broadcast Group, Inc. v. FCC, 284 F.3d 148

Siento: MEAs SNE bcceasnkciscninsnnenstenignasliaideimasndanisetiad 8, 19, 20, 24
State Oil v. Khan, $22 U.S. 3 (1997).......ccsccccccssssssssccsessecsesees 4
Syracuse Peace Council v. FCC, 867 F.2d 654

Sirti SanET SEIU UU insacsisuesnmeonnssenecintisndesadeetiniiibainihseildiaiettbibaaitonee 10
Telecomm. Research & Action Ctr. v. FCC, 801 F.2d 501

Es Gee Be eretenssemnssannis Tribune claims that Congress’ requirement that the FCC redistrib-
ute spectrum after the digital television transition is complete demon-
strates that it no longer believes the spectrum is scarce. 04-1036 Pet. 17.
In fact, this leads to the opposite conclusion—if there were not more
would-be users than available frequencies, Congress would have no rea-
son to re-apportion the spectrum.

7

deed, the Balanced Budget Act relied upon spectrum scarcity
in requiring that minimum amounts be raised by each auc-
tion. H.R. Rep. No. 105-149 at 569-72 (setting minimum
amounts “[i]n recognition of the scarcity (and hence, the
value) of spectrum”). Both the use of auctions and the high
prices they generate* demonstrate that there continue to be
far more would-be broadcasters than can be accommodated
by the broadcast spectrum.

In 2000, Congress actually rolled back an FCC attempt to
award additional broadcast licenses through the creation of a
new, noncommercial low power FM radio service. A provi-
sion in the Department of Commerce and Related Agencies
Appropriations Act of 2001 limited the number of low-power
radio applications that the FCC could grant, due to concerns
that allowing more radio stations on the air would interfere
with existing broadcast stations. H.R. 5548 § 632, enacted
by H.R. 4942, Pub. L. No. 106-553, 114 Stat. 2762 (2000).

And finally, in early 2004, Congress passed legislation
rolling back the FCC’s relaxation of the national television
audience limits. Consolidated Appropriations Act of 2004,
Pub. L. No. 108-199, § 629, 118 Stat. 3 (2004). As part of
the 2002 Biennial, the FCC increased the percentage of the
national television audience that one company could “reach”
from 35% to 45%. Congress overruled the FCC’s decision

‘For example, the FCC’s first ever open auction of the FM broadcast
spectrum saw over 450 bidders participate, and resulted in 110 winning
bidders paying nearly $150 million for a portion of the spectrum. News
Release, FCC Announces Close to Unprecedented FM Auction (Nov. 24,
2004). The FCC noted that this auction “signifie[d] the continuing strong
demand for radio broadcast spectrum.” /d. In another example, eleven
bidders vied for a single television station license in Blanco, TX; the win-
ning bid approached $19 million. Public Notice, Blanco, Texas
Broadcast Auction No. 80 Closes (July 18, 2000). One reason for the
high prices generated by spectrum auctions is that “very few ‘new’
broadcast licenses are issued these days,” a fact that is “the consequence
of spectrum scarcity.” Manheim & Solum, supra, at 441.

8

and rolled the cap back to 39%. If Congress did not believe
that the spectrum was “scarce,” it would have no reason to
cap permissible ownership. As the D.C. Circuit explained,
“ijn the face of [the limited capacity of the spectrum], the
national ownership cap increases the number of different
voices heard in the nation .... But for the scarcity rationale,
that increase would be of no moment.” Fox Television Sta-
tions, Inc. v. FCC, 280 F.3d 1027, 1046, modified on reh'g,
293 F.3d 537 (D.C. Cir. 2002).

2. Spectrum Scarcity Continues To Exist As A
Matter Of Fact

Various Petitioners nonetheless argue that this Court
should reconsider NCCB and Red Lion because the factual
predicate of the scarcity doctrine has been eroded by the de-
velopment of cable television, direct broadcast satellites, and
the internet. 04-1020 Pet. 10-11, 04-1036 Pet. 16, 04-1045
Pet. 26. But, as the court of appeals correctly recognized,
“(t]he abundance of non-broadcast media does not render the
broadcast spectrum any less scarce.” Pet. App. 47a. Nor is
there any conflict among the Circuits on this point. The D.C.
Circuit recently rejected the same argument, noting that the
“protest that NCCB [and the scarcity doctrine] is no longer
controlling because it is undermined by the advent of cable
television, DBS, and the internet, is to no avail.” Sinclair
Broad. Group, Inc. v. FCC, 284 F.3d 148, 168-69 (D.C. Cir.
2002) (internal quotations and citations omitted); see also
American Family Ass'n, Inc. v. FCC, 365 F.3d 1156, 1169
(D.C. Cir. 2004) (noting that the number of frequencies that
can be productively used “is far exceeded by the number of
persons wishing to broadcast”).

Further evidence that there continue to be more would-be
broadcasters than frequencies available for licensing is
demonstrated by the large number of unlicensed broadcast
stations that have been shut down by the FCC in recent

——— ae

9

years.’ Likewise, Media General’s contention (04-1020 Pet.
12-13) that the scarcity doctrine has been undermined be-
cause this Court has not extended the doctrine to cable or
internet regulations misses the point. As the Red Lion’s scar-
city doctrine is based on the unique physical characteristics
of the broadcast spectrum, the fact that the doctrine has not
been extended beyond the broadcast arena in no way under-
cuts its viability in the broadcast arena. Spectrum scarcity
exists today in the same form that it did when this Court first
recognized the doctrine more than a half-century ago.° Fur-
ther review of this factual question, which was not addressed
by the FCC or the court of appeals and barely raised in the
huge administrative record, is unwarranted.

3. There Is No Conflict Among The Circuits Re-
garding The Scarcity Doctrine

Contrary to many Petitioners’ contentions, there is no
conflicting authority among the courts of appeals regarding
the scarcity doctrine or the appropriate level of scrutiny for
broadcast regulations. Every Circuit has recognized that
broadcasting regulation is subject to more deferential review

* See, e.g., Ruggiero v. FCC, 317 F.3d 239, 242 (D.C. Cir. 2003);
Grid Radio v. FCC, 278 F.3d 1314, 1316 (D.C. Cir. 2002); Prayze FM v.
FCC, 214 F.3d 245, 250 (2d Cir. 2000); United States v. Any and All Ra-
dio Station Transmission Equip., 218 F.3d 543, 549-50 (6th Cir. 2000);
United States v. Any and All Radio Station Transmission Equip., 207 F.3d
458, 459 (8th Cir. 2000); United States v. Dunifer, 219 F.3d 1004, 1005
(9th Cir. 2000); Free Speech ex rel. Ruggiero v. Reno, 200 F.3d 63, 64
(2d Cir. 1999) (per curiam).

* Media General claims (04-1020 Pet. 22) that because modern tech-
nology has increased the amount of spectrum available for use, scarcity
no longer exists. This is not the case. Red Lion’s observation that
“[a}dvances in technology . . . have led to more efficient utilization of the
frequency spectrum, but uses for the spectrum have also grown apace,”
395 U.S. at 396-97, remains true today with the tremendous growth in
cellular telephone service and other wireless services.

10

under the First Amendment due to the fact that more people
wish to broadcast than the spectrum can accommodate.
Tribune contends (04-1036 Pet. 13) that the Third Cir-
cuit’s suggestion that it would endorse the scarcity doctrine
“Tejven were [it] not constrained by Supreme Court prece-
dent,” Pet. App. 47a, somehow creates a conflict with the
D.C. Circuit. This is not so. While comments critical of the
scarcity doctrine have sometimes appeared in dissenting or
concurring opinions of the D.C. Circuit, see, e.g., Time War-
ner Entertainment Co. v. FCC, 105 F.3d 723, 724 n.2 (D.C.
Cir. 1997) (dissent from denial of rehearing en banc); Action
for Children’s Television v. FCC, 58 F.3d 654, 675 (D.C.
Cir. 1995) (“ACT”) (Edwards, C.J., dissenting); Syracuse
Peace Council v. FCC, 867 F.2d 654, 682-83 (D.C. Cir.
1989) (Starr, J., concurring), such comments are dicta, and
conflicts involving dicta do not merit certiorari. See, e.g.,
Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 1754
(2004). Recognizing that Red Lion continues to “rule the

’ For example, the D.C. Circuit recently reviewed the FCC’s system
for awarding non-commercial educational broadcast licenses and held
that the scheme was subject to deferential review under the First
Amendment. It concluded that “(rjegulation of some form is an irreduci-
ble feature of any broadcast spectrum worth having, since ‘a finite num-
ber of frequencies can be used productively; this number is far exceeded
by the number of persons wishing to broadcast to the public.’”” American
Family Ass’n, 365 F.3d at 1169 (quoting NCCB, 436 U.S. at 798). See
also Mark v. FCC, 468 F.2d 266, 269 (ist Cir. 1972); Free Speech ex rel.

_ Ruggiero v. Reno, 200 F.3d 63, 64 (2d Cir. 1999) (per curiam); Adventure
Communications, Inc. v. Kentucky Registry of Election Fin., 191 F.3d
429, 439-40 (4th Cir 1999); Muir v. Alabama Educ. Television Comm'n,
688 F.2d 1033, 1039, 1043 (Sth Cir. 1982); United States v. Szoka, 260
F.3d 516, 526 (6th Cir. 2001); Chicago Cable Communications v. Chi-
cago Cable Comm'n, 879 F.2d 1540, 1548 (7th Cir. 1989); Black Hills
Video Corp. v. FCC, 399 F.2d 65, 69 (8th Cir. 1968); Scott v. Rosenberg,
702 F.2d 1263, 1272 (9th Cir.1983); Cmty. Communications Co., Inc. v.
City of Boulder, Colo., 660 F.2d 1370, 1376 n.5 (10th Cir. 1981); Jn re
Beach Television Partners, 38 F.3d 535, 536 (11th Cir. 1994).

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11

broadcast jungle,” Tribune Co. v. FCC, 133 F.3d 61, 69
(D.C. Cir. 1988), the D.C. Circuit has consistently and prop-
erly applied the scarcity doctrine. See, e.g., American Family
Ass 'n, 365 F.3d at 1168; Radio-Television News Dir. Ass'n v.
FCC, 184 F.3d 872, 877 n.3 (D.C. Cir. 1999) (“RTNDA”);
Telecomm. Research & Action Ctr. v. FCC, 801 F.2d 501,
509 (D.C. Cir. 1986) (“TRAC”). Thus there is simply no
conflict for this Court to review.

B. Petitioners Have Presented No Compelling Reason
To Revisit NCCB’s Equal Protection Holding

Certain Petitioners also challenge the court of appeals’
decision that rules barring newspapers from owning broad-
cast stations do not impermissibly discriminate in violation
of the First or Fifth Amendment. As with the scarcity doc-
trine, this Court has already addressed this issue. In NCCB,
the Court upheld a ban on newspaper-broadcast cross-
ownership against an equal protection challenge, finding the
regulations to be a “reasonable means” of promoting the
FCC’s objectives. 436 U.S. at 801-02. Indeed, even Media
General acknowledges (04-1020 Pet. 24) that the NCCB
Court rejected the argument that the cross-ownership regula-
tions unfairly single out newspaper owners.

1. Nonetheless, Media General and Tribune argue that
this Court should reconsider NCCB because “in NCCB’s day,
the only other ‘major media of mass communications’ be-
sides newspapers were broadcast television and radio,” while
today other forms of mass media such as cable and internet
are available. 04-1020 Pet. 24; see also 04-1036 Pet. 20.
This misreads NCCB. The cross-ownership rule at issue in
NCCB was not intended to diversify all major media of mass
communication; rather, the FCC sought to regulate media
cross-ownership to promote diversity of viewpoints within
local communities. 436 U.S. at 786 (citing Rules Relating to
Multiple Ownership of Standard, FM, and Television Broad-

12

cast Stations, Second Report & Order, 50 F.C.C.2d 1046,
1075 (1975) (“1975 Order’)). The FCC excluded certain
types of mass media, such as magazines and other periodicals
that “dealt exclusively with regional or national issues and
ignored local issues.” 1975 Order, 50 F.C.C.2d at 1080
4112; see also NCCB, 436 U.S. at 787 n.10. Thus, in 1975,
the FCC recognized that other major mass media existed, but
chose to restrict common ownership of only those media that
covered local issues—specifically newspapers, broadcast
television, and broadcast radio.

Similarly, in the 2002 Biennial, the FCC sought to “pre-
serv[e] viewpoint diversity among local, not national, news
sources.” Pet. App. 484a-485a (2002 Biennial $399). Thus,
the FCC excluded “the large number of national news
sources such as all-news cable channels and the news sources
on the Internet.” Jd. (emphasis added). Finding that “broad-
cast television, daily newspapers, and broadcast radio” con-
tinue to be “the three media platforms that Americans turn to
most often for local news and information,” id. at 520a (2002
Biennial $452), the FCC appropriately limited the cross-
media limits to the media that are the most significant
sources of local news.

Petitioners Newspaper Association of America, Belo
Corp., Gannett Co., Inc., and Morris Communications Com-
pany, LLC (“NAA”) (04-1045 Pet. 27), along with Media
General (04-1020 Pet. 25), also claim that the specific cross-
ownership regulations adopted in the 2002 Biennial violate
_ N€CB’s equal protection holding because they treat newspa-
per owners somewhat differently than radio and television
station owners. Again, these Petitioners misread NCCB.
NCCB merely required the cross-ownership regulations re-
viewed below to treat newspaper and broadcast owners “in
essentially the same fashion.” 436 U.S. at 801 (emphasis
added). As with the rules at issue in NCCB, the cross-
ownership regulations treat newspaper and broadcast owners

— —

13

essentially the same way in that all are restricted in their abil-
ity to own another type of local media. See Pet. App. 452a.
Moreover, contrary to Media General’s absolute statement
that “a cable company may buy a broadcast station even
where a newspaper may not,” 04-1020 Pet. 24, a newspaper
Owner may receive a waiver of the rule to co-own a broadcast
station in certain circumstances. Pet. App. 437a (2002 Bien-
nial 9481).

~ 2. The court of appeals’ decision not to apply height-
ened scrutiny to the cross-ownership regulations does not
conflict with any decision of this Court. The NCCB Court
did not apply heightened scrutiny in its disposal of the equal
protection challenges, but rather found that content-neutral
regulations that prevent any person from owning both a
newspaper and a broadcast station are a “reasonable means
of promoting the public interest in diversified mass commu-
nications.” 436 U.S. at 802 (emphasis added).

Moreover, NCCB’s use of rational basis review is fully
consistent with this Court’s recent jurisprudence. Tribune
and Cross-Petitioner Sinclair Broadcast Group, Inc. (‘Sin-
clair’) rely (04-1036 Pet. 21-22, 04-1177 Pet. 15) on Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)
(“Turner I’) to argue that any regulation that distinguishes
between classes of media outlets demands heightened scru-
tiny. However, this argument is directly precluded by Turner
Ps admonition that “[i]t would be error to conclude . . . that
the First Amendment mandates strict scrutiny for any speech
regulation that applies to one medium (or a subset thereof)
but not others.” 512 U.S. at 660. Turner I’s touchstone for
determining the level of scrutiny is the type of medium;
“heightened scrutiny is unwarranted when the differential
treatment is justified by some special characteristic of the
particular medium being regulated.” Jd. at 660-61 (internal
citations omitted). As the cross-ownership restrictions apply

14

to broadcast media, the “special characteristic” of spectrum
scarcity makes heightened scrutiny unwarranted.

The other cases relied upon by Tribune (04-1036 Pet. 21-
23; see also 04-1177 Cross-Pet. 15) are inapposite to the
question of the proper standard of review of content-neutral
broadcast regulations. League of Women Voters applied
heightened scrutiny because the statute in question was a
content-based speech restriction. 468 U.S. at 383.8 Minnea-
polis Star & Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983), considered the constitutional-
ity of a tax imposed only on newspapers, and is directly
analogous to Grosjean v. American Press Co., 297 U.S. 233
(1936), which the NCCB Court held not to be controlling on
the question of cross-ownership regulations, 436 U.S. at 801.
Finally, the two court of appeals decisions cited by Tribune
(04-1036 Pet. 22-23) concerned regulation of telephone com-
panies, and both cases expressly recognized that broadcast
ownership regulations receive a different and lower level of
constitutional scrutiny.’

® See also Fox Television Stations, 280 F.3d at 1046 (rejecting
heightened scrutiny because the rule at issue, “unlike the [rule] at issue in
League of Women Voters, is not a content-based regulation; it is a regula-
tion of industry structure, like the newspaper/broadcast cross-ownership
rule the Court concluded was content-neutral in NCCB’”).

* Further, both cases were vacated by this Court. US West, Inc. v.
United States, 48 F.3d 1092, 1098 (9th Cir. 1994), vacated, 516 U.S.
1155 (1996); Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d
181, 191 (4th Cir. 1994), vacated, 516 U.S. 415 (1996) (per curiam).

15

C. The Court Below Did Not Address Whether
Cross-Ownership Regulations Are Content-Based;
Nor Have Petitioners Presented Compelling Rea-
son To Revisit NCCB’s Holding That Such Regula-
tions Are Content-Neutral

Media General’s and Tribune’s contention (04-1020 Pet.
26; 04-1036 Pet. 23) that the cross-ownership regulations
should have been subjected to heightened scrutiny because
they are content-based restrictions on speech likewise pro-
vides no basis for reconsidering NCCB. As a threshold mat-
ter, review of this argument is inappropriate because it was
not addressed in the decision below. This Court “dofes] not
decide in the first instance issues not decided below.” Nat’l
Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 470 (1999).

Certiorari is also unnecessary because this Court has al-
ready addressed the question, specifically holding that news-
paper-broadcast cross-ownership regulations “are not content
related.” NCCB, 436 U.S. at 801. Lower courts have prop-
erly followed that decision, recognizing that cross-ownership
rules are simply structural regulations that receive minimal
constitutional scrutiny. See, e.g., American Family Ass'n,
365 F.3d at 1169; Ruggiero, 317 F.3d at 244.

In any event, the court of appeals’ decision that the struc-
tural cross-ownership regulations are not content-based is
correct. As this Court has explained, “[tJhe principal inquiry
in determining content neutrality . . . is whether the govern-
ment has adopted a regulation of speech because of dis-
agreement with the message it conveys.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). The cross-
ownership regulations were not at all motivated by the mes-
sage of the speaker, but rather were developed to ensure a
diversity of media voices was available to the public. Pet.
App. 481a-482a (2002 Biennial 4393-94). “[B]y placing a
value upon diversity the FCC did not necessarily . . . value
one speaker, or one type of speech over another; it merely

16

expressed its intention that there continue to be multiple
speakers.” American Family Ass'n, 365 F.3d at 1169 (inter-
nal quotations omitted).

The D.C. Circuit has held that analogous regulations of
the structure of cable ownership that were motivated by di-
versity concerns were not content-based. In Jime Warner
Entertainment Co. v. United States, the court noted that “[a]s
the Supreme Court made quite clear in Turner IJ, . . . making
way for some speakers” in a context like broadcasting
“where that necessarily means limiting the speech of others,
is not inherently content-based.” 211 F.3d 1313, 1317 (D.C.
Cir. 2000). This same, traditional rationale clearly applies to
the present regulations—trules restricting broadcast owner-
ship to promote a diversity of media outlets are not subject to
heightened First Amendment scrutiny.

D. Should The Court Wish To Reconsider Its Consti-
tutional Precedent, Other Cases Offer A Better
Opportunity For Fully Assessing The Issues

The 2002 Biennial focused on specific ownership rules
and not the factual underpinnings of the scarcity doctrine.
Any reference to the continued existence of spectrum scarcity
was an inconsequential piece of a massive record, and the
factual basis for doctrine was not addressed on the merits by
the FCC or the court of appeals. Re-examination of the scar-
city doctrine would be a fact-intensive process. The present
case plainly does not afford this Court a sufficient record or
factual basis for such a task.

Moreover, as a practical matter, this case does not present
an actual cross-ownership rule for constitutional review. Be-
cause the court below agreed with the FCC that the original
newspaper-broadcast cross-ownership rule was no longer
necessary, see Pet. App. 40a, there is no need to re-evaluate
the constitutionality of that rule. On the other hand, since the
court found that the replacement rule adopted by the FCC

17

was arbitrary and capricious and subject to further proceed-
ings on remand, it would make no sense to evaluate the con-
stitutionality of that rule at this time.

Further, the FCC has before it at least three licensing
cases that squarely present the issue of whether the cross-
ownership prohibition is constitutional. Specifically, Media
General has filed license renewal applications asking the
FCC to waive the newspaper-broadcast cross-ownership rule
to allow it to continue to own both a daily newspaper and a
television station in the Myrtle Beach-Florence, South Caro-
lina, Panama City, Florida, and Columbus, Georgia DMAs,’°
In making its waiver requests, Media General argues that
spectrum scarcity no longer exists and thus the cross-
ownership rules are unconstitutional. See, e.g. Application
for Renewal of Broadcast Station License for WBTW, Media
General Opposition to Petition to Deny 39-44 (Dec. 14,
2004). Because these cases present the issue in specific, con-
crete factual settings, yet do not raise the wide variety of is-
sues presented in the 2002 Biennial, any one would present a
better vehicle for revisiting the constitutional issues raised by
Petitioners in this case, should this Court be inclined to do so.

II. THERE IS NO CONFLICT OVER THE INTER-
PRETATION OF §202(h) OF THE 1996 TELE-
COMMUNICATIONS ACT

Petitioner National Association of Broadcasters (“NAB”),
along with Tribune, NAA, and Respondent Clear Channel
Communications, Inc. (“Clear Channel”)'! assert there is a

'° Application for Renewal of Broadcast Station License for WBTW,
FCC File No. BRCT-20040802BIK (Aug. 6, 2004), Application for Re-
newal of Broadcast Station License for WMBB, FCC File No. BRCT-
20041001 AQF (Oct. 7, 2004), Application for Renewal of Broadcast Sta-
tion License for WRBL, FCC File No. BRCT-20041210BZP (Dec. 8,
2004).

' Clear Channel is a Respondent in 04-1033.

18

circuit split with respect to the FCC’s construction of §202(h)
of the 1996 Act. This is not so. All three members of the
panel agreed that the court of appeals’ construction is consis-
tent with that of the D.C. Circuit. Their ruling that the peri-
odic review mandated by §202(h) should employ the normal
arbitrary and capricious test generally required by the Ad-
ministrative Procedure Act is clearly correct and should not
be disturbed. Nor is there reason for this Court to examine
the court of appeals’ unanimous conclusion that §202(h) al-
lows the FCC to adopt stronger rules at the conclusion of the
review process.

Although each of the petitioners emphasize the deregula-
tory thrust of the 1996 Act, there is no suggestion that the
ruling below conflicts with any other circuit on this point.
See Pet. App. 34a (majority noting that 1996 Act is deregula-
tory); Pet. App 122a (concurring judge noting the “deregula-
tory flavor” of the 1996 Act). Nor do any of the Petitioners
point to express language in any statute that prohibits the
FCC from increasing its regulatory oversight when the record
justifies such action. Under this Court’s jurisprudence, the
FCC is entitled to deference in construction of statutory am-
biguities such as this, see, e.g., United States v. Mead Corp.,
533 U.S. 218, 229 (2001), and the petitions surely do not
raise an issue here that would support issuance of a writ of
certiorari.

1. Tribune, NAA, Sinclair, and Clear Channel argue that
the Third Circuit’s holding that §202(h) does not impose a
more exacting standard of review is in conflict with that of
the D.C. Circuit. See 04-1036 Pet. 24-26; 04-1045 Pet. 19-
23; 04-1177 Cross-Pet. 11-12; Clear Channel Br. 24-27.
These arguments mischaracterize the sequence in which the
FCC and the D.C. Circuit acted and downplay the D.C. Cir-
cuit’s definitive decision in Cellco Partnership v. FCC, 357
F.3d 88 (D.C. Cir. 2004). As the Third Circuit joined Cellco

ee ee

19

in holding that the phrase “necessary in the public interest” !
did not create a deregulatory presumption, and “endorsing
the [FCC]’s view that ‘necessary’ must mean the same thing
in the periodic review context as in the rulemaking context,”
Pet. App. 31a, there is no conflict.'?

Clear Channel’s quotations of fragments from Cellco are
misleadingly incomplete, as can be seen by reference to the
complete passages from which Clear Channel quotes. For
example, Clear Channel claims that Cellco, “expressly ex-
tended to Section 11 the ‘presumption in favor of repealing
or modifying covered rules’ that the D.C. Circuit had found
inherent in Section 202(h).” Clear Channel Br. at 26 (quoting
Cellco, 357 F.3d at 97). What Cellco actually said was that
“the [FCC] agreed that where §11's conditions are met, §11
creates a presumption in favor of repealing or modifying” the

"2 The provision directly at issue in Cellco was §11 of the 1996 Act,
a biennial review provision that, just like §202(h), requires the FCC to
repeal or modify regulations no longer “necessary in the public interest.”

" Petitioners rely on the D.C. Circuit’s pre-Cellco decisions in Fox
Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) (“Fox
I”), and Sinclair v. FCC, 284 F.3d 148 (D.C. Cir. 2002) (“Sinclair’).
However, the D.C. Circuit later modified the Fox J decision to “leave
unresolved precisely what §202(h) means.” Fox Television Stations, Inc.
v. FCC, 293 F.3d 537, 540 (D.C. Cir. 2002) (“Fox IP’). Moreover, Cellco
explicitly discussed and harmonized its ruling with those in Fox J, Fox II
and Sinclair. 357 F.3d at 97-98. The Cellco panel pointed out that
“shortly after Sinclair was decided, the court in [Fox IT] retracted Fox I's
definition of ‘necessary”” and that “the court in Sinclair did not adopt a
general presumption in favor of modification or elimination of regula-
tions.” 357 F.3d at 98. Thus, for example, when NAB refers (04-1033
Pet. 22, see also 04-1036 Pet. 24, 04-1045 Pet. 19) to Fox J and Sinclair
as imposing “a presumption in favor of repealing or modifying the own-
ership rules,” it ignores the subsequent Cellco, ruling, which specifically
stated that “neither Fox J nor Sinclair adopted a controlling definition of
‘necessary,’ much less the position that §11 embodies a presumption in
favor of deregulation.” 357 F.3d at 98. Importantly, the 2002 Biennial,
which purports to rely on Fox J and Sinclair, Pet. App. 215a (2002 Bien-
nial 411), was issued prior to the Cellco decision.

20

tules. 357 F.3d at 97 (emphasis added). Indeed, there is no
dispute within or among the circuits that when a regulation is
found no longer to be in the public interest that there is a pre-
sumption in favor of repeal or modification. See id. at 99.
Similarly, although Clear Channel claims that Cellco im-
poses obligations that go “beyond [the FCC’s] normal moni-
toring responsibilities,” Clear Channel Br. at 26 (quoting
Cellco, 357 F.3d at 99), the decision’s preceding sentence
makes clear that the Cellco court.was referring to remedies,
not the threshold test. 357 F.3d at 99 (“The [FCC] reasona-
bly concluded that the deregulatory presumption arises only
after it has determined under §11(a) that a regulation is no
longer necessary in the public interest.”).

2. NAB, supported by Clear Channel, presents a second
statutory argument, claiming that the deregulatory goals of
the 1996 Act permit the FCC only to deregulate and pre-
cludes it from ever tightening its radio ownership regulations
at the conclusion of a biennial review. 04-1033 Pet. 19-26;
Clear Channel Br. 20-24. There is no suggestion of a circuit
conflict on this point, and no specific statutory provision
governs this question. This, then, is also an issue as to which
the FCC is entitled to substantial deference. See, e.g.,. Mead,
533 U.S. at 229.

NAB argues (04-1033 Pet. 22) that “Sections 202(b) and
202(h) together express a clear directive that local ownership
restrictions not be tightened,” but none of the language it
cites from the statute or the D.C. Circuit’s Fox and Sinclair
decisions addresses the particular issue presented here. To
say that “Congress set in motion a process to deregulate the
structure of the broadcast and cable industries,” 04-1033 Pet.
22 (quoting Fox J, 280 F.3d at 1033), is not inconsistent with
an agency determination that the deregulatory process can be
accomplished with one step backward and three steps for-
ward.

21

Both NAB and Clear Channel likewise maintain that the
phrase “repeal or modify” must be read so that “modify”
means only “that the [FCC] can relax existing restrictions; it
does not authorize the [FCC] to tighten them.” 04-1033 Pet.
23; see also Clear Channel Br. 20, and that the court of ap-
peals ruling “conflicts with the text and structure of Section
202 as a whole.” Clear Channel Br. 21. There is no basis to
disturb the court of appeals’ holding on this point. As the
panel majority reasonably explained, the deregulatory goal of
§202(h) is fulfilled by “requir[ing] the [FCC] periodically to
justify its existing regulations, an obligation it would not oth-
erwise have.” Pet. App. 34a. See also id. at 124a (“Despite
§202(h)’s admittedly deregulatory tenor, the statute does not
foreclose the possibility of increased regulation under the bi-
ennial review if the [FCC] finds such action in the public in-
terest.”) (Scirica, C.J., concurring in part and dissenting in
part). There is nothing important or novel about this garden
variety question of statutory construction, or the resolution of
it below, much less anything which would rise to the level of
significance to merit this Court’s attention.

Ill. ROUTINE APPLICATION OF WELL-SETTLED
ADMINISTRATIVE LAW STANDARDS DOES
NOT MERIT THIS COURT’S INTERVENTION

1. Both NAA and the Government’s Conditional Cross-
Petition contend (04-1045 Pet. 23-25; 04-1168 Cross-Pet. 21-
28) that the court of appeals did not afford sufficient defer-
ence to the FCC’s decisionmaking.'* Yet neither claims that

“* The deference claim is not raised by other industry Petitioners.
Like Public Interest Respondents, many industry Petitioners argued to the
court below that certain FCC decisions were arbitrary and Capricious. See
Pet. App. 52a (industry petitioners argued exclusion of cable but inclu-
sion of internet in diversity index arbitrary and capricious); 58a (industry
petitioners argued “equal market shares” assumption arbitrary and capri-
cious); 103a (industry petitioners argued specific local radio limits arbi-
trary and capricious).

22

the court failed to articulate the correct deference standards.
See 04-1045 Pet. 24; 04-1168 Cross-Pet. 23,27. Indeed, the
court below correctly noted that its scope of review was nar-
row, Pet. App. 25a, that it was not to substitute its judgment
for that of the agency, id., and that “[djeference to the
[FCC]’s judgment is highest when assessing the rationality of
the agency’s line-drawing endeavors,” id. at 62a. The court
remanded only when the agency’s decision was “not sup-
ported by substantial evidence.” Jd. at 25a. Importantly,
there was no disagreement between the majority and Chief
Judge Scirica about the proper legal standards, compare id. at
24a-26a, with id. at 116a-118a; the only disagreement was
over the application of those standards to specific rules at is-
sue. At bottom, NAA and the Government simply quarrel
over this application of law to fact. That issue does not merit
review. Sup. Ct. R. 10.

2. Notwithstanding the fact that this issue does not war-
rant intervention by this Court, the court of appeals’ decision
to remand certain rules was correct. The Government claims
(04-1168 Cross-Pet. 21) that the court of appeals should have
deferred to the FCC’s decision to assume equal market shares
for outlets within the same media. The flaw in this argument,
as the court observed, is that this equal market share assump-
tion conflicted with other parts of the 2002 Biennial, where
the FCC expressly found that there was “no reason to believe
that all media are of equal importance.” Pet. App. 59a (quot-
ing 2002 Biennial 4409). The court correctly pointed out
that “the assignment of equal market shares generates absurd
results,” such as the Dutchess Community College television
station receiving a market share equal to New York City’s
ABC affiliate and higher than the New York Times. Pet.
App. 59a. In sum, the court found that “assuming equal
market shares [is] unrealistic and inconsistent with the
[FCC]’s overall approach .. . and proffered rationale,” and
thus it properly remanded that decision. Jd. at 61a.

23

The Government also questions (04-1168 Cross-Pet. 24)
the deference given to the FCC’s decision to give substantial
weight to the internet in the FCC’s Diversity Index. Once
again, however, the court appropriately remanded in light of
the FCC’s failure to explain obvious inconsistencies. The
court correctly noted that the FCC’s rationale for excluding
cable television from the Diversity Index also necessarily ap-
plied to the internet. See Pet. App. 52a-58a. For example,
while the FCC discounted cable where a survey suggesting
that cable was a source of local news conflicted with other
record evidence, the FCC failed to discount the internet under
analogous circumstances. Jd. at 55a.'* Because the similari-
ties between cable television and the internet required consis-
tent treatment, the court properly found that the “decision to
count the Internet as a source of viewpoint diversity, while
discounting cable, was irrational.” Jd. at 52a.

Finally, the Government challenges (04-1168 Cross-Pet.
27-28) the court of appeals’ review of specific limits chosen
regarding cross-media and local radio station ownership. But
in fact the court upheld many of the FCC’s line-drawing de-
cisions, see id. at 75a (upholding “top-four restriction” on
local TV ownership), 85a (upholding local radio market defi-
nition), only remanding those that were marred by inconsis-
tencies. For example, the specific limits created by the FCC,
purportedly developed to prevent “problematic levels of con-
centration,” id. at 509a (2002 Biennial 9435), would have
allowed certain media combinations resulting in considerably
higher concentration levels than others that were prohibited.
The court correctly held that “[t]he [FCC]’s failure to provide
any explanation for this glaring inconsistency is without a

'S Further, the court noted that the FCC’s attempt to justify the dif-
ferential treatment by arguing that local cable news is not available to
everyone while the internet is was inconsistent with the FCC’s recogni-
tion (elsewhere in the 2002 Biennial) that nearly one-third of Americans
have no internet access. Pet. App. at 57a-58a.

24

doubt arbitrary and capricious.” Jd. at 63a. Thus, while the
court properly engaged in highly deferential review of spe-
cific limits chosen by the FCC, it did not abdicate its respon-
sibility to remand when the lines drawn were not supported
by the record and therefore “patently unreasonable.” Sin-
clair, 284 F.3d at 162."

It is a truism that this Court is “‘[a] court of law . . . rather
than a court for correction of errors in fact finding.’” Mis-
souri v. Jenkins, 515 U.S. 70, 162 (1995) (Souter, J., dissent-
ing) (quoting Graver Tank & Mfg. Co. v. Linde Air Prod.
Co., 336 U.S. 271, 275 (1949)). As the decision below rests
upon a correct understanding of this Court’s principles of
administrative deference, Petitioners’ contention is simply
that the court of appeals misapplied the law to the facts of
this case. As explained above, that case-specific issue does
not merit this Court’s attention.

'® The Government also challenges (04-1168 Pet. 27-28) the remand
of the FCC’s specific local radio ownership limits. Once again, the court
of appeals remanded these limits because of the irrational and incunsis-
tent manner in which they were developed. For example, the court
pointed out that the FCC failed to explain why it ignored the DOJ/FTC
Merger Guidelines in developing the local radio limits, but expressly re-
lied on the Guidelines in developing analogous local television ownership
limits. Pet. App 103a. Further, while the rationale for the local radio
ownership limits depended heavily on the theory that a certain number of
equal-sized competitors would make a market competitive, the court cor-
rectly noted that “record evidence supports neither actual nor potential
existence of equal-sized competitors” in the local radio market. Jd.

25

CONCLUSION

For the foregoing reasons, this Court should deny the
petitions for a writ of certiorari.

Respectfully submitted,
ANGELA J. CAMPBELL ANDREW JAY SCHWARTZMAN*
KAREN HENEIN MEDIA ACCESS PROJECT
INSTITUTE FOR PUBLIC Suite 1000
REPRESENTATION 1625 K Street, NW
GEORGETOWN Washington, DC 20006

UNIVERSITY LAW CENTER (202) 232-4300
600 New Jersey Ave., NW

Suite 312 GLENN B. MANISHIN
Washington, DC 20001 KELLEY DRYE & WARREN,
(202) 662-9535 LLP
8000 Towers Crescent Drive,

DAVID HONIG Suite 1200
NICOLAINE LAZARRE Vienna, VA 22812
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TELECOMMUNICATIONS

COUNCIL SHELBY D. GREEN

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May 2, 2005 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1353%3A4. Public record. Not legal advice.