Reply Brief — Jaramillo v. Federal Communications Commission

Supreme Court, U.S.

(B) FILED

No. 99-1580 JUN 15 2000

IN THE CLE RK

Supreme Court of the United Statesr—

LETICIA JARAMILLO and JOSEPH REY,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF

Bruce A. EISEN

Counsel of Record

DAVID O. BICKART

DEAN C. GARFIELD

KAYE, SCHOLER, FIERMAN,

Hays & HANDLER, LLP

Attorneys for Petitioners

901 15th Street, N.W.

Washington, DC 20005

(202) 682-3538

160393 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

4p?

]

Contrary to the assertions advanced in Respondent’s

Brief in Opposition, the viewing interests recognized as

sufficient to establish standing in United Church of Christ

v. FCC, 359 F.2d 994 (D.C. Cir. 1966) (Opp. 4-5) (Pet. 4-5)

are not limited to interests in a particular sort of

programming. In providing an opportunity for judicial review

on behalf of any “aggrieved” person, Congress has signaled

its intent to “cast the standing net broadly,” Federal Election

Commission v. Akins, 524 U.S. 11, 19 (1998). Nothing in

United Church of Christ limits viewer Standing to those who

object to “program impairing circumstances.” On the

contrary, the court declined to “enumerate[] or characterize[]

specifically” what viewer interests should be credited. 359

F.2d at 1005. Rather than impose a judicial straightjacket

on public participation rights, United Church of Christ and

subsequent cases recognized that the FCC was best equipped

to evaluate the circumstances under which the viewing

audience may be injured or put at risk by licensee

misconduct.

As this Court reiterated in Friends of the Earth vy.

Laidlaw Environmental Services, 120 S. Ct. 693, 697 (2000),

“reasonable concerns” about the likelihood that licensee

misconduct will harm individual interests are sufficient

“injury” to satisfy Article III. Thus, in Llerandi v. FCC, 863

F.2d 79, 85 (D.C. Cir. 1988) viewers were entitled to

challenge a licerise because of concern that the license award

would reduce competition. There was no “program

impairing” conduct in Llerandi but only the FCC’s judgment,

articulated in its “duopoly” rule, that broadcaster

concentration was likely to reduce viewer choice in some

indeterminate fashion. The injury against which petitioners

have sought protection in this case is similarly grounded in

a longstanding FCC judgment that past conduct is a reliahle

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indicator of “future broadcast performance.” Character

Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179,

1227 (1986). In establishing its policy concerning licensee

“character,” the Commission has reasonably concluded that

those who have lied to the Commission are not likely to be

“reliable operators of their stations.” 102 FCC 2d at 1228.

Petitioners, as members of the WKCF-TV viewing area, are

entitled to receive television service from a reliable station

operator. Their injury is not “subjective” or hypothetical; it

reflects the FCC’s own expert judgment about the link

between past licensee conduct and future service That there

is a potential risk of receiving service from an unreliable

licensee is sufficient injury for standing purposes. See Duke

Power v. Environment Study Group, 438 U.S. 59 (risk of

increased radiation from power plants is sufficient injury);

see also Friends of the Earth v. Laidlaw (future risk from

“excess” effluents is injury, even if they have not been shown

to have actually degraded receiving waters).

Finally, that the D.C. Circuit has departed from its

precedents on a question of national importance should not

insulate its decision from this Court’s review. Within the

last few weeks this Court has granted at least two petitions

for certiorari to review the D.C. Circuit’s construction of

the Clean Air Act, another law of nationwide application

that vests exclusive appellate jurisdiction initially in that

Circuit. See American Trucking Assns v. Browner, No. 99-

1426 (cert. granted, May 30, 2000) and Browner v. American

Trucking Assns, No. 99-1257 (cert. granted, May 22, 2000).

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Bruce A. EISEN

Counsel of Record

Davip O. BiCKART

DEaN C. GARFIELD

KAYE, SCHOLER, FIERMAN,

Hays & HANDLER, LLP

Attorneys for Petitioners

901 15th Street, N.W.

Washington, DC 20005

(202) 682-3538