# Reply Brief — Jaramillo v. Federal Communications Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0808%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1274

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0808%3A3. Public record. Not legal advice.