Supreme Court of the United States

No. 13-1124

IN THE Supreme Court of the United States

MINORITY TELEVISION PROJECT, INC.,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR MIND: MEDIA INDEPENDENCE; GAMECOCK ALUMNI BROADCASTERS, LTD.; MHZ NETWORKS; AND PUBLIC BROADCAST MARKETING, INC. AS AMICI CURIAE IN SUPPORT OF PETITIONER

MICHAEL H. PARK Counsel of Record VERNON L. FRANCIS IRENE AYZENBERG-LYMAN JOCELYN HANAMIRIAN DECHERT LLP 1095 Avenue of the Americas New York, NY 10036 (212) 698-3530 [email protected]

Counsel for Amici Curiae April 18, 2014 i

TABLE OF CONTENTS Page TABLE OF CONTENTS...... i

TABLE OF CITED AUTHORITIES ...... iii

INTEREST OF AMICI CURIAE ...... 1

SUMMARY OF ARGUMENT ...... 3

ARGUMENT...... 6

A CONSTITUTIONALLY INFIRM PROHIBITION ON PAID CONTENT SHOULD NOT DENY PUBLIC MEDIA ACCESS TO VITAL FINANCIAL RESOURCES ...... 6

A. Section 399b Creates Unnecessary Financial Challenges for Public Broadcasters, Especially for Smaller Providers...... 7

B. Section 399b Is Not Supported by the Legislative Record and Is Undermined by Practical Realities that Public Broadcasters Face Today...... 9

1. S e c t ion 3 9 9 b’s C ont e nt - Ba s e d Restrictions on Speech Are Not Supported by Legislative History...... 9

2. Section 399b’s Speech Restrictions Are Not Justiﬁ ed in Light of the Regulatory and Technological Environment in Which Broadcasters Operate Today...... 15 ii

Table of Contents Page C. Section 399b Is Not Necessary To Ensure that Public Broadcasters Adhere to Their Mission ...... 18

CONCLUSION ...... 21 iii

TABLE OF CITED AUTHORITIES Page Cases

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) ...... 9

Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) ...... 10

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)...... 15

FCC v. League of Women Voters, 468 U.S. 364 (1984)...... 10

Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)...... 10

McCutcheon v. Fed. Election Comm’n, 2014 WL 1301866 (U.S. Apr. 2, 2014)...... 10

Minority Television Project, Inc. v. FCC, 736 F.3d 1192 (9th Cir. 2013)...... 11

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)...... 9

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ...... 9 iv

Cited Authorities Page Statutes and Other Authorities

First Amendment to the U.S. Constitution . . . .4, 9, 15, 21

47 U.S.C. § 396(k)(8) ...... 20

47 U.S.C. § 399b...... passim

47 U.S.C. § 503(b)(2) ...... 18

H.R. Rep. No. 97-82 (1981) ...... 7, 14

Sup. Ct. R. 37.2(a) ...... 1

Sup. Ct. R. 37.6 ...... 1

127 Cong. Rec. 13141...... 11

127 Cong. Rec. 13145...... 14

Andrew D. Cotlar, You Said What? The Perils of Content-Based Regulation of Public Broadcast Underwriting Acknowledgements, 59 FED. COMMN’S L.J. 47 (2006)...... 17

Commission Policy Concerning the Noncommercial Educational Nature of Educational Broadcasting Stations, 97 F.C.C. 2d 255 (1984) ...... 16

COMMUNITY ADVISORY BOARD REQUIREMENTS, CPB, available at http://www.cpb. org/stations/certiﬁ cation/cert3.html ...... 20 v

Cited Authorities Page

CPB, ALTERNATIVE SOURCES OF FUNDING FOR PUBLIC BROADCASTING STATIONS 20 (June 20, 2012) ...... 7

Dan Odenwald, Hot Over Heartburn Credit, CURRENT, April 7, 2003, available at http:// www.current.org/wp-content/themes/ current/archive-site/cm/cm0307credits.html ...... 17

Editorial Guidelines, MI ND: MEDIA INDEPENDENCE, available at http://www. mindtv.org/?s=community+standards#cs (last visited Apr. 16, 2014) ...... 19

Glenn J. McLoughlin & Mark Gurevitz, Cong. Research Serv., RS22168, THE CORPORATION FOR PUBLIC BROADCASTING: FEDERAL FUNDING & ISSUES 1 (2014) ...... 8

In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 28 F.C.C.R. 10,496, ¶ 191 (2013) ...... 15

In the Matter of Public Notice the Future of Media & Information Needs of Communities in a Digital Age, F.C.C. No. 10-25 (May 7, 2010), available at http://cpb.org/ future/TheFutureofPublicMedia.pdf ...... 7 vi

Cited Authorities Page Michael Getler, More Pledge Madness, PBS. COM, March 20, 2009, available at http:// www.pbs.org/ombudsman/2009/03/ more_pledge_madness.html...... 18

Podcast Directory, NPR, available at http://www.npr.org/rss/podcast/ podcast_directory.php?type=title&id=-1 (last visited Apr. 12, 2014) ...... 15

Public Broadcasting Amendments Act of 1981: Hearing on H.R. 3238 and H.R. 2774 Before the H. Subcomm. on Telecommunications, Consumer Protection, and Finance, 97th Cong. 31 (1981) . . .8, 16

Public Media Code of Integrity, MI ND: MEDIA INDEPENDENCE, available at http:// www.mindtv.org/public-media-code- integrity/ (last visited Apr. 16, 2014) ...... 19

Temporary Commission on Alternative Financing for Public Telecommunications, Temporary Commission Report on Alternative Financing for Public Telecommunications 12 (1983) . . 11, 12, 13, 20

U.S. Gov’t Accountability Ofﬁ ce, GAO-11-660R, PUBLIC RADIO AND THE ROLE OF FEDERAL FUNDING 17 (2011) ...... 8 1

INTEREST OF AMICI CURIAE1

Pursuant to Supreme Court Rule 37.2(a), MiND: Media Independence (“MiND TV”), Gamecock Alumni Broadcasters, Ltd. d/b/a WXRY FM (“WXRY”),2 MHz Networks (“MHz”), and Public Broadcast Marketing, Inc. respectfully submit this amicus brief in support of Petitioner.

MiND TV broadcasts programs that focus on social issues, global citizenship, community building, and other important civic topics. It is one of the nation’s smallest noncommercial educational broadcast public television stations by budget, but it serves nearly 10 million people in Pennsylvania, New Jersey, and Delaware. Each year, MiND TV airs hundreds of original ﬁ ve-minute programs produced with its local partners, including individuals in the community who receive training from MiND TV on how to use video as a medium to tell stories. MiND TV is a service of Independence Public Media of Philadelphia, Inc., a 501(c)(3) nonproﬁ t organization governed by a local Board of Directors.

1. Both parties received timely notice of amici’s intent to fi le this brief and have consented to its fi ling in letters that will be fi led with the Clerk of the Court along with this brief. No counsel for a party has authored this brief in whole or in part, and no person other than amici and their counsel has made a monetary contribution to the preparation or submission of this brief. See Sup. Ct. R. 37.2(a), 37.6. 2. In South Carolina, WXRY is qualifi ed as the Independent Media Foundation, Ltd. 2

MiND TV joins this brief because it seeks to diversify and increase its sources of funding in order to continue to fulﬁ ll its mission as a provider of highly original and community-focused television programs.

WXRY is an independent, alternative music radio station serving the Columbia, South Carolina area. WXRY was founded to ﬁ ll a community need for independent music programming for college-educated adults between the ages of 25 to 40. Its programming specifically focuses on communities within 15 miles of downtown Columbia. The station is operated by a small staff of local professionals and volunteers. WXRY is not owned by or afﬁ liated with any university, foundation, or government- chartered agency, and it does not receive funding from the Corporation for Public Broadcasting (“CPB”). Instead, underwriting accounts for 80% to 90% of WXRY’s budget.

WXRY joins this brief because it seeks to diversify and increase its sources of funding in order to continue to fulﬁ ll its mission of providing high quality, independent music programming.

MHz is a non-profit, independent broadcaster that provides top-quality international television programming to American audiences. It does not receive government funding, but is funded by donors, sponsors, and underwriters. Its international programming includes news, drama, ﬁ lm, mysteries, documentaries, and cultural and special events. MHz provides the largest aggregation of international news on one channel in the United States and is available in over 38 million households through afﬁ liates via broadcast, cable, and satellite. 3

MHz joins this brief because it also seeks to diversify and increase its sources of funding in order to continue to fulﬁ ll its mission of providing premiere English-language international content to U.S. viewers.

Public Broadcast Marketing, Inc. is a media buying service for corporations wishing to include public television in their marketing activities. Public Broadcast Marketing, Inc. provides media planning and campaign design services to its clients and reviews spot content for compliance with FCC and station policies.

Public Broadcast Marketing, Inc. joins this brief because it believes that the right to free speech is of paramount importance and that the current ban on advertising on public broadcast media unduly restricts free speech.

SUMMARY OF ARGUMENT

Section 399b of title 47 of the U.S. Code is a constitutionally infi rm statute that bans public broadcasters from engaging in certain forms of speech, including core political speech, based on content. Specifically, § 399b prohibits paid “message[s] or other programming material” that “promote any service, facility, or product offered by any person who is engaged in such offering for profi t,” although it permits the very same messaging when paid for by non-profi t companies. Id. Importantly, § 399b also prohibits core political speech—messages that “express the views of any person with respect to any matter of public importance or interest” or that “support or oppose any candidate for political offi ce”—if the broadcaster accepts remuneration in return. Id. 4

Petitioner Minority Television Project, Inc. (“Minority TV”) has asked this Court to review § 399b to determine whether its ban on advertisements is consistent with the First Amendment. This Court should grant certiorari because the Ninth Circuit decision below upheld a prohibition on commercial advertising that denies the public broadcasting community access to financial resources that could be crucial to its future economic survival and development.

First, in a difﬁ cult economic environment, § 399b creates additional financial challenges for public broadcasters. Section 399b was enacted in 1981 during a time of severe economic austerity and when federal funding for public broadcasting would face substantial cuts. Congress’s stated mission, therefore, was to determine the minimum amount by which traditional speech restrictions on broadcasters could be relaxed in order for public broadcasting to ﬂ ourish, given the reduction in federal funds.

Since 1981, the economic environment has in fact become even more difﬁ cult for smaller, newer stations that do not receive federal aid. These public broadcast stations also provide an extraordinary diversity of content that usually reﬂ ects the interests of local communities. The removal of § 399b’s prohibitions would give these stations access to critical funding that could diversify and augment their underwriting and volunteer fundraising efforts.

Second, these environmental factors make the Court’s consideration of § 399b’s validity crucial. Section 399b prohibits speech—including core political speech—based on content. This Court has subjected content-based 5 restrictions on speech to the most exacting scrutiny. In the broadcasting context, current law relaxes this standard but still requires that any regulation that burdens protected speech be tailored narrowly to further a substantial government interest.

Section 399b fails this standard because it is not “narrowly tailored.” The purported need for § 399b’s restrictions is not supported by the legislative record, which was based on speculation. Moreover, restrictions on political and message advertising have no basis in the statute’s legislative history at all.

Third, § 399b is undermined further by the practical realities in which public broadcasters operate today. As a technological matter, spectrum scarcity is no longer an issue due to the proliferation of communication channels that do not use spectrum and the increase in channels resulting from digital television technology, which allows several standard definition channels to be digitally broadcast in the broadcast bandwidth previously required for just one analog television channel. Moreover, the government allows some forms of commercial promotion by sponsors on public television and public radio already, such as enhanced underwriting, and such activities have had no noticeable effect on public broadcasters’ continuing loyalty to their educational and public service mission, demonstrating that the advertising ban is an unnecessary restriction of speech, and that the industry is able to develop and implement reasonable rules and restraints.

Ultimately, the passage of § 399b was premised on the fear that public broadcasters would stray from their missions absent the advertising ban. Amici believe that 6 these fears can be addressed effectively by measures other than an outright ban on advertisements. Indeed, several alternatives short of a content-based ban on speech were available to Congress in 1981—and are available today— to ensure that public broadcasters continue to provide quality, noncommercial programming satisfactory to the public interest and to the needs of parents seeking noncommercial programming on television suitable for their children. Because Congress failed to tailor § 399b’s restrictions on speech narrowly to further the governmental interest at stake, the statute is not only unconstitutional, but also undermines the very interest that it was enacted to serve by limiting broadcasters’ access to much needed ﬁ nancial resources. This Court should accept the invitation to overturn this antiquated and unjustiﬁ ed prohibition on the airing of constitutionally- protected speech.

ARGUMENT

A CONSTITUTIONALLY INFIRM PROHIBITION ON PAID CONTENT SHOULD NOT DENY PUBLIC MEDIA ACCESS TO VITAL FINANCIAL RESOURCES.

Section 399b undercuts the very governmental interest that it was enacted to serve—it undermines the growth and development of public broadcasting by limiting broadcasters’ access to crucial funding sources. Moreover, the statute is not supported by legislative history and is undermined further by the practical realities in which public broadcasters operate today. Finally, § 399b’s ban on speech is not necessary to ensure that public broadcasters adhere to their mission. 7

A. Section 399b Creates Unnecessary Financial Challenges for Public Broadcasters, Especially for Smaller Providers.

Although § 399b was intended to allow public broadcasters to “better meet the challenge of reduced Federal support,” H.R. Rep. No. 97-82, at 13-14 (1981), public broadcasting remains severely underfunded today. The Corporation for Public Broadcasting (“CPB”)— the nonprofi t private corporation that was created to distribute federal funds to public broadcasters—has stressed that the “greatest long-term challenge [for public broadcasting] is that it has always been underfunded.” In the Matter of Public Notice the Future of Media & Information Needs of Communities in a Digital Age, F.C.C. No. 10-25, at 17 (May 7, 2010), available at http:// cpb.org/future/TheFutureofPublicMedia.pdf. The situation has not improved in recent years. According to a recent CPB report, public broadcasters are operating at a “time of decreasing support from nonfederal sources.” CPB, ALTERNATIVE SOURCES OF FUNDING FOR PUBLIC BROADCASTING STATIONS 20 (June 20, 2012); see also id. at 18 (“[C]haritable giving for public television declined by 13 percent between 2005 and 2010.”); id. at 19 (“[F]oundation support appears to be increasingly diffi cult to obtain . . . . Revenue from state and local governments, universities, and from the provision of services to state and local agencies and educational institutions has declined signifi cantly.”); id. (“[P]ublic broadcasting revenue from corporate underwriting declined sharply during the recession as corporations cut back on their spending for marketing and promotion.”). 8

The ﬁ nancial outlook is especially challenging for smaller, newer public broadcasting stations, many of which do not receive federal funding from CPB. “CPB is the largest single source of funding for public television and radio programming,” Glenn J. McLoughlin & Mark Gurevitz, Cong. Research Serv., RS22168, THE CORPORATION FOR PUBLIC BROADCASTING: FEDERAL FUNDING & ISSUES 1 (2014), and distributes funds in accordance with a statutory formula, see U.S. Gov’t Accountability Ofﬁ ce, GAO-11-660R, PUBLIC RADIO AND THE ROLE OF FEDERAL FUNDING 17 (2011). Under that formula, smaller broadcasters and new market entrants are generally disfavored. See, e.g., id. at 18 (“Organizations that operate larger local public radio stations tend to receive more total CPB funding than organizations that operate smaller stations.”). In fact, amici WXRY and MHz receive no CPB funds at all. Neither does Petitioner Minority TV.

In particular, Section 399b’s advertising ban bars these small market players from alternate sources of funding—namely, commercial advertisements. At least with regard to these stations, § 399b’s ban works against one of the statute’s primary objectives—fostering a “[d]iversity of ideas” and ensuring that “the American people are . . . guaranteed new and varied choices in broadcast programming.” Public Broadcasting Amendments Act of 1981: Hearing on H.R. 3238 and H.R. 2774 Before the H. Subcomm. on Telecommunications, Consumer Protection, and Finance, 97th Cong. 31 (1981) (statement of Robert Matsui, Member. H. Subcomm. on Telecommunications, Consumer Protection, and Finance) (hereinafter “Hearings”). Smaller stations can provide diversity of content within the public broadcast landscape and better reﬂ ect the interests of local communities. Their 9 potential to provide such diversity would be even greater with access to additional sources of funding.

B. Section 399b Is Not Supported by the Legislative Record and Is Undermined by Practical Realities that Public Broadcasters Face Today.

Moreover, § 399b is not supported adequately by legislative history and is undermined by the regulatory environment in which public broadcasters operate today.

1. Section 399b’s Content-Based Restrictions on Speech Are Not Supported by Legislative History.

Section 399b is a content-based ban on speech, including political speech at the core of the First Amendment. Generally, this Court has held content-based restrictions to the most exacting degree of scrutiny.3 See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395 (1992) (“[T]he ‘danger of censorship’ presented by a facially content-based statute . . . requires that that weapon be employed only where it is ‘necessary to serve the asserted [compelling] interest.’” (citations omitted)); Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (holding that to justify a content-based restriction on speech, the “State must speciﬁ cally identify an ‘actual problem’ in need of solving . . . and the curtailment of free speech must be actually necessary to the solution.” (citations omitted)); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 680 (1994).

3. Petitioner Minority TV asks this Court to hold that strict scrutiny applies to restrictions on broadcasters’ content-based speech. Pet. at 3. Amici agree with and support Petitioner’s position. 10

Laws that burden core political speech are also subject to strict scrutiny, and are reviewed with a high degree of vigilance. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339-40 (2010) (“The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political ofﬁ ce.” (internal quotations and citations omitted)); Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007) (“‘Congress shall make no law . . . abridging the freedom of speech.’ . . . Our jurisprudence . . . has rejected an absolutist interpretation of those words, but when it comes to drawing difﬁ cult lines in the area of pure political speech—between what is protected and what the Government may ban—it is worth recalling the language we are applying.”). This demanding standard also applies to “commercial” political speech in the form of campaign advertisements and issue advocacy. See id.

In the broadcasting context, current law relaxes the standard of review, but still requires that legislative restrictions that burden protected speech be “narrowly tailored to further a substantial government interest.” FCC v. League of Women Voters, 468 U.S. 364, 380 (1984). Even where the Court is not applying strict scrutiny, it has recognized that, “[i]n the First Amendment context, ﬁ t matters.” McCutcheon v. Fed. Election Comm’n, 2014 WL 1301866, *22 (U.S. Apr. 2, 2014). Thus, intermediate scrutiny requires at a minimum “a ﬁ t that is . . . reasonable; that represents . . . [a disposition] whose scope is in proportion to the interest served . . . [and] that employs . . . a means narrowly tailored to achieve the desired objective.” Id. (citations omitted). A review of § 399b’s legislative history demonstrates that § 399b fails this test. 11

Notably, § 399b’s legislative history reﬂ ects Congress’s recognition that there was no evidence upon which it could make even an educated guess about the effects of so-called “commercialization” because public broadcasters were never permitted to engage in promotional activities. See, e.g., 127 Cong. Rec. at 13141 (noting that in discussing an amendment that would permit institutional advertising, “it became clear that we really had very little information on hand that would provide us with the data that we need in order to make a good decision about advertising on public broadcasting”). Ultimately, Congress had “no idea what impact [advertising] would have on programming.” Id.

As a result, Congress commissioned a limited study to examine such effects. This 30-year-old study—which, as Judge Kozinski noted, is “the only evidence in the record about the real-life consequences of allowing public broadcast stations to run commercial advertisements”— was incomplete and does not provide support for the ban. Minority Television Project, Inc. v. FCC, 736 F.3d 1192, 1219 (9th Cir. 2013) (Kozinski, J., dissenting).

The study, dubbed the Advertising Demonstration Program,4 was limited in scope, covering only seven public television stations that aired limited commercial

4. The Advertising Demonstration Program was conducted from 1982 to 1983 and designed by a Temporary Commission on Alternative Financing for Public Telecommunications, made up of representatives from the FCC, Congress, public broadcasters, and other industry stakeholders. See generally Temporary Commission on Alternative Financing for Public Telecommunications, Temporary Commission Report on Alternative Financing for Public Telecommunications 16 (1983); id. Appendix I at 8. 12

advertisements over five financial quarters.5 See generally Temporary Commission on Alternative Financing for Public Telecommunications, Temporary Commission Report on Alternative Financing for Public Telecommunications 12-16, 18 n.1 (1983) (hereinafter “Report”). No public radio stations participated, and the Temporary Commission supervising the study explicitly prohibited the participating television stations from airing advertisements promoting “religious interests, political candidates, or opinions on matters of public interest.” Report at 16.

The Temporary Commission’s report to Congress at the conclusion of the program found that permitting limited commercial advertising “added signiﬁ cant net revenues to participating television stations’ budgets,” yet correlated with “no net negative impact on viewing patterns, numbers of [viewers], or contributions.” Id. at ii. In fact, polls taken after the advertising program had begun showed an increase in the number of viewers who said they would continue to contribute to public television. Id. at 22. Perhaps most signiﬁ cantly, permitting limited commercial advertising on participating stations correlated with “no measurable advertising related effects on programming.” Id. at ii. The Temporary Commission compared samples of participating stations’ programming

5. Seven stations opted to run limited advertising during the study. Those stations were WTTW of Chicago, Illinois; WHYY of Wilmington, Delaware and Philadelphia, Pennsylvania; WPBT of Miami, Florida; WYES of New Orleans, Louisiana; KCSM of San Mateo and San Francisco, California; WIPB of Muncie, Indiana; and WQLN of Erie, Pennsylvania. See Report at 18. Another two stations participated in the study, but only opted to air expanded underwriting credits. See id. 13 during the demonstration program with samples of programming from the previous year, and found no advertising-related inﬂ uence on the program selection process by the participating broadcasters. Id. at 20. Where advertising had a measurable effect on programming at all, it was that the increased revenue allowed stations to acquire programs they could not otherwise afford to purchase. Id. at 20-21.

Thus, the only congressionally-authorized study to date on the effects of commercial advertising on programming by public broadcasters demonstrated that permitting limited advertising would alleviate broadcasters’ budget challenges while leaving intact the character and quality of the content public media provides and the public’s perception of and trust in these stations. Yet the Temporary Commission ultimately recommended to Congress that the advertising ban should remain in place because—unsurprisingly, given the program’s inherently limited scope and duration—the program did not conclusively establish whether the overall beneﬁ ts to public broadcasting of permitting advertising would exceed the potential costs. Id. at 45-46. The program did not reach any conclusive results because it could not given the limited participation in, duration of, and scope of the study. The results that the study did produce were overwhelmingly positive, however, and the government never put forth a shred of evidence contradicting those results.

Moreover, if Congress’s concerns about commercial advertising were supported only by speculation, § 399b’s most worrisome prohibitions—restrictions on political and message advertising—have no support in the statute’s 14

legislative history at all. See generally Pet. App. 55a (Kozinski, C.J., dissenting). The legislative history is silent about infl uence purportedly wielded by organizations that sponsor issue advertisements. With regard to political speech, apart from a few isolated statements advocating the importance of insulating public broadcasting from special interest influences,6 including political interests, there is nothing in § 399b’s legislative record demonstrating why a prohibition on political advertising is necessary to ensure that public broadcasters adhere to their mission. See, e.g., 127 Cong. Rec. at 13145 (noting a need to “insulate public broadcasting from special interest infl uences—political, commercial, or any other kind”); H.R. Rep. No. 97-82, at 16 (listing as a criterion for alternative fi nancing mechanisms the “insulation of program control and content from the infl uence of special interests—be they commercial, political or religious”).

Thus, not only is § 399b’s advertising ban unsupported by legislative history, but it is also undermined by the only empirical study of the effects of advertising on public broadcasting that exists on the record—a study that Congress itself commissioned to answer the many open questions posed at the time of the legislation’s passage. In other words, Congress failed to ensure—before and after

6. Despite a supposed concern about infl uence from “special interests,” § 399b allows non-profi t organizations to advertise themselves and the services they offer, which could also infl uence programming. Pet. App. 56a (Kozinski, C.J., dissenting) (“If there are reasons why infl uence by the Westboro Baptist Church, Heritage Foundation, Planned Parenthood, National Rifle Association, Middle East Research Institute, Family Research Council, Media Matters for America and AARP poses less of a threat than infl uence by entities commenting on issues of public importance of candidates for public offi ce, they are nowhere to be found in the legislative record.”). 15 the legislation’s passage—that the content-based speech restrictions of § 399b were tailored narrowly to promote the governmental interest at stake. The First Amendment demands more. Section 399b cannot withstand any form of heightened scrutiny.

2. Section 399b’s Speech Restrictions Are Not Justified in Light of the Regulatory and Technological Environment in Which Broadcasters Operate Today.

Section 399b’s advertising restrictions do not make sense considering the practical realities that public broadcasters face today. First, the technological landscape has changed dramatically since 1981, when § 399b was passed. Spectrum scarcity is no longer an issue and there is a proliferation of means of communication that do not use spectrum. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 534 (2009) (Thomas, J. concurring) (“[E]ven if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justiﬁ ed at the time of Red Lion and Paciﬁ ca, dramatic technological advances have eviscerated the factual assumptions underlying those decisions.”). In fact, television programming is now increasingly streamed over the Internet. See, e.g., In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 28 F.C.C.R. 10,496, ¶ 191 (2013). Similarly, a multitude of radio programs are available over the Internet. For example, National Public Radio (“NPR”) offers a variety of podcasts.7

7. See Podcast Directory, NPR, available at http:// www.npr.org/rss/podcast/podcast_directory.php? type=title&id=-1 (last visited Apr. 12, 2014). 16

Second, § 399b permits certain forms of promotion even of commercial products by sponsors already, with no effect on public broadcasters’ continuing loyalty to their educational mission. For example, § 399b leaves broadcasters free to air enhanced underwriting. See, e.g., Commission Policy Concerning the Noncommercial Educational Nature of Educational Broadcasting Stations, 97 F.C.C. 2d 255 (1984) (permitting donor acknowledgements that include: “(1) a logogram or slogan that identiﬁ es but does not promote; (2) locations; (3) value neutral descriptions of a product line or service; and (4) trade names, product or service listings that aid in identifying the donor”).

Notably, the legislative history of § 399b refl ects that the same people who had concerns about commercialization through commercial advertising were also concerned about the effects of underwriting. One witness, for example, testifi ed that underwriting “undermines the basic purpose of public broadcasting” by “infl uencing specific programming by donors.” Hearings, at 112 (urging Congress to adopt a spectrum fee to fund public broadcasting). Moreover, the Director of Advertising at General Telephone & Electronics Corporation (“GTE”) confi rmed that GTE’s decisions whether to underwrite certain programs depended, in part, on the content of those programs. Id. at 65 (“We would not be interested in programs which we did not feel said something about our involvement. I do not think we would underwrite children’s programming or fi ne arts programming, for example.”). Nevertheless, Congress allowed underwriting, and despite the supposed temptation this created for public broadcasters to steer programming content in a manner that would attract underwriters, public broadcasting is 17 alive and well today, and faithful to its mission of providing quality, meaningful programming.

Furthermore, it is important to note that Congress allowed enhanced underwriting in 1981 because it hoped to create a source of funding that would help compensate for the budget cuts. The existence of § 399b, however, combined with the FCC’s inconsistent enforcement of its rules applying § 399b’s advertising ban, has limited underwriting’s utility as an alternative funding source.

To illustrate, the FCC’s requirement that underwriting announcements, to be consistent with § 399b, must be free of “calls to action” has caused confusion among broadcasters. NPR has, for example, aired an underwriting credit for the pharmaceutical Nexium containing the exhortatory language, “Ask your doctor.” While NPR decided to air this credit after seeking approval in informal guidance from the FCC, several NPR afﬁ liates were afraid to do so, believing it to be inconsistent with the FCC’s guidelines. See Dan Odenwald, Hot Over Heartburn Credit, CURRENT, April 7, 2003, available at http://www. current.org/wp-content/themes/current/archive-site/ cm/cm0307credits.html. The fact that the FCC provided informal guidance to NPR provided little comfort to the afﬁ liates because this informal guidance would not carry the force of law in any future agency adjudication. Id.

Not surprisingly, commentators have noted that the FCC’s guidelines are far from clear. See Andrew D. Cotlar, You Said What? The Perils of Content- Based Regulation of Public Broadcast Underwriting Acknowledgements, 59 FED. COMMN’S L.J. 47, 53-61, 64 (2006) (analyzing FCC enforcements of its prohibition on 18

qualitative or comparative descriptions in underwriting and concluding that “there is substantial evidence that the administrative enforcement of Section 399b has been inconsistent and apparently arbitrary to the extent that it is often difﬁ cult to predict which statements may be allowed and which prohibited”). And while some smaller stations are afraid to push the rules, fearing substantial monetary penalties of up to $25,000 for each underwriting credit found to violate FCC policy, see 47 U.S.C. § 503(b)(2), other major stations have been pushing the envelope and testing the scope of the advertising ban. For example, during pledge drives, PBS member stations regularly air infomercial-like programs promoting lifestyle books or DVDs and CDs of performances, and then tout those books or recordings as gifts to subscribers who donate at certain levels. See Michael Getler, More Pledge Madness, PBS.COM, March 20, 2009, available at http://www.pbs. org/ombudsman/2009/03/more_pledge_madness.html. As applied, therefore, § 399b’s ban disfavors small stations that are less able to take the risk of being penalized by the FCC.

C. Section 399b Is Not Necessary To Ensure that Public Broadcasters Adhere to Their Mission.

Finally, public broadcasters are not looking to change their mission.8 What they need are the resources to

8. Many public broadcasters, including MiND TV, maintain guidelines that affi rm their commitment to community focused and editorially independent content. MiND TV’s Code of Integrity affi rms that the station will “[p]rotect the editorial process from the fact and appearance of undue infl uence, exercising care in seeking and accepting funds, setting careful boundaries between contributors and the creative/editorial creators, and being honest 19 survive and to improve their offerings when possible. By limiting broadcasters’ choices as to what speech to allow and their access to much needed fi nancial resources, § 399b actually undermines the governmental interest it was enacted to serve.

Some advertisers are “interested more in an upscale public [that watches public broadcasting] than [they] are in the general public.” Hearing, at 69. Underwriting alone, as currently constrained by § 399b, leaves this market largely inaccessible to the stations that could beneﬁ t from it. The inability to advertise price or to publicize a company slogan, for example, can be a deal-breaker when public broadcasters attempt to attract underwriting opportunities. Section 399b therefore hinders public broadcasters’ ability to fundraise.

There are alternatives to this situation. Indeed, several alternatives short of a content-based ban on speech were available to Congress in 1981—and are available to Congress today—to ensure that public broadcasters adhere to their mission. Most obviously, Congress could

with the audience.” Public Media Code of Integrity, MIND: MEDIA INDEPENDENCE, available at http://www.mindtv.org/public- media-code-integrity/ (last visited Apr. 16, 2014). Further, MiND TV’s Editorial Guidelines instruct that: (1) “In general, the overall appearance and presentation of MiND shall be non-commercial; (2) In all cases, editorial control and ﬁ nal content decisions shall be made by MiND or the producer, and not by the funder; and (3) The principal purpose of MiND’s presentation of a program may not be the promotion of a product or a service provided by a for-proﬁ t company.” Editorial Guidelines, MIND: MEDIA INDEPENDENCE, available at http://www.mindtv.org/?s=community+standards#cs (last visited Apr. 16, 2014). 20

have adopted time, place, and manner restrictions similar to the ones the Temporary Commission put in place for participants of the Advertising Demonstration Program. See Report at 15 (stating that the authorizing legislation for the advertising program required that “no advertisements were to interrupt programs, except as part of station identiﬁ cation or similar breaks in programs running two hours or more,” and “advertisements were not to be broadcast consecutively for more than two minutes, nor was there to be more than a single cluster of commercials broadcast during any 30-minute period”). Similarly, instead of an outright ban on speech, Congress could have limited commercials in quantity and length, and could have prohibited advertising from interrupting programming. Yet the legislative history demonstrates that these alternatives received no consideration.

Congress also could have applied CPB regulations requiring community involvement to independent stations. For a privately-owned broadcast station to receive government funding, the Communications Act would require it to establish a community advisory board to ensure that the “diverse needs and interests” of the communities it served would be met. 47 U.S.C. § 396(k)(8). The CPB has elaborated on this requirement by issuing guidelines to the stations it funds as to the composition and mission of the community advisory boards, and requiring annual certiﬁ cation of compliance with the guidelines. COMMUNITY ADVISORY BOARD REQUIREMENTS, CPB, available at http://www.cpb.org/stations/certiﬁ cation/ cert3.html. These rules help to ensure that public broadcasters adhere to their missions. Congress could have required all stations receiving a public broadcasting license follow these guidelines, as opposed only to those receiving CPB funding. This could have served as an 21 effective, yet less restrictive, means of ensuring the desired level of connection between public broadcasters and the communities they serve. But § 399b’s legislative history, however, shows that it was not considered.

In short, public broadcasting as we know it is capable of surviving without § 399b’s wholesale ban on paid content. There is no real proof to the contrary. Amici respectfully submit that the time has come for this Court to decide whether the prohibition is still consistent, assuming it ever was, with the First Amendment’s guarantees.

CONCLUSION

For the foregoing reasons, amici curiae MiND TV, WXRY, MHz, and Public Broadcast Marketing, Inc. respectfully urge the Court to grant the petition for writ of certiorari.

Respectfully submitted,

MICHAEL H. PARK Counsel of Record VERNON L. FRANCIS IRENE AYZENBERG-LYMAN JOCELYN HANAMIRIAN DECHERT LLP 1095 Avenue of the Americas New York, NY 10036 (212) 698-3530 [email protected]

Counsel for Amici Curiae April 18, 2014