Daniel Armstrong Fourth Interview: June 21, 2012

-126- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG Fourth Interview – June 21, 2012 This interview is being conducted on behalf of the Oral History Project by the Historical Society of the District of Columbia Circuit. The interviewee is Daniel “Mack” Armstrong and the interviewer is Matthew S. Sheldon. The interview is taking place at 901 New York Avenue, NW, Washington, D.C., at the law offices of Goodwin Procter on June 21st, 2012. This is the fourth interview. MATTHEW SHELDON: Mr. Armstrong, thanks for joining us today. We have a number of wrap-up topics planned for today including your retrospective thoughts on FCC chairmen over the years, your interaction with other federal agencies during your time at the FCC, and important FCC decisions during your time there and your most memorable D.C. Circuit Court appearances. I’d like to begin, as we discussed, with your thoughts on the FCC chairmen that you’ve worked with over the years. MR. ARMSTRONG: We spoke before about Chairman Wiley who was responsible for my becoming the Chief of the Litigation Division, and I was very laudatory of him then and have no reason to say anything different now; I won’t spend any more time on him. He was – I actually began at the Commission when Chairman Burch was there, and I was briefly introduced to Chairman Burch but at the time he was there, I was a staff person in the Litigation Division, and although his special assistant, Mr. Lichtenstein, was really responsible for opening the door at the Commission for me, I don’t recall any interaction with Chairman Burch. He left within a year after I began there, so really my first chairman was Chairman Wiley. He was succeeded by Chairman Ferris in the Carter administration and I did not, we had personal pleasantries speaking to each other, I didn’t spend a lot of time working directly in the office with Chairman Ferris. -127- I do remember that, I believe it was when the Pacifica decision came out, that decision came out about three weeks after the Supreme Court’s decision in the newspaper/broadcast cross-ownership case. Reading between the lines and in light of a subsequent proceeding involving the Chairman, Chairman Ferris, I believe it is fair to say that, from a policy perspective, if not a legal perspective, he was not a supporter of the results in those two cases. After the Pacifica decision, he smiled and spoke to some of the litigators and said something like when are you people going to win a case that I can live with. He made it very clear almost immediately after Pacifica that he intended to give it a very narrow reading. And he thought that the cases in which the Commission would be punishing the broadcaster for indecent broadcasting would be very few and far between, as they were for the next decade until the Commission began to be more proactive on the indecency front. The newspaper/broadcast cross-ownership case, which he also mentioned in that remark about bringing a case he could live with, did precipitate probably one of the more unpleasant personal situations in which I found myself at the Commission. I spoke earlier about a license renewal proceeding involving a television station in Daytona Beach and gave that as an example of a case where our rehearing petition was denied, but the panel essentially gave us the relief we were seeking by rewriting its opinion. Before the petition for rehearing was filed, however, there were some tense moments at the Commission. The Commission was frequently divided in these comparative renewal cases, but usually there was a majority in favor of renewing the incumbent and denying the challenger. That was the result in the Daytona Beach case. In an opinion issued shortly after the Supreme Court’s decision on the divestiture issue in the newspaper cross-ownership case, and written by Judge -128- Wilkey, a respected and generally conservative judge, the D.C. Circuit remanded the Daytona Beach proceeding. The opinion was sharply critical of what it considered was the Commission’s bias in favor of incumbents in comparative renewal cases. The Chairman seemed to believe as a policy matter that it was important to stop invariably preferring the incumbent in a comparative licensing proceeding. Two of the three other Democrats agreed with the Chairman’s basic position. The three Republican commissioners and one of the Democrats, Commissioner Quello, who was a more conservative-oriented Democrat, supported my recommendation for a stronglyworded petition for rehearing. I belonged to the group that believed the D.C. Circuit panel had erred because it paid almost no attention to the recent Supreme Court cross-ownership decision, which we believed strongly supported the validity of generally renewing the incumbent’s license when the incumbent was challenged at renewal by a competing applicant. We also believed that the panel’s position on the renewal expectancy issue conflicted with an earlier D.C. Circuit opinion in the Greater Boston comparative renewal case. Our group very much wanted to go for rehearing en banc. There was also pressure from the broadcast industry to file that type of petition because the industry feared that the panel’s opinion put many, many broadcasters at risk of being displaced in a comparative proceeding because the D.C. Circuit seemed to say that in order for an incumbent to get a renewal expectancy, it must have an exceptionally good programming record. And the industry lawyers argued that by definition, exceptional is a description that can apply to only a few. Instead of exceptional, a substantial or solid record should be sufficient. MR. SHELDON: How did the industry put pressure on the FCC? -129- Mr. ARMSTRONG: Well they would – certainly industry lawyers would meet with attorneys in my shop, and you have to be careful because an ongoing adjudicating proceeding is involved and there are ex parte limits on the extent to which you can speak with a Commissioner. There is, however, a litigation exception, you can always talk to the General Counsel’s office about litigation matters. And I believe – there was a way I suspect in which members of the Commission were aware of the fact that the panel’s opinion was causing great consternation among the ranks of broadcasters and their attorneys. The Chairman didn’t oppose seeking rehearing en banc, but the Chairman favored what in my judgment would have been a narrowly crafted petition for rehearing en banc, and two members of the Commission agreed with him. The other four members of the commission were sympathetic to my recommendation that we needed to come on very strongly in challenging the panel’s decision. My boss, the General Counsel, is an appointee of the Chairman and not surprisingly, he supported the Chairman’s position. So this was one of the rare occasions in which I was before the Commission in a closed meeting, pushing for a recommendation that went against the wishes of the Chairman and went against the wishes of the General Counsel. But there were four out of seven commissioners there who prepared to accept that recommendation. So it was accepted, we filed a very strongly worded petition for rehearing en banc. We have already discussed what happened at the D.C. Circuit after that petition was filed. MR. SHELDON: Did you ever get a sense of any hard feelings from Chairman Ferris? Mr. ARMSTRONG: No, I didn’t and likewise with the General Counsel. You know I was always, for the remainder of their term, I was somewhat reticent when I was around them -130- because I was aware that had not been a pleasant encounter, but every contact was extremely pleasant from then on, it did not result in any hard feelings. MR. SHELDON: What kind of governing style did Chairman Ferris have? MR. ARMSTRONG: I always thought he was – he didn’t have his majority in this particular case, he lost one of his fellow Democrats – but I always thought he was one of the most effective chairmen in terms of knowing exactly what he wanted to do when he came here and ensuring that he had four votes to do it. He subsequently indicated that denying a renewal application I think was something from a policy perspective that he believed would be beneficial. He did not succeed in using the Daytona Beach case to accomplish that result. He did, however, before he left the Commission, succeed in getting a 4-3 Commission vote to deny the renewal applications of three large-market television stations licensed to RKO. Commissioner Quello remained on the Commission and he dissented, but this time, a recent Republican appointee agreed with three Democrats and the three RKO renewals were thus denied by a 4-3 vote. There were some character qualifications issues against RKO. It was challenged by competing applicants, but the Commission majority decided the case against RKO on non-comparative grounds – before you reach the comparative part of the proceeding, the incumbent seeking renewal has to be found qualified – Chairman Ferris’s majority argued that RKO was not qualified to be renewed in Boston, New York, and Los Angeles. That needless to say precipitated a very high-profile appeal before the D.C. Circuit. The D.C. Circuit, in that appeal, sustained the denial of the renewal application in Boston but did not uphold the denial in Los Angeles and in New York. I can’t read his mind, but I suspect that was a result which was consistent with the Chairman’s belief that it would be beneficial to have at least one case where one of the big boys did not get renewed. The Chairman had complained -131- that, in cases where an incumbent broadcaster did not get a license renewed, all too often it was a very small fish, and he thought it would be healthy for a big fish to suffer that sanction. MR. SHELDON: Did you get a strong sense during Chairman Ferris’s time that he was trying to change the direction and policy of the Commission? MR. ARMSTRONG: He was an activist chairman. He was really the chairman that spearheaded the deregulation of cable television. He was very sympathetic to the position of the cable industry that the commission imposed too many regulations and restraints on them, which were designed to protect the over-the-air broadcasting industry from competition and again, in a very controversial policymaking proceeding, the chairman marshaled his majority for deregulating cable, that case was litigated in the Second Circuit, and I believe the deputy general counsel, David Saylor, successfully argued that case. MR. SHELDON: Who followed Chairman Ferris? MR. ARMSTRONG: Chairman Fowler who was President Reagan’s appointee, and there was a very brief interval before Chairman Fowler got there. But after the Reagan administration had assumed office, in which a very senior member of the Commission on the Republican side, Commissioner Bob Lee, served as the Chairman. Chairman Ferris was still in his office. He was still a member of the Commission for about three or four months, but the effective powers of the chairman were really exercised by the senior Republican, Commissioner Lee, for the first three or four months of the Reagan administration. I never knew this first hand, but I was led to believe that Chairman Ferris who was aware that some of his policy decisions had been very controversial, and had aroused strong opposition on the Republican side, consulted with one of his predecessors, Chairman Burch, who was a Republican and an understanding was reached. Chairman Ferris would remain a member of the -132- Commission; he would not submit his resignation for several months. But from January until May, he would not exercise the powers of the Chairman’s Office; that would be done by the senior Republican who was Commissioner Lee. Acting Chairman Lee, during that brief time, was very instrumental in pushing along the development of cellular telephones. As hard as it is to believe now, when I first came to the Commission, and for about the first six or seven years I was there, there weren’t any cellular telephone licensees out there. MR. SHELDON: I didn’t mean to interrupt. Continue your thoughts on the Chairman. MR. ARMSTRONG: No, I think that was basically the point I wanted to make about Chairman Ferris. He was not a conciliator in the sense that he would try very hard to get the largest possible majority for important policy decisions. What he cared about was the bottomline result, and if it had to come about by a 4-3 vote, as opposed to a 7-0 vote, he could accept it. MR. SHELDON: What were your thoughts when Reagan made his appointment for Chairman? MR. ARMSTRONG: Mark Fowler, who was his appointee, had been a broadcast attorney in a D.C. communications. I think it was a communications boutique firm. He was known during the transition period as a longtime supporter of then candidate Reagan, even, I think, in the nominating contest going back as far as ’76 when Reagan had almost defeated President Ford. It did not come as a great surprise when he became the nominee for Chairman. And he came in very outspoken on the deregulatory side. Very critical of the Fairness Doctrine, which was probably one of the things he’s best remembered for; very late in the Reagan administration, there was a D.C. Circuit decision that clearly established the Commission’s authority to repeal the Fairness Doctrine. -133- There was a view during much of Chairman Fowler’s tenure that the Fairness Doctrine was statutorily required by Section 315 of the Communication Act. So he – the approach he took was to try and create a record for the ultimate demise of the Fairness Doctrine, but without going so far as to repeal it given that widely held understanding of Section 315. The green light from the D.C. Circuit came a few months before Chairman Fowler departed. My memory is a bit hazy but whether the proceeding to repeal the Fairness Doctrine was completed before Chairman Fowler burned turned the reins over the Chairman Patrick. I think, however, that the repeal occurred under Chairman Patrick’s leadership. Much of the groundwork was clearly done, however, during Chairman Fowler’s time. MR. SHELDON: What was Chairman Fowler’s governing style like? Did he come in and make sweeping changes, or was he an incrementalist? MR. ARMSTRONG: I would say he was aggressive. One thing did happen during his regime. The Commission went from seven commissioners to five. This was approximately a year into his administration and there was a senior Republican member of the commission. His appointment came up for renewal. Chairman Fowler wanted to replace that commissioner, who was a Republican but of a different philosophy from Chairman Fowler. He wanted to replace him with the General Counsel who had been appointed by Chairman Fowler, and who was more in line with Chairman Fowler’s views. The General Counsel, who was my boss and had once worked for me as a junior attorney when I first became the Chief of the Division, had become a controversial figure in some of his dealings I think with members of Congress. So there was some resistance to putting him on the Commission. A year after this vacancy came up there was a member, a Democrat on the Commission whose turn came up, and when all the smoke cleared, I believe the arrangement was they would -134- give the Chairman’s preferred Republican appointee a short term, for like a year, and then his term and the regular term of the Democrat on the Commission would expire, and the deal was those terms, those two commissioners will serve out their terms, those seats on the Commission will be abolished when that happens. The effect was the Commission went from a seven-person commission to a five-person commission. I think we talked before about the policies of the Commission which tried to give a break to minorities and to women in licensing policies, trying to have more women owners and more minority owners. Chairman Fowler was skeptical about the constitutionality of those policies. And he was aggressive in trying – there was a decision of the D.C. Circuit, if I remember correctly, on that area. I have sort of forgotten what the facts are, but the issue came to a head as a result of some proceedings in the D.C. Circuit, and Chairman Fowler very much wanted to use the decision in the Steele case by some of the more conservative judges on the D.C. Circuit who found one of those policies to be invalid, as a basis for trying to accomplish his preferred policy result which was to drastically cut back on these policies. The result, again, was a painful time for me because from the perspective of my office, there seemed to be a basis for challenging on rehearing the court’s decision, and the decision thus should not be uncritically accepted and made the catalyst for a broad proceeding looking into the validity of the minority ownership policies in general. MR. SHELDON: How do you think Chairman Fowler viewed you? As a good Nixonian Republican? MR. ARMSTRONG: Well that’s an interesting question because obviously I had come to the Commission during the Nixon administration, and I always, I consider myself to be on the conservative side of the Republican Party. If he even thought about it, Chairman Fowler -135- probably concluded that I was not in his wing of the Republican Party. He always treated me, however, with great respect. When he came around to visit the different offices very early in his tenure, he came in to my office, and I think he was appalled to see that in addition to having a messy office I had one of those very old-time rotary telephones. I wasn’t being singled out, but I remember he was one who I think at least got us into the more modern age with better telephones, and I remember his commenting on that. We later had a proceeding at the Commission that ultimately went to court concerning how the Commission should proceed in these large – in the case of these large corporate licensees, which become the subject of a corporate proxy fight. Either a proxy fight or a tender offer, and that of course is a common occurrence in corporate law. It created some difficulty when the corporation held FCC licenses, because the Communications Act prohibits the unauthorized transfer of control of broadcast licenses, and if there’s a successful proxy fight, or a sufficient number of shares are tendered in a tender offer, corporate control can change before the new controlling interest has had an opportunity to come to the Commission and obtain approval. So the Commission was trying to be creative. I don’t remember the specific facts, but Chairman Fowler, I believe, was even more creative than the majority of the Commission, and I had from a legal point of view, supported the majority’s more restrained approach to trying to adopt something that could pass judicial muster. The Chairman didn’t get his way, but he was very nice, not too many times, I was specifically called by a Chairman and asked personally to argue the case when it got to the D.C. Circuit. But this is one time I remember after he lost the vote, he knew the case was going to the court. And he turned to me and said, “Mack, I hope you’re arguing this case. I want you to argue it.” So I took the argument and we were successful in the initial litigation on that issue. A couple years -136- later, Judge Bork wrote an opinion which basically indicated that review was premature in these cases. MR. SHELDON: You mentioned Chairman Fowler’s particular stripe of Republican. Were there any grumblings among the more permanent staff at the FCC regarding Chairman Fowler’s reign or how he handled his term? MR. ARMSTRONG: I think this is a good opportunity again to emphasize that the career staff viewed themselves as professionals, and they viewed themselves as there to try and if there were a way to do what the Chairman wanted done they, it was their job to try to do it, and I have no doubt that there was private concern about the Chairman’s generally conservative political philosophy. But I don’t recall a single incident where anybody said, I don’t want to work on that matter because we will be doing something that I don’t approve of. The Fairness Doctrine proceeding was obviously very controversial, and the Chairman’s views on the policies favoring more minority and women owners, obviously were as well. And Chairman Fowler even began to revive indecency enforcement. I mentioned earlier that Chairman Ferris said we’re not going to have many indecency enforcement cases. Just before Chairman Fowler left, he began a more aggressive approach to indecency enforcement. And there was some – it didn’t affect what anybody did in their job, but I do think I remember over some informal conversation across the street at a very nice establishment in our area after work, there were people who said Chairman Fowler has had as a hallmark of his regime, from the beginning, trying to repeal the Fairness Doctrine, and he believes broadcasters should essentially be on the same plane as newspapers when it comes to the First Amendment. He didn’t believe that the Red Lion regime of reduced First Amendment protection for broadcasters was correct. If it ever were correct it certainly wasn’t correct in light of the developments since the Red Lion -137- decision came down. But then these people, having taken note of that, said that now about the time he’s leaving the Commission, he is going to be remembered for a more aggressive enforcement policy on indecency. This school of thought viewed censorship as being much more serious under the first amendment than the Fairness Doctrine, which didn’t involve censorship. It merely involved a requirement affirmatively to put on certain programming. These people smiled wryly, and said, it looks like the Chairman has it backwards. But it never, never resulted in any difficulty in getting people to try to do the best they could. MR. SHELDON: What led to Chairman Fowler’s departure? MR. ARMSTRONG: He’d been there from ‘81 until ’87, and very few Chairman served for the full time in office of the President who appointed them. MR. SHELDON: And then Chairman Patrick came in. MR. ARMSTRONG: That’s correct. He had been a member of the commission during the latter part of the Fowler years. I thought particularly highly of him because his General Counsel had been his special assistant, and she maintained a very close – he had great confidence and great trust in her, and she in turn had great – a big, wonderful relationship I think with her staff, and she very much, she was one of those general counsels who actively involved her staff in many of her discussions with the Chairman about his agenda. I’m certain, I’m sure she had many non – many private meetings and private conversations with him. I don’t mean to say that we were on the same level she was on in dealing with the Chairman, but she seemed to value our input, and she frequently was happy to have our input on display directed to the Chairman. So we had a lot of interaction with the Chairman’s Office under Chairman Patrick, and I liked it very much. I always thought he was particularly good at inviting people to express their views even when those views differed -138- from his… he was as resolute in pursuing his policies as any chairman I had known. In ’86 the Democrats won back the Senate, so he was dealing not only with the House of Representatives controlled by the opposition party, he was also dealing with the Senate that was controlled by the opposition party. And he was controversial with some of his conservative positions, and we did not, I believe we only had three commissioners for most of the time that he was the Chairman because they couldn’t get confirmation of anyone to fill two vacancies so we basically operated with a three-person Commission for most of the time he was there. He was the Chairman for only about two years. He left shortly after President Bush 41 took over. Another Republican, Sikes, was appointed Chairman, but Chairman Sikes I did not know nearly as well on a personal level as either Chairman Fowler or Chairman Patrick. His tenure illustrated a situation in which a Chairman effectively used the courts to accomplish one of his major policy goals where he could not obtain a Commission majority. The specific proceeding that I’m talking about concerned the financial interest and syndication rules. We spoke in an earlier session about my involvement in the litigation of the prime time access rule. That rule had been adopted in the early ‘70s along with two other rules, the financial interest and syndication rules, in a rulemaking that sought to reduce the dominance of the three networks NBC, CBS and ABC. The Motion Picture Association, led by Jack Valenti, was very vigorous in its defense of the financial interest and syndication rules, which essentially erected a wall between the networks and the Hollywood movie studios. And when the Hollywood movie studios, which also produced popular network television shows, were negotiating with the networks for the rights to televise these shows, the networks could not obtain a financial interest in the show as a condition of agreeing to show it on the air. And then when the shows had finished their network runs, and they went into reruns and into the syndication market, the -139- networks were walled off from that the syndication business. The networks very much wanted to get rid of those rules, and the Motion Picture Association of America, representing the big studios in Hollywood, very much wanted to keep them. So there was a truly vigorous lobbying war going on at the Commission. Chairman Sikes clearly was a deregulator on certain issues. It turned out, however, that one of the other Republican commissioners, Commissioner Marshall from North Carolina, became sympathetic to the studio’s position, and she would not support the Chairman’s preferred approach. Only one of the two Democrats, Commissioner Quello, voted with the Chairman. The third Republican commissioner, Commissioner Barrett, also declined to support the Chairman’s position, and Chairman Sikes thus ended up on the losing side of a 3-2 vote. The case became the subject of some maneuvering to see what court would get it. And the broadcast interests, they won the lottery, so to speak. They found a relatively small television licensee in, I believe it was South Bend, Indiana, in the Seventh Circuit, and that party – that broadcaster – was brought in to the case, and clearly as an aggrieved party had standing to file a petition for review. The broadcasters believed the Seventh Circuit would be a very favorable circuit in which to challenge the Commission’s failure to repeal these rules. The studios, on the other hand, very much preferred for the case to be heard in the Ninth Circuit. The Seventh Circuit won the lottery. MR. SHELDON: How did the lottery work? MR. ARMSTRONG: The building down by Union Station, there’s a – the Federal Judicial Center. They conduct – whenever the same order is challenged in more than one circuit within a certain period of time after the order is released, it’s our job at the Commission to send the petitions to the Federal Judicial Center which then conducts a lottery to pick the circuit to which all petitions for review are then transferred, so there’s only one circuit that ends up with -140- the case. We did that, followed that procedure in this case; I think some of the staff in the Judicial Center couldn’t quite figure out what was going on because during the 10 days or so between the commencement of the process and the conduct of the lottery they were getting all of these media inquiries, particularly from the Hollywood publications, that cover the studios in Hollywood. They were somewhat overwhelmed as to why these celebrity reporters were calling up to find out when they were going to do their job of conducting a lottery. But ultimately that’s how it got settled. And when the case got to the Seventh Circuit, the Seventh Circuit had its own internal procedures to pick a panel, and one of the Judges on the Seventh Circuit who was on the panel was Judge Posner. I was later told by some of the network attorneys that their strategy all along had been to hope for two things. They were hoping, one, that somehow or another the Seventh Circuit emerges as the court that gets this case, and two, they were hoping that either Judge Posner or Judge Easterbrook would then be on the panel. They got Judge Posner. This was a very tough case because normally you have a situation where you’re defending a position that the Chairman has taken so you work directly with the Chairman and his key staff people in preparing the brief. In this case, we had a monster at the Commission. We had the Chairman against us. That created a little bit of an awkward situation with some of the staff people at the Commission who generally answered to the Chairman and who had actively written the proposed order for the Commission, which turned into a dissent. The litigators thus had to report to and work with the three Commissioners in the majority who favored a lukewarm approach that didn’t really make anybody completely happy, but it was more supportive of the studios than it was the networks. We were trying to write a brief where we had to satisfy three masters, each of whom had legal assistants that wanted to have a hand in the brief. One of my staff attorneys in this particular case won my support forever because several times I just had to tell her in the course -141- of writing the brief, you’re going to have to go up there and deal with those three legal assistants who are pulling you in three different directions to try to get a brief filed because I can’t take it anymore, I’m too old. But I was punished because I had to go before Judge Posner for the oral argument in the Seventh Circuit, and he was predictably very, very difficult for the Commission, and he did come down with a very stinging decision. And there was one more proceeding in which – this time I had a happier appearance before him – in which he deferred to the Commission in terms of the timing of the repeal of the syndication rule. After the first opinion, the financial interest rule, if I remember correctly, was gone. The syndication rule, the Commission asked for a couple of years to phase it out, and we got that, but at the end of the day Chairman Sikes’s preferred policy approach was adopted, but it was not adopted by the Commission. It was adopted as a result of what the Seventh Circuit did. MR. SHELDON: And who followed Chairman Sikes? MR. ARMSTRONG: When the Clinton administration took over, Chairman Sikes left almost immediately. The senior Democrat on the Commission, Commissioner Quello, became Chairman Quello for most of the first year of the Clinton administration. You might not expect that someone who was clearly intended to be the Chairman only on an interim basis would be as effective as he was. But Chairman Quello was a very effective Chairman, and the thing that stood out about him in my memory was that he didn’t really seem to mind sharing the glory with his colleagues on the Commission. He shared worked with them as well. He did not insist that everything must be the work of his office, and then shares with the other offices under circumstances where the most they can do is object, but they don’t really have a feel that they are a big part of the decision-making process. Chairman Quello, I think, made his colleagues see themselves as very much a part of the process. It was an extraordinarily busy time for the -142- Commission because the Cable Act was passed in ’92. That Act gave the Commission a lot of rulemaking proceedings to conduct and sometimes placed a timetable on those proceedings , which meant that Chairman Quello’s year as Chairman was a very, very busy time spent satisfying the requirements of the Cable Act. And what I think could have been a very difficult time given the fact that the Commission was under interim leadership. It turned out that the first 10 months of ’93 were a very productive time for the agency which worked very well. The permanent chairman for President Clinton was Chairman Hundt. He came there probably around Thanksgiving of ’93, succeeding Chairman Quello. Chairman Quello remained on the Commission until I believe the early months of the second Clinton term. He died recently at a very old age. MR. SHELDON: With Clinton’s election after twelve years of Republican chairmen, what was the feeling at the Commission, particularly among the staff? Was there concern that there would be widespread changes or policy shifts? MR. ARMSTRONG: I don’t remember that there was. As I say we were well into the Clinton administration before the – I won’t call Chairman Quello a Clinton man because he’d been there since ’73, and although he served as Chairman for about a fourth of the first Clinton term with the Clinton administration’s blessing, I wouldn’t call him a Clinton person. So we were fairly far into the Clinton administration when the Clinton-appointee chairman arrived, and he hadn’t been there very long until the Republicans won the Congress back including the House of Representatives this time and then we had the government shutdown in ’95, and then the Communications Act of ‘96 was passed which was very much like the Cable Act of ’92 in that it put a lot on the Commission’s plate. A lot of rulemakings dealing with the introduction of competition into the local telephone markets, and it was just a very, very busy time going on. -143- Chairman Hundt was a somewhat controversial chairman and didn’t have a very good relationship with Commissioner Quello. Commissioner Quello, before Chairman Hundt arrived, generally in his 25 years or so as a member of the Commission, tried to give his vote to a chairman, of whichever party; he tried to be supportive of the various chairmen. His relationship, however, with Chairman Hundt, I am not giving away any secrets, this was public knowledge, was prickly to say the least. MR. SHELDON: What do you think caused that prickliness? MR. ARMSTRONG: To some extent it was probably their views. Chairman Hundt was the more typical person you would expect to be appointed to a position like that in a Democratic administration. Chairman Quello was a more conservative Democrat. I suspect it had something to do with the philosophical difference. A temperamental difference. Mr. Quello was sympathetic with the established interests, probably was also a contributing factor, particularly the broadcasters. He had lots of friends in the broadcasting industry. I don’t think Chairman Hundt had that background, and I don’t think he felt the need to cultivate friendships with the established broadcast industry. MR. SHELDON: Was there a difference in the viewpoints in commissioners and general counsel over the years as to whom the relevant constituency was, whether it was broadcasters or whether it was the public? MR. ARMSTRONG: I mentioned earlier that Chairman Ferris was very sympathetic to the cable industry’s desire to be deregulated. When Chairman Fowler took over, he was a deregulator across the board, but I think he was perceived to be particularly sympathetic to broadcasters. I would certainly think of the Commission under Chairman Ferris as an ally of public interest groups, but certainly some of the things he did were, he was responsible for a lot -144- of changes adopted as a part of radio deregulation and that proceeding upset the public interest community. They didn’t support the deregulation. On the other hand, the Ferris Commission was a supporter of policies intended to increase minority and female ownership of broadcast stations. At the career level, those of us on the staff spanning different administrations always assumed that the position of the public interest groups was more likely to get a sympathetic hearing and gain traction when the Democrats were in charge. Ironically, however, what I suspect the public interest community would regard as its finest hour in an FCC proceeding came with the help of the Third Circuit, when the Commission was under Republican leadership. The Commission in the early 2000s under Chairman Powell sought to relax the broadcast ownership rules, something that was strongly opposed by public interest groups. The order Chairman Powell wanted was passed by a sharply divided Commission on a party line vote was stayed by the Third Circuit at the behest of public interest groups. And those groups also subsequently prevailed on the merits of their challenge to the relaxation of these rules. MR. SHELDON: Who followed Chairman Hundt? MR. ARMSTRONG: Chairman Bill Kennard and that was another very satisfying moment for the General Counsel’s Office because Bill Kennard was the Commission’s General Counsel under Chairman Hundt. Bill was initially appointed to replace Commissioner Quello as a member of the Commission, but not the Chairman. Commissioner Quello had frequently been able to get reappointed by presidents of both parties, but this time, I assume in no small part because of the strong opposition of Chairman Hundt, the Clinton administration wanted a different Democrat to have that seat. I believe that before Bill Kennard was ever confirmed for that seat, Chairman Hundt decided to resign from the Commission and Bill was then -145- subsequently confirmed to take Chairman Hundt’s place in the Chairman’s Office. When you think of the Clinton years, you think first of Chairman Hundt and then Chairman Kennard. MR. SHELDON: What were your impressions of Chairman Kennard as a chair? MR. ARMSTRONG: Well, we had been very, very fond of him, working with him as the General Counsel. I remember that the general counsel who succeeded him, Chris Wright, dealt with Bill Kennard once he became the Chairman, a good bit more than I did. I didn’t deal with him on a personal level nearly as much after he became Chairman. The one meeting I do recall occurred after the D.C. Circuit’s decision in the Lutheran Church case which struck down longstanding rules dealing not with ownership, but instead simply with the employment of minorities at broadcast stations. The rules had been around for a good while, and they were challenged in an adjudicatory proceeding involving a broadcast station of the Lutheran Church. At the outset, our office saw this as a case in which the real question was whether the rules were being applied in a manner that abridged the free exercise rights of the Lutheran Church. And we didn’t see it as a case in which the facial validity of the rules would be called into play. But the D.C. Circuit reached that issue and struck down the rules. The day of the panel’s decision was a difficult one. It was the only time in which I was in the presence of Bill Kennard when he seemed visibly upset and not the very even-keel person I had always seen. He wasn’t directing anything at me personally, but I had been the Commission’s lawyer who had unsuccessfully argued the case and had not been able to prevent what from an institutional perspective was a very bad result whereby an important set of rules had been invalidated, not in a rulemaking proceeding where all interested parties had a chance to participate, but in an adjudicatory proceeding. The elimination of the EEO rules in this manner blindsided, I think, the Chairman and regardless of how their demise might occur, whether via a rulemaking or an adjudication, the -146- end of the EEO rules was very disturbing to the Chairman’s friends in the minority community who were putting a lot of pressure on him to fight for these rules. It was uncomfortable watching him trying to deal with this decision. We tried to get the D.C. Circuit to grant rehearing and give the Lutheran Church its license, but base that action on free exercise grounds which in our view would have left for another day the broader issue of the facial validity of the rules. One or two judges on our petition for rehearing en banc appeared sympathetic to our position, but our petition failed. MR. SHELDON: And did you view Chairman Kennard as a chairman with a solid policy preference like some of the previous chairmen? MR. ARMSTRONG: My recollection is that he in particular wished to allow the lowpower radio stations – he wanted to introduce additional low-power stations. He thought this could be done without creating interference with established radio stations. And this was one area in which he was generally – he was not of a confrontational temperament – and I think that even people who didn’t necessarily share his political views liked him very much as a person. The one proceeding that I remember bringing out an edge in him, creating some difficulty in his relations with the established broadcast industry was this proceeding in which he was trying to increase the number of low-power radio stations. MR. SHELDON: Who followed Chairman Kennard? MR. ARMSTRONG: Chairman Kennard left when the Clinton administration ended and that’s when Commissioner Michael Powell, who had served as a Republican member of the Commission for several years, became the Chairman. That is also another time when an attorney who had once been a member of the Litigation Division became the General Counsel. This was Jane Mago who, as a member of the Litigation Division, had been my strong right arm in trying -147- to manage the Litigation Division. Jane served as the General Counsel for about two years. And then John Rogovin, who had come over from O’Melveny and was the Deputy General Counsel during Jane’s tenure, became the General Counsel when Jane became the head of another office at the Commission. MR. SHELDON: The Powell chairmanship – Powell was appointed at the beginning of the Bush term? MR. ARMSTRONG: Yes. MR. SHELDON: Was he still Commissioner when you left? MR. ARMSTRONG: No. He, Commissioner Powell left in the early part of the second Bush term, and he was succeeded by Chairman Martin. John Rogovin left also at this time and for a brief period Austin Schlick, who had been John’s Deputy, remained and served as the Acting General Counsel. Matthew Berry then served as Chairman Martin’s General Counsel. When the Obama administration arrived, Julius Genachowski became the Chairman and Austin Schlick returned as General Counsel and was in that position at the time I retired. MR. SHELDON: What are your thoughts on Chairmen Powell, Martin and Genachowski? MR. ARMSTRONG: Chairman Genachowski had been an attorney in the General Counsel’s office during the Reed Hundt Chairmanship, so I had known him before he became Chairman. Didn’t deal with him on a personal level after he returned as Chairman, but had enjoyed a friendly relationship with him during his earlier time at the Commission. Also didn’t have much direct contact with either Chairman Powell or Chairman Martin. The one meeting I had in the Chairman’s Office during their tenures occurred before the oral argument in the NextWave case which would subsequently be a very difficult and unhappy experience I had in -148- the D.C. Circuit. But on the afternoon before the argument, I got to come to Chairman Powell’s Office where he gave me essentially a pep talk. Chairman Martin and I had something in common in that we each graduated from the University of North Carolina at Chapel Hill and Harvard Law School. He also got a graduate degree from Duke, and that is something I don’t have. Because of our ties to North Carolina, we had something to talk about when we encountered each other. And those conversations were always pleasant, but I was not in his inner circle and didn’t deal with him on a business level. I mentioned earlier the problems at the staff level during the Sikes’s chairmanship when the Chairman and a Commissioner from his party, Commissioner Marshall, disagreed about whether to repeal the financial interest and syndication rules. A similar situation occurred between Chairman Powell and then Commissioner Martin in the proceeding on opening competition under the ’96 Telecommunication Act in the local exchange telephone market. MR. SHELDON: So, we’ve now discussed, by my count, at least twelve different Chairmen that you served under. Did you ever think about leaving the FCC during your time there, from the late 70’s up through when you left in 2011? MR. ARMSTRONG: We talked earlier about my promise to Chairman Wiley when I got my job to stay there only until January 1977. It turned out that I liked what I was doing. Didn’t have the financially motivated reason to seek a more lucrative paying position. Very much liked the people I was working with. Also had some personal reasons to stay. My mother died in Tennessee very suddenly of a heart attack in the summer of 1977, about two years into my time as Chief of the Litigation Division. My father had been diagnosed several years before my mother’s death with Parkinson’s Disease. He was still active when she died and remained so for about another eight years, thanks to the medicine. My brother was working in Utah during this -149- time. I don’t think either of us realized the problems our father would have when his Parkinson’s medicines would lose their effectiveness. But all along in the back of my mind was the thought that the day might come when my father would require a lot of attention during his declining years. He was 400 miles away and I thought it would be easier for me to wear two hats if I didn’t try to have a dramatic move on the job front. That intuition served me well because when our father did ultimately reach the point where he became bedridden for the last five years of his life, that required a lot of travel back and forth to Tennessee and it was just so much easier to juggle that, fit that into your work schedule when you were a Division Chief and you had a loyal staff you had worked with for a long time. I could take three-day weekends a lot easier and get away with it. So, I think it was the combination of all those things I’ve been talking about that just led me to stay there. MR. SHELDON: Did you ever get a sense that any of the Commissioners wanted you out so they could replace you with one of their own men? MR. ARMSTRONG: They were – I certainly would expect that, even though I was in a position that was protected, it was not a political position where a new Chairman had a right to put his person in the position. You can’t be naïve. With the exception of Chairman Wiley, who was the one Chairman that had personally placed me where I was, you have to know that every – I was fortunate enough to be in a position with enough responsibility that if an opportunity had come to any of the succeeding Chairmen, and their General Counsels to put a person that they knew on a close basis where I was, they, just as I’m sure Chairman Wiley was very glad that he had the opportunity to name someone to my position, I’m sure any of the members of both parties would have welcomed the chance to do so, if they could. But they obviously, they knew that this was not a political position, in the sense that they could view that as a right, and they -150- were always very supportive and very cordial. Now sometimes, obviously, you could work around me in that if you appointed someone to be the General Counsel or the Deputy General Counsel, who was personally close with you, I’m in a chain of command within the GC’s office. And how the chain of command works can very much be a function of how the General Counsel and the Deputy General Counsel want it to work. And so, if there was particularly sensitive litigation, from a policy perspective, I assumed, and usually I think I assumed correctly, that those were going to be cases probably where at the end of the day, the control of the decisions about how the case was to be handled on judicial review rested with my superior. MR. SHELDON: Did you ever feel that you were intentionally being kept out of the loop because of perceived policy differences? MR. ARMSTRONG: Well, obviously the proceeding during Chairman Ferris’s tenure concerning the renewal expectancy policy that we talked about earlier is one where I realized that the Chairman disagreed with my recommendation. I don’t remember that there was much occasion after the panel’s action on rehearing for anything further to happen on that issue. But if there had been, I certainly would not have expected to be welcomed at any high-level discussion of the renewal expectancy policy. And I expected there would be other sensitive matters where the Chairman’s inner circle would prefer to keep their counsel to themselves without inviting input from me. There were many other times in which the General Counsel, just as a matter of office routine, dealt with the Chairman without involving the staff. I mentioned the practice, when Diane Killory was the General Counsel under Chairman Patrick, of Diane frequently taking her staff with her to meetings in the Chairman’s Office to discuss agenda matters. For me at least, that was atypical. There were some meetings with Chairman Fowler and Chairman Quello where I was present. But the other Chairmen from both parties, they generally dealt with -151- their General Counsels who then would work directly with me if anything came from those meetings that pertained to my responsibilities. MR. SHELDON: Now, I understand that there came a time when there was some conflict between the FCC and with the Department of Justice on antitrust issues. MR. ARMSTRONG: Most of the disagreements with the Department of Justice with which I was involved came early on in my tenure. I’m not talking about a situation where, in the course of writing a brief in which the Justice Department were representing the United States which was also a respondent. We would have back and forth with our colleagues in the appellate division about how to write the brief, and whether or not we could write it in such a way that would persuade the department to support our position. I’m not talking about those bread and butter discussions which usually resulted in a solution that was satisfactory to both parties. I’m talking about the areas where there was a policy disagreement which had surfaced before the case ever was decided by the Commission and about which the Department felt strongly, and thus the disagreement carried over into the litigation. There were several of those disagreements. The one that occurred most recently, to my memory, was the Metro Broadcasting case. The Civil Rights Division under the first President Bush’s administration, was not supportive of the Commission’s minority ownership policy, and the Commission, with the permission of the Solicitor General’s Office, proceeded on its own after the Supreme Court took the case. Another major disagreement concerned the extent to which divestiture would be ordered in the newspaper/broadcast cross-ownership proceeding. Another one concerned the extent to which the Commission would restrain the pay cable industry in the interest of trying to ensure that the over-the-air broadcasting industry was able to obtain the programming rights to show very popular feature films and sports events. The so-called pay cable anti-siphoning rules, which -152- ultimately culminated in the Home Box Office decision. And then the proceeding that we talked about, I believe in one of the earlier sessions, in which the Commission was asked by some to use its powers under the Clayton Act to hold an evidentiary hearing looking towards a possible denial of the joint venture between Comsat and IBM to have a domestic satellite operation that could compete with AT&T. On those three – the one adjudicatory proceeding and the two rulemaking proceedings, the Department – and it was well known that the Department felt this way from the beginning – the Department had a position that was different from the position the Commission ultimately took. In the two rulemaking proceedings, the Respondent United States supported the Petitioner at the D.C. Circuit, and in the licensing case on the domestic satellite venture, the United States was the appellant. The en banc decision of the Court in that case was the United States v. FCC. MR. SHELDON: Did the FCC ever feel any pressure from the White House on any of these issues? MR. ARMSTRONG: We talked earlier about a case concerning the repeal of the financial interest and syndication rules. That highly publicized proceeding is the only one I know of, in which a Chairman of the Commission and his Chief of Staff were directly called to the White House for a meeting. The Hollywood Studios strongly supported those rules. During the first term of the Reagan administration, Chairman Fowler started a proceeding that would not conclude for a decade. There was a very strong recommended decision to repeal these rules, and that became a matter of public record. This recommended decision would later be used very effectively against us when we were before Judge Posner and the Seventh Circuit defending the Commission’s refusal to years later adopt the recommended decision. There is a likely explanation for the failure of the recommended decision to go anywhere during the remainder of -153- Chairman Fowler’s tenure. At the behest, no doubt, of the Motion Picture Association of America, and their lobbyist, Jack Valenti, President Reagan was asked to intervene personally – or at least, to express some interest in trying to get educated about it. But in any event, there was a meeting involving the President at the White House, which was attended by Chairman Fowler, I think, and his Chief of Staff. And the subject was the proceeding concerning the financial interest and syndication rules. That’s the only one I know of. Now, I have no doubt that the Chairman’s Office and the White House communicated on many, many other matters; but that’s the only one that – but that was the most high-profile one of which I am aware. MR. SHELDON: Now tell me about your experience with Congress. I understand you were called for questioning once. MR. ARMSTRONG: We talked earlier about Chairman Ferris’s decision on the RKO renewal applications. That decision became the subject of a D.C. Circuit case. The New York Station was one of the stations that the Commission initially sought to take away from RKO. The D.C. Circuit upheld the decision taking away Boston, but sent back New York and Los Angeles for further proceedings. During the further proceedings on the New York license, Congress passed the so-called Bradley Bill, Senator Bradley of New Jersey being the proponent. New Jersey did not have an operating commercial VHF television station. The RKO station that was the subject of the litigation concerned a VHF television station, Channel 9, licensed to New York City. At Senator Bradley’s behest, a statute was passed which, on its face, said only that if there is any VHF television station that is willing to relocate its station to a site – to a city in New Jersey, the Commission shall accept that offer and grant that station a license. Read literally, that statute allowed RKO, as the licensee of Channel 9 in New York City, in the middle of a proceeding contesting its right to continue as the licensee of Channel 9, to come to the -154- commission and say, we offer to change our license community to Secaucus, New Jersey. That will now become our city of license, instead of New York City. They could keep their transmitter on the World Trade – it was either the Empire State Building or the World Trade Center in New York. As an engineering matter, that transmitter would satisfy all of the engineering requirements which a television station in Secaucus, New Jersey, would be required to satisfy. So they didn’t have to move their transmitter. They had to change their city of license. And the benefit for RKO was that it cut off the head of the competing applicant, which was trying to become the licensee. So, not surprisingly, RKO sought to do that, and the competing applicant ultimately tried to challenge the Bradley Bill, before the D.C. Circuit and was not successful. But very shortly after it was known that RKO was going to attempt to avail itself of the new statute, there was an oversight hearing before the House Telecommunications Subcommittee chaired by Representative Tim Wirth – later Senator Wirth – from Colorado. Prior to this experience, I don’t think I ever went to an oversight hearing that concerned the relationship between the commission and Congress, because my concern was the relationship between the commission and the courts. But for some reason, on the morning of this particular hearing, either I had gotten to my office, or I was out on the sidewalk entering the building, and there were a group of people who were getting in the car to go up to the hill for the oversight hearing, and I was persuaded to join the group. It may very well be, in fairness to Chairman Fowler, that something was said to me about, we’d like you to go because we think there may be a question raised in this hearing this morning about RKO’s efforts to move to New Jersey and there will be some concern with the litigation. Memory’s hazy, but that may have happened. But in any event, I certainly didn’t think that much of it, and I was seated a number of rows back of the Chairman when he was testifying, and he got a question from Chairman Wirth – someone -155- had obviously bent his ear and had persuaded him that this really seemed strikingly unfair to interrupt an ongoing licensing proceeding and let RKO escape by the simple expedient of changing its studio license to New Jersey – Mr. Wirth’s question came in an accusatory tone of voice to Chairman Fowler. Chairman Fowler had a good answer, I think, in that he could say – Mr. Chairman I didn’t pass this statute; I’m simply administering a statute which the Congress passed. But in any event, Chairman Fowler didn’t want to answer the question and instead of turning to his Chief of Staff or his General Counsel, he said, Mr. Chairman, I think that my litigator is here, I think I’ll let him answer your question, so I had to go up from several rows back to the witness table. MR. SHELDON: Did you have to get sworn in? MR. ARMSTRONG: I don’t think Chairman Wirth asked me to be sworn in. I think he just was content to see if some poor soul in the room could give him a further background on the litigation and how it related to RKO’s attempt to rely on the Bradley Bill. I don’t recall that I was able to do anything to satisfy Chairman Wirth, but at least he mercifully let me go after about two or three minutes, stammering away. MR. SHELDON: What was a more intimidating experience, appearing before the D.C. Circuit or appearing before Congress? MR. ARMSTRONG: Oh, I would certainly say that it would have been that moment with Congress had I been premeditating about it, had I known about it the night before. If you compared my reaction to that anticipated event with my reaction to appearing before the D.C. Circuit, it would have been no contest because I rarely was really nervous in that I couldn’t eat or sleep when I would go to the D.C. Circuit. Most of the time I would know in advance when we had a hard case and what trouble to expect from the D.C. Circuit, and could chart a course for -156- better or worse. When I would really feel like I was blindsided at the argument and just really wasn’t as prepared as I wished I could have been, this of course happened right at the argument, and there weren’t too many of these situations. MR. SHELDON: Let’s talk for a little while about some of your appearances before the D.C. Circuit Court of Appeals. Are there any particularly memorable appearances that pop to the front of your mind? MR. ARMSTRONG: Well, there’ve been a lot of them. I didn’t have as many as John Ingle, whose career at the Commission almost paralleled mine. John did – he was ostensibly my deputy, but we divided up the work. He did most of the common carrier cases, and I did the broadcast and the cable cases. My most memorable experiences on the unhappy side usually occurred when an adverse opinion came out and not when the case was argued; the argument hadn’t prepared us for what was in the opinion. That certainly happened in the Home Box Office case, which was the pay cable case. And that certainly happened, I think, in the Daytona Beach licensing case that we talked about earlier. MR. SHELDON: What was the count that you were just about to reference? MR. ARMSTRONG: You know, I will probably have to double check that again. I think it was between 50 and 60. But I believe that’s what it was. I think it’s probably about 50 in the D.C. Circuit, maybe another 15 in other circuits. MR. SHELDON: Were there any arguments where you remember getting particularly good tongue lashings? MR. ARMSTRONG: The one that was really, really difficult to take, and it just goes to show how you sometimes can prepare as much as possible, and you still get thrown off stride at the argument, and you wonder if you had been able to handle a question better, you could have -157- avoided what happened. I will come in a minute to a case where what seemed a bad argument nevertheless had a happy ending. I will first give the example that did not. The NextWave case was a situation in which a radio licensee, who was paying for its license, had won it at an auction. They were paying for it on the installment plan. They did not meet one of their installment payments when it became due. There was a regulatory condition on the license that if the licensee didn’t fully and timely pay its installments, its license would automatically cancel. That happened to NextWave. There was vigorous litigation, first in the bankruptcy court, and in the Southern District of New York, and in the Second Circuit. And NextWave was trying to basically have the bankruptcy law trump the licensing law under the Communications Act. The Commission prevailed, or at least we thought we prevailed, in the Second Circuit. NextWave still had an opportunity, even if the bankruptcy law did not guarantee that they could keep their licenses, they still had an opportunity in a licensing proceeding at the Commission to argue for a waiver of the Commission’s automatic cancellation rule. If that was denied, they could have a licensing appeal, which exclusively had to go to the D.C. Circuit. When NextWave finally got an appeal before the D.C. Circuit, the case was set for argument in the early days of Michael Powell’s chairmanship and with a recent change of General Counsels, I was left with the oral argument. Never in my experience was I ever subjected to more pre-argument moot courts and other meetings in which I got input from private parties, attorneys from the Justice Department and my own agency. We were trying very hard to ensure that the bankruptcy code as a matter of substantive law was never intended to alter the Commission’s authority under the public interest standard of the Communications to enforce the automatic cancellation regulatory condition. Although its opinions could be read differently, the Second Circuit on our reading of its decisions had already accepted our position on the relationship between bankruptcy law and the -158- public interest radio licensing regime. Judge Tatel was on the panel, and it was obvious early on that he was not inclined to read the Second Circuit’s decisions as we did. And he also was sympathetic with NextWave’s argument that the Bankruptcy Code was dispositive in NextWave’s favor. He hit me near the beginning of my argument with a question about whether the Commission had taken a lien on NextWave’s licenses. With all of the preparation that had gone into that argument, I don’t recall that the existence of a lien ever came up, and I was not prepared to answer Judge Tatel’s question. I fumbled it badly. When the panel rejected our reading of what the Second Circuit had done and then went on to uphold NextWave’s argument under the Bankruptcy Code, I experienced one of my greatest disappointments because this was a case involving a lot of money, the issue was about as fundamental as a lawyer who had spent nearly his entire career working with the licensing regime under the Communications Act could imagine and under my understanding of what the Second Circuit intended in its concededly ambiguous decisions, this was a case where a substantive victory for our side in the Second Circuit was taken back. I have asked myself on more than one occasion whether a better performance by me in response to Judge Tatel’s question about the lien might have improved our chance to persuade the D.C. Circuit with our threshold argument that NextWave’s substantive arguments under the Bankruptcy Code had already been adjudicated and rejected by the Second Circuit. There was a case on the syndicated exclusivity rules. I have forgotten exactly what the facts were, United Video was the petitioner – I will stop trying to recite all the facts, but I remember at the oral argument, Judge Edwards in particular, he was on the panel, and he was – I didn’t always experience this so-called Judge Edwards treatment, but this is one time where I did. He seemed to be very, very – his tone of voice was very difficult, sort of incredulous. He -159- didn’t appear to accept the Commission’s position I was arguing, and so we were almost certain at the end of the argument that this didn’t go well. This was one of those cases where there was a – stay motion was pending at the time of the oral argument on the merits, and had not been decided. I believe it was the next day after the argument that we got a call late in the afternoon advising that the Court had issued a one-line order denying the Motion for Stay. And the attorney in my division, Grey Pash, who worked on the case with me, we both looked at each other, wondering how this could possibly be given what happened that day before at the argument. If they denied the stay motion, that has to suggest that our position on the merits is going to be upheld. And a couple of months later, we got the opinion on the merits, and we did win with a unanimous panel decision. MR. SHELDON: Were there any cases where you felt maybe the oral argument may have turned the tide and added something beyond just the briefing? MR. ARMSTRONG: Very rarely, and I would – I don’t specifically now remember any case where I honestly think that it may have turned the tide, I think we might at some times, if we were able to build some credibility with the court, or build on an existing relationship of credibility with the court. There may have been times when this was helpful in getting the court to take our argument seriously, and perhaps no going down a path that it might otherwise have followed. But I would be hard pressed to think of any case where I really felt like we were losing going in, and we were winning coming out. MR. SHELDON: During your 30 plus years at the FCC, who on the D.C. Circuit, what judges had the reputation for being the toughest questioners? MR. ARMSTRONG: I mentioned Judge Edwards a minute ago. I think he certainly had a reputation for being very, very difficult. Judge Silberman, on the more conservative side had -160- that reputation. Judge Wald could be tough, but her temperament was different and she had a less confrontational tone than was sometimes displayed by some others. Her questions were very perceptive and very fair. Same with Judge, now Justice, Ginsburg. I should also add, even though he didn’t do it to me perhaps for personal reasons, my personal friend from Carolina, Judge Sentelle, could be very tough on counsel when he was not sympathetic with counsel’s position. MR. SHELDON: What was the FCC’s view of the D.C. Circuit over the years, as friend or foe? MR. ARMSTRONG: Well they were, we certainly respected them because of their interest in and knowledge of the subject matter of our litigation. You knew that if you were in the D.C. Circuit, you were at least going to be before judges who cared about your work and who were prepared for the argument. Occasionally, I think it’s fair to say that if you got a Circuit other than the D.C. Circuit, you sometimes would feel that you are swimming upstream when you’re having a very difficult time possibly because the judges just don’t quite have the background that is helpful in enabling them to appreciate what’s going on. You never felt that way in the D.C. Circuit. My first exposure to the D.C. Circuit came at a time in which there were some very contentious policy issues on the table. In the ‘70s, we saw the concern at the D.C. Circuit, or at least some members of the D.C. Circuit, Chief Judge Bazelon, in particular, that the Commission was allowing too much concentration of ownership, and the Commission needed to become more restrictive in that area in the interest of diversifying the ownership of stations. There was concern that surfaced in the Home Box Office case that the Commission’s procedures were too susceptible to lobbying outside the record of rulemaking proceedings and ending up in results that were probably too sympathetic to the industry that was doing the -161- lobbying. There was the disagreement in particular with Judge McGowan from Chicago on whether or not the Commission had a responsibility to regulate entertainment format changes. So you had a number of these big proceedings in which the D.C. Circuit seemed to be pulling in one direction and the Commission in another. Oh then there was also the Execunet proceeding in which – I wasn’t directly involved in this one because it was common carrier, but that was a very contentious proceeding concerning the introduction of competition into the long-distance telephone business coming principally from MCI, which was attempting to become a player competing with AT&T. The Commission believed that under the previous orders that MCI was relying upon, the Commission had not allowed the result which MCI aggressively came to seek in the ExuNet litigation. Judge Wright, in particular, had some very strong language directed at the Commission for resisting MCI’s efforts. He was joined by, I remember a panel of judges across the ideological divide. We had a string of these difficult decisions, and when we finally did get a favorable decision from the Supreme Court in ’78 in the newspaper/broadcast crossownership case on the divestiture issue, I remember the satisfaction we got in finally prevailing after a string of defeats at the D.C. Circuit. The longer I was at the Commission I could at least begin to see the arguments for the other side better than I did in the heat of battle, for example, in the Home Box Office case. MR. SHELDON: Now, during your career at the FCC, you worked with and mentored a number of attorneys who went on to have illustrious careers themselves. Who do you view as kind of some of the keenest minds that you worked with? MR. ARMSTRONG: Well, a great number of the people that were in my Division, you know, stayed for a long time, if not the duration, in my Division, so they continued to impress me with their work at the Commission. I had at least three people whom I tutored and who -162- worked under me, who later became my boss as the General Counsel of the Commission. One of those three was Stephen Sharp, and he later became – he was the Commissioner that had the short, one-year term on the Commission that I mentioned earlier. In seeing my subordinates do well on the political chain, this development was obviously a source of pride. The other two, I’ve mentioned Steve Sharp, the other two were Jane Mago, of whom I’m enormously proud, she later went on to the – she is now the General Counsel for the National Association of Broadcasters. Very proud of her because she was enormously valuable to me. Jack Smith was the other one who had been under me and later became my boss. He later went on to a very distinguished career at the Federal Deposit Insurance Corporation. He’s retired from that position, and I haven’t talked to him in about the last year or so, but I think he’s been very active in trying to curb some of the international financial transactions that arouse concern. Very proud of him. I also associated in the General Counsel’s Office with other outstanding litigators, who were not my subordinates. Chris Wright is one good example. MR. SHELDON: Who do you think you learned the most from, and who would you want to be compared to in your own legal career? MR. ARMSTRONG: We talked in the earlier sessions about how I, having been as green as I was behind the ears when I first found myself in my position, I was more than happy to be mentored by some members of the private bar. The two that I really remember immediately would be Roger Wollenberg, the late Roger Wollenberg, who was at Wilmer, and the late Ernie Jennes, who was at Covington. Ernie Jennes was my mentor in trying to defend the Commission’s limited divestiture rules first at the D.C. Circuit and then at the Supreme Court, after the D.C. Circuit ordered divestiture across the board. The Supreme Court argument was in January, and Ernie was, I believe, at a meeting of one of his clients in Hawaii, so he wasn’t at the -163- argument. Ultimately, the decision came down, and our position was upheld in the opinion, which made both Ernie and me very happy. But I was also happy after the argument that Ernie had not been there because I didn’t think I had spent enough time at the argument on the points that I knew Ernie believed required the greatest attention. Had he been there, I thought I probably would have gotten some criticism from him after that argument. I worked on many cases, up to and including the Metro case in the Supreme Court with Roger Wollenberg. The attorneys at Wilmer were also terrific attorneys, Tim Dyk, who’s now on the Federal Circuit, Joel Rosenbloom taught me a great deal about litigating FCC cases. I know that I’m going to leave somebody out once I start trying to do this exercise, but I certainly think of them. I had a very excellent relationship with and thought very highly of Larry Wallace in the Solicitor General’s office. He was our point person on FCC matters in the Supreme Court, and he would frequently give me advice from the valuable perspective of someone who argued as much as he did in the Supreme Court. MR. SHELDON: When was your last argument before the D.C. Circuit? MR. ARMSTRONG: I think it was in early – let’s see, I retired at the end of 2010. I think my last argument was nearly two years before that. It was spring of 2009, I believe. And it was, if I remember correctly, it was a relatively low-profile case involving a radio station in Arizona. I don’t even specifically remember the facts, but it was certainly not one of my higher profile cases I was involved with. MR. SHELDON: Did you know, did you have any inkling at the time that it would be your last? MR. ARMSTRONG: No, I did not, I did not know that it would be the last one that I would have there, in my position as Chief of the Division. I knew that there didn’t seem – in the -164- first place, the sheer volume of cases that we had been getting in recent years was not as great, so there were not as many from which to pick. I had always been somewhat reluctant to take a case that somebody else had briefed, so if I had an attorney that I was supervising on the brief, I had a presumption that I would not try to take the case away from that attorney if the attorney wanted to argue, as they usually did. The ones that would have been candidates for somebody else to argue, I think, in my later years at the Commission, we began to have other people in the front office of the General Counsel’s Office who took an interest in litigation, and frequently liked to argue those cases, so figured that there’s an increasing likelihood that if it’s a case that might be a candidate to be taken away from the attorney who is the front-line draftsman, odds are probably pretty good that they go to somebody above me on the chain. I certainly had the sense that I wasn’t going to be arguing probably as many cases as I once did. But I didn’t absolutely know at the time at that last argument, which I’m happy to say ultimately resulted in a victory, at least I went out on a winning note. Never did bother to count up all the other cases to see how many of them were wins and how many of them were loses. MR. SHELDON: Well, on that winning note, I’ll conclude our session for the day. Thank you very much for joining me. MR. ARMSTRONG: Yes, sir.