Daniel Armstrong Second Interview: April 19, 2012

-73- ORAL HISTORY OF DANIEL “MACK” ARMSTRONG Second Interview – April 19, 2012 This interview is being conducted on behalf of the Oral History Project of 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 the Law Offices of Goodwin Procter on April 19, 2012. This is the second interview. MATTHEW SHELDON: Mr. Armstrong, thank you for doing this. When we last left off, we were talking about your transition over to the Federal Communications Commission, and I was wondering if you could recap for us how that came about. MR. ARMSTRONG: When I was preparing to leave the Bureau, one of the – I wasn’t sure what I was going to do – one of the staff people at the Bureau in the last few months – I was there with a fellow named Chuck Lichenstein. He was – he came over on a detail from the FCC where he was a top advisor to Chairman Burch. I spoke with him about the possibility of going to the FCC, and he very kindly arranged an interview for me with the General Counsel of the Commission and that led to my accepting an offer to go there. I left the Bureau in May of ’73, and I began working at the Commission in July. MATTHEW SHELDON: Who was the General Counsel at the time? MR. ARMSTRONG: Jack Pettit. MATTHEW SHELDON: And was that the only interview you had to do? MR. ARMSTRONG: I talked to Jack, and he had an interest in me because having worked in the U.S. Attorney’s office, and then having worked in the Bureau. I certainly struck him as a person with a prosecutorial background, and he was under some pressure within the Commission to get somebody that could oversee enforcement of the Citizens Band Radio procedures. That was a huge problem for the Commission, and the engineers in the field who -74- were responsible for enforcing the Citizens Band regulations were complaining to the General Counsel that they were not getting enough support from the GC’s office. So, when I had my interview with Jack, he said he thought I could fill a real need in the office in working with the engineers. He then asked me to, after we finished that interview, to have an interview with then Commissioner, later Chairman, Dick Wiley. So, I did have an interview with Jack Pettit, and I had an interview with Commissioner Wiley. MATTHEW SHELDON: And coming over at the time you did, from where you did, were there any questions about Watergate, or any of the Bureau’s activities in the interview? MR. ARMSTRONG: Well, ironically, my very first day at the FCC happened to be the same day that the disclosure went public, that there were tapes in the White House. So, a former exciting year, inescapably carried over, but if Jack or Commissioner Wiley or anybody else said, “hey he’s damaged goods, we better be careful about him” they didn’t tell me about it. MATTHEW SHELDON: What were your impressions of the Commissioner when you met with him? MR. ARMSTRONG: My impressions were such that I’m not at all surprised with his subsequent success, first as Chairman and then as the senior partner in a very successful law firm. I’m not at all surprised. He struck me as a go-getter, magnificent in knowing peoples’ names, never forgetting – he didn’t seem to ever forget a name that he met, just that we had a little bit of a personal connection. His wife was from eastern Tennessee not too far away from the county and town in which I grew up down there, but we seemed to hit it off very well. He impressed me. MATTHEW SHELDON: Tell me a little bit more about Citizens Band radio that was an issue at the time. What was the background on that? -75- MR. ARMSTRONG: It was used a great deal if I remember correctly. It’s now obsolete, I think but it was used a lot by truckers, and there was a detailed regulatory scheme, and I don’t remember all of the specifics of the violations but there were a great number. I think in the area of unlicensed operation, and we had what we call Part 15 devices at the FCC and those devices, like a power opener for your garage, it’s a small power you were allowed to do without a license. The Citizens Band people were transmitting in excess of the power permitted for unlicensed operation, and so the big problem was that they were violating the rules – they weren’t getting a license. MATTHEW SHELDON: Is that where CB radio comes from? MR. ARMSTRONG: Yes. MATTHEW SHELDON: What was your first position? MR. ARMSTRONG: I was placed in the division where I would come to spend most of my time at the FCC, the litigation division of the office of General Counsel, and I had two-fold duties and was wearing two hats: one was – I would spend time working with the enforcement bureau on the CB radio violations and that mainly would involve either an administrative sanction or in the really serious cases, working with an Assistant U.S. Attorney out in the field to bring either a Civil Injunctive proceeding to cease the unlawful operation or criminal prosecution in a really serious case. The other hat I wore in the litigation division; the then Chief of the Division, Joe Marino, would assign me an FCC case that was in the Court of Appeals, and as a staff attorney, I would brief and usually argue it. Sometimes the person who wrote the brief was not given the argument but that was the idea. MATTHEW SHELDON: Was this your first experience with the Appellate Court process? -76- MR. ARMSTRONG: No. When I was an Assistant U.S. Attorney in the Eastern District of New York, most of the work there was in the trial court, but some of the assistants expressed the desire to go to Second Circuit when a case, in which they had been involved, later became the subject of an appeal. So, I had had some experience arguing before the Second Circuit when I was in the U.S. Attorney’s office. MATTHEW SHELDON: Can you give us a flavor of what it was like arriving at the Federal Communications Commission in 1973? MR. ARMSTRONG: We were located at 20th and M Street, which is where we stayed until the end of ’98. So for the first twenty five years that’s where I worked. The agency was not completely headquartered in that one building. That later became one of the reasons the argument was made that we should move to the Portals building where the agency is now. The General Counsel’s office – the litigation division we had – I believe there were six attorneys. I became one of six – there might have been seven or eight, but it was a small group of attorneys – there was an administrative law division in the General Counsel’s office which basically did the in-house work, advising the Commissioners, advising the general counsel on matters that were not yet decided by the Commission, which would ultimately be decided by the Commission, and when they were decided by the Commission, responsibility would shift to the litigation division. (Start of 2nd Audio File) MATTHEW SHELDON: And what was your office like there? MR. ARMSTRONG: Sixth floor, the Commissioners were on the 8th floor, General Counsel’s office was on the 6th floor, the library was on the 6th floor, and I had a small office, certainly adequate, but I wouldn’t say was spacious, but it faced down M street, the corner of 20th and M. -77- MATTHEW SHELDON: And what was the overall structure of the FCC at the time? I assume there were the Commissioners at the top and various bureaucracy underneath, but how did it divide out? MR. ARMSTRONG: At that time, there were 7 Commissioners. Their offices were on the 8th floor. There were several operating bureaus. The bureaus have undergone several name changes in the time that I’ve been there, but I believe when I was there, there was what was called the Broadcast Bureau. There was the Common Carrier Bureau. There was a relatively new Cable Bureau, which was in a different building. The Broadcast Bureau was on the 3rd floor, and the Common Carrier Bureau was on the 5th floor. The 7th floor was the Field Operations Bureau, and that’s the Bureau that I was supposed to work with on the CB cases, and they were on the 7th floor. MATTHEW SHELDON: And was there any interaction between the Commissioners themselves and the staff of the FCC, or were they of separated? MR. ARMSTRONG: It would probably…you wouldn’t deal with the Commissioner, unless you went through the General Counsel in the case of a staff person located in the GC’s office. It varied when I was there, depending on how the General Counsel wished to conduct the office. There would be some GC’s, particularly a GC who may have had – we had at least one who had been a legal assistant to a Commissioner before she became the General Counsel, and this Commissioner later became the Chairman. She had a very good relationship with the Chairman. She took her staff people to meetings in the Chairman’s Office, even including people below the level of a division chief. We would go with her when a litigation matter was being discussed with the Chairman. There were other General Counsels who also from time-totime would take staff members in OGC to meet with the Chairman. I might add that when I first -78- went to the FCC, there was no Sunshine Act, and the Commissioners could meet privately, in addition to having their regularly scheduled meeting in the commission meeting room, which was closed to the public. They would also have meetings frequently of a much more informal nature in the Chairman’s Office. It wouldn’t be an official meeting. It would just be a discussion of agency business in the Chairman’s Office, and in some of those meetings where OGC staff were in the chairman’s Office, other Commissioners and their advisers would also be there. Formal meetings occurred about once a week, I think, in my early years at the Commission. MATTHEW SHELDON: And would policy objectives of the Commission be developed by the Commissioners and then filter their way back down to the enforcement division through the Office of Legal Counsel? MR. ARMSTRONG: There was always some tension in my time at the Commission between how much the Chairman could operate on his own. I think I can say, at this point, “his,” because we didn’t have any women-Chairman when I was there. We had some women Commissioners. Whether the Chairman had as much power as the Chairman always liked to claim they had…or whether we were truly a collegial body in which a member of the Commission had more say. For the most part, I think you would say the Chairman runs the…he’s the Chief Executive of the agency. He runs the agency. His Bureau Chiefs must be approved by the Commission, but they answer primarily to him. He would develop the agenda in coordination with the Bureau Chiefs who were answerable to him, and then he would share his agenda with the other Commissioners. But frequently, some Chairmen would do a much better job of smoothing the way for important policy by informally discussing the matter with the fellow Commissioners before the staff had really finished and recommended the Order for the -79- Commission. And in those days, it was much easier to do that, because, as I said, we didn’t have a Sunshine Act. The Chairman could call the other six Commissioners into his office and say, “I just had a meeting with the Chief of the Broadcast Bureau and I’ve instructed him to prepare the following Order for your consideration.” MATTHEW SHELDON: And were the Commissioners still on staggered terms then? MR. ARMSTRONG: Yes, they were. MATTHEW SHELDON: What was the period of time? MR. ARMSTRONG: I believe they were appointed for at least five, maybe seven, years. Maybe it was one came up every year, so a full term would be a seven-year term. Most of them didn’t always serve that long, but that’s what it’d be. MATTHEW SHELDON: Can you give me an example of a typical enforcement action or what you remember doing first when you were first there? MR. ARMSTRONG: There was an attorney in the Field Operations Bureau. I believe that was the title they had at the time, and she was an attorney. The engineers who were in that Bureau were in field offices throughout the country and would report to her – her name was Sylvia Sternstein – that we got this particularly bad actor who’s doing CB. She would call me up, and we would meet to discuss the report. I believe in the great majority of the cases, we concluded that the appropriate thing would be an administrative proceeding at the agency level that wouldn’t reach a need to discuss the matter with the U.S. Attorney’s Office. In a more egregious case, we would call the U.S. Attorney’s Office in the district where the conduct was occurring and say, “Would you work with our engineers to get a civil injunction?” And as I said a few minutes ago, if it were a really extreme case, we would ask the U.S. Attorney to pursue criminal prosecution. -80- MATTHEW SHELDON: When I hear CB Radio, I think truckers, but are we also talking about kind of hybrid radio stations? MR. ARMSTRONG: My recollection is it was heavily concentrated in truckers, but not exclusively. People would have CBs in their homes. The amateur service was always offended because there was a tendency among lay people, I think sometimes, to assume that the CB and the amateur were the same thing, and the amateurs regarded themselves as having a much higher quality operation. I guess you could say these would be – they didn’t have the standards that the amateur radio service had, but they were using their radios to talk to a lot of people. It was not broadcasting. Pirate radio, which later became a major enforcement problem, did involve broadcasting. MATTHEW SHELDON: And what about the other component of your job? What was your first appellate case? MR. ARMSTRONG: Well, that was a very, very interesting one, given what happened in that case. The first appellate case I got from Joe Marino involved an application for a small radio station in Pennsylvania. And I believe the application was denied because, after a hearing before an administrative law judge, there was an indication that the applicant’s principals had not been forthcoming about the availability of the station’s proposed transmitter site. After an evidentiary hearing before a Hearing Examiner, now called an Administrative Law Judge, an aggrieved party would then file exceptions to the Examiner’s decision with the Review Board, which was an intermediate body of three people. When this Pennsylvania proceeding got to the Review Board, there was a very strong dissent from one of the three members of the Review Board. When Joe Marino gave me the case, and I was writing the brief – the Review Board made its decision, there was the dissent. The Commission – an application for review was filed -81- with the Commission. I believe in my case, the Commission denied the application for review. At that point, the aggrieved party has a final Commission Order that can be appealed. The Review Board’s decision is regarded as the decision of the Commission. The aggrieved party files an appeal with the D.C. Circuit, since it was a radio licensing decision – exclusive jurisdiction was in the D.C. Circuit. You couldn’t take those cases anywhere else. If it’s not in the category of radio licensing decisions that are enumerated in Section 402B of the Communications Act, the Hobbs Act governs, and under the Hobbs Act, a Final Commission Order could be taken to the D.C. Circuit, or it could be taken to the circuit in which the Petitioner resides. MATTHEW SHELDON: And in this case, and other cases regarding the broadcast requirements, is it a Petition for Appeal to the D.C. Circuit, or is it automatic appeal? MR. ARMSTRONG: If it’s in the Hobbs Act, which can include broadcasting requirements, for example, those adopted in a rulemaking, the formal document that is filed, is a Petition for Review. If it is a 402B radio licensing case, the correct document to be filed is a Notice of Appeal, and it is filed within 30 days of the public notice of the Final Commission Order in the D.C. Circuit. One more point—in the Hobbs Act cases, the U.S. is also named as a statutory respondent. Those cases are Matt Sheldon v. FCC and the United States of America, Petitioner v. Respondents. If it’s a 402B case, it’s Matt Sheldon v. Federal Communications Commission, Appellant v. Appellee. MATTHEW SHELDON: And what was the name of this case, do you remember? MR. ARMSTRONG: Lebanon Valley was the station, or the applicant who was the appellant. And the case is interesting, as I indicated to you earlier, because when I was writing the brief – when I had conversations with Joe Marino, the Division Chief – frankly, I was -82- troubled by the dissent on the Review Board. I didn’t really think the majority opinion had dealt effectively with the points that were raised in the dissent. The Appellant’s lawyer, however, really didn’t make the dissent the focus of his brief, and he didn’t make it the focus of his argument. And he didn’t seem to be scoring any points. The Court did not—with the argument when he was up there—itself get into the Dissent. It was really obvious – Judge Tamm was the judge who was presiding – it was really obvious when the Appellant finished his argument that Judge Tamm wasn’t particularly interested in hearing from me. It was my first argument as a Commission attorney, and so I got the cue that he didn’t really want me to say very much. But I took 30 seconds. I got up, took 30 seconds and said, “If there are no further questions, we’ll rest on our brief.” And there were no further questions. When I got back to the office, my mentor said, “You really probably shouldn’t have gotten up at all. You talked 30 seconds too long. It’s pretty obvious the Court is comfortable in not hearing from you.” When the decision came down, we lost, and the opinion that was written for the court practically tracked the Dissent on the Review Board at the Commission. So, you know, you don’t know what happened; but my guess is that probably after the argument, because I think they would have questions about the Dissent if they really had been focusing on it at the time of the argument. But you know, my supposition is that a clerk, after the argument, wrote an opinion that focused on the dissent, and the Court found it persuasive, so we lost. MATTHEW SHELDON: And what do you recall about your first time appearing before the Court? MR. ARMSTRONG: Well, we didn’t have in those days—the practice changed in my years at the Commission—but in those days, we didn’t have a formal moot court. We usually— in those days there would be sometimes a fair amount of time between the completion of the -83- briefing process and the date for the oral argument. The D.C. Circuit I think later tried very much to track the briefing dates to the argument dates, so there wouldn’t be this huge interval. But you could, you may have gone on to a great number of other cases after you finished the brief in Lebanon Valley, before the argument in Lebanon Valley, but before the argument, the reply brief would come in and so you’d get the briefs. And you would have at least a serious informal session with the Division Chief and with some of your colleagues, discussing the case and trying to anticipate the argument. I don’t remember that everybody in the office was as concerned as I was with the dissent when we prepared for the argument. I didn’t have stage fright because I had argued in the Second Circuit several years before, so I didn’t really have stage fright, and in this case I got through my 30 seconds unscathed at the argument. MATTHEW SHELDON: What was the FCC’s view of the D.C. Circuit at the time, and their relationship with the D.C. Circuit? MR. ARMSTRONG: Well, I landed at the Commission at a very important moment in that relationship. I was thrust right into it from the moment I became the chief of the Litigation Division. But back up for just a minute. I spent about a year as a staff attorney in that Division working on matters like Lebanon Valley. After a year I went for one year over to the Administrative Law Division as the #2 person in that Division for a year. In ’75, I came back to the Litigation Division. Joe Marino was ready to take a different position, and there was a vacancy and by this time, Commissioner Wiley had become Chairman Wiley, so he offered me the position to be the Chief of the Litigation Division. When I say I got thrust into the middle of this tension between the Commission and the D.C. Circuit, I got thrust into it really not when I first went to the Commission in ’73. I got thrust into it when I became Division Chief in ’75. There were two very important—well there were at least two, I should say—policy proceedings -84- going on at that time. One was the issue concerning ownership of broadcast facilities, which later led to the Supreme Court decision in FCC v. NCCB. Another one concerned what the Commission should do when a public-interest group would complain about alleged employment discrimination by radio and television stations. And another one, I’d said at least two – I guess there were really five – three at least, because another one concerned what to do when an outfit like Home Box Office would show movies and sports events that broadcasters wanted to show, and the broadcasters’ argument was “we reach everybody.” They raised the specter that in order to watch baseball games and NFL games someday, viewers might have to subscribe to pay-cable in order to do that. So the broadcasters were asking the Commission to try and restrict the programming that would be siphoned off to pay cable. One more source of tension between the Commission and the D.C. Circuit – radio entertainment format cases. Judge McGowan, in particular, who was a Judge on the Court—a respected Judge on the Court – came from Chicago. There was a proceeding in which the Chicago radio station that broadcast, I believe classical music, was proposing to—the licensee was proposing to sell the station to a new owner, and the new owner was going to change the entertainment format of the station. The new owner was not going to continue to broadcast classical music as its entertainment programming. Judge McGowan and his colleagues on the D.C. Circuit believed that under the Public Interest Standard of the Communications Act, the Commission had the authority to require that the—under certain circumstances—to require that the former programming continue, and it was an abuse of that authority if the Commission deferred to the marketplace, and said, “We’re not going to get involved in it.” There were a number of these entertainment format cases in which the Commission was losing at the D.C. Circuit with some rather strong language from the Court. -85- MATTHEW SHELDON: Were there some Judges on the Circuit that the FCC viewed as favorable generally to their position and other Judges less favorable? MR. ARMSTRONG: Chief Judge Bazelon was the Chief Judge at the time. Judge Wright was a very active and prominent member of the panel who generally voted with Judge Bazelon. There were nine judges on the Court in those days. There were five who were perceived generally and certainly probably at the agency as being in the activist wing of the Court. The other four, who I think happened to have been, with the exception of Judge Tamm, Nixon appointees. And they were perceived as more deferential to the agency and less inclined towards an activist regulatory agenda. That was the perception that existed. Judge Leventhal was for some purposes regarded as one of the five, but he was probably regarded as the one person within the ranks of the five that might be persuaded to support the Commission, as indeed he did, in the Pacifica dispute on broadcast indecency. MATTHEW SHELDON: And going back quickly, you said the Lebanon Valley case—your first time before the court—how did the oral argument go? MR. ARMSTRONG: He had 10 or 15 minutes if I remember correctly. Speaking now about arguments in general, some judges were active at the argument, others less so, and some, just not at all. My recollection of the Lebanon Valley argument is that this was one of those times where the lawyer for the other side was just not making any headway, and the panel, without being particularly interested in what he was saying, nevertheless allowed him to take his 10 or 15 minutes. In my later experience, that was not usually the case. If you had one of the judges who was an active questioner, and it was a case where there was a real issue and the lawyers were engaging on what was the real issue in the case, you could certainly have a real push-back experience. -86- MATTHEW SHELDON: Who had reputations for being the active questioners of the day? MR. ARMSTRONG: I think that’s probably correct. Now Judge Wilkey was one of Nixon’s appointees, and his viewpoint, I think, was certainly somewhat different from the five Democratic, so-called liberal judges, but he was a very active questioner. Judge Wright, however, although regarded as an activist judge, did not always participate actively during oral arguments. Did not, in the Home Box Office case, which was my first major defeat in the D.C. Circuit. A really, really bad defeat in which Judge Wright wrote the opinion. I don’t believe, however, he asked a single question of me at the argument. I also don’t remember that Chief Judge Bazelon was generally a vigorous participant at oral arguments. You know, it’s hard to find a real set rule. MATTHEW SHELDON: First, I guess, did the FCC appeal Lebanon Valley to the Supreme Court? MR. ARMSTRONG: We did not. MATTHEW SHELDON: And was it largely a decision that was focused on this one issue specific to this one radio station? MR. ARMSTRONG: My recollection is that after the decision was made, Lebanon Valley was not a case where we would want to use one of our chips with the Solicitor General’s Office to try to get the Supreme Court to take the case. Nor was it a case where we considered asking the D.C. Circuit to hear the case en banc. That in other cases was a more viable option in my early years than I believe it has been more recently. My recollection is that the Commission probably just ended up granting the application which had been denied. -87- MATTHEW SHELDON: Did this all occur before 1974 when you went over to the ALJ division? MR. ARMSTRONG: I believe that decision – I went to the ALJ division in the autumn of ’74, and I believe we’d already gotten the decision earlier in ‘74. MATTHEW SHELDON: Any other cases of note that you can recall from this time? MR. ARMSTRONG: There was another case called Garrett. It’s a published decision, versus FCC, and that was a case in which – it dealt with minority ownership of radio stations, and that had been another area in which the D.C. Circuit had been prodding the Commission to get more involved, to try to get more minority owners in broadcasting. That policy had begun to develop before I got to the Commission. Initially, the Commission insisted on two requirements in order for an applicant to get special credit for minority status. The applicant first had to be qualified to receive a license. Assuming that requirement was met, but the applicant was in a contest with other qualified applicants, the applicant had to participate in the day-to-day management of the station. The Garrett case, as I now recall the facts, involved an application in which the minority applicant was the only applicant, but a waiver of a Commission engineering rule was necessary; absent the waiver, the application did not satisfy the qualifications’ standard for the grant of a broadcast license. The basic point was that someone was seeking credit for minority status who was not entitled to it under the contours of the policy as it then existed, and that was another defeat for me. The D.C. Circuit said that the Commission’s grounds for not considering Garrett’s minority ownership in deciding whether a waiver of the engineering rule was in the public interest were irrational, so we had to take another look at that. MATTHEW SHELDON: So it sounds like the D.C. Circuit didn’t always give a great deal of deference to the FCC at the time. -88- MR. ARMSTRONG: Certainly not in my own experience, that’s correct. MATTHEW SHELDON: And what prompted your move over to the ALJ Division? MR. ARMSTRONG: There was an attorney in the litigation division who had more seniority than I had, and I believe Joe Marino wanted to take this other attorney and make him his deputy. There was no reason for Joe to think I thought I should fill this position. I considered myself very, very fortunate a year earlier to have been given a very nice position as an attorney doing interesting work, and I would not have expected that a year after I got there that if there were a promotion available, I would get it. But Joe may have had a different perception because of the circumstances under which I was hired at the Commission. Normally people didn’t come off the street. Their first job at the agency would not be in the Appellate Division of the General Counsel’s Office writing briefs in the D.C. Circuit. Nevertheless, I had been hired with the active support of the General Counsel a year earlier and assigned immediately to the Litigation Division. I always got the sense that, you know, Joe felt some concern about how he was going to handle me, and I didn’t come into his division quite the same way everybody else did. So, it so happened in the Administrative Law Division at that time that the chief of that division was in poor health and they wanted to put a person in there who would, on a day-to-day basis, actively run that division. And I suspect, without knowing completely all of the inside details (if I did know I have forgotten) that probably by this time, I think Jack Pettit who had been the GC who hired me – I believe he left in ’74, and we had a new General Counsel by that time, and I believe Joe Marino and the new General Counsel probably said, “Why don’t we do this, we send Armstrong over to Ad Law as the #2 person.” MATTHEW SHELDON: Is that when you were in charge of the trial phase of the FCC matters? -89- MR. ARMSTRONG: The Administrative Law Division worked on matters which were still percolating through the agency. It was a matter that had not yet become the subject of an Order that could be taken to court. The one area I remember that we were working on, particularly when I went over there, (1) concerned whether the commission should regulate the rates that utility pole owners charged cable television systems for attaching their wires to utility poles, (2) at the time, there was no specific statutory provision on this matter. There’s a statute today giving the Commission specific jurisdiction to regulate so called “pole attachment practices.” There was concern that the rates were too high from the cable industry’s perspective. There was an effort made to get the Commission to assert jurisdiction, and that was a proceeding that was – the Cable Bureau was actively involved in that proceeding. The Chairman undoubtedly told the General Counsel’s Office that we know this is a proceeding that will probably get challenged in Court. If we do anything, we want you to be heavily involved in it. At the time I got there, the Administrative Law Division did not routinely review every single order that was being presented to the Commission for Commission approval – the so-called Agenda Review Process. It was a much more selective review process. It was only on really big ticket items, which were thought to be almost certainly heading for a court challenge. These were not sent to the Litigation Division. It was considered busy enough handling matters that had already gotten out of the Commission. My work with the Field Operations Bureau on CB radio complaints also continued to occupy my attention after I moved to the Administrative Law Division. And it was not long after I got to the Administrative Law Division that the Litigation Division came back and said that there are some proceedings that we would like you to continue to handle in the Litigation Division. One of those proceedings was in the Second Circuit, a big rulemaking proceeding in the very early part of ‘75, about six months after I moved to the -90- Administrative Law Division, concerning the “Prime Time Access Rule”, which was being litigated in the Second Circuit, and I handled that. MATTHEW SHELDON: (0:38:07) Give me a little background on that case. It sounds interesting. What was it about? MR. ARMSTRONG: Before I got to the Commission, the agency had adopted an order which had been successfully litigated, defended in the Second Circuit, and I believe it was in the Mt. Mansfield case which was decided probably around 1970. And basically, what the idea behind the Prime Time Access Rule was that you would try to clear valuable time, prime time, for some programming other than programming that came through the network funnel. The argument was, for at least a portion of the prime-time viewing, let’s give somebody a chance to get through to the public other than – at that time, there were really just the three networks: NBC, CBS, and ABC. So, as a practical matter, the rule removed the networks from the 7:30-8:00 hour, and from 7:30-8:00, the so called “independent programming” would have access, and a lot of that programming turned out to be relatively inexpensive programming, such as game shows. There began to be, about the time I came to the Commission, a pushback, and the upshot of that pushback was a proceeding in which the Commission reopened the door ever so slightly to allow the networks to come back into the 7:30-8:00 hour. My recollection won’t help me with the exact specifics, but I think they basically said if you do a documentary, or if you do a children’s program, or if you do a news program, the networks can use the 7:30-8:00 time slot. That was vigorously contested by the program producers which had benefitted from not having to compete with the networks for that time. The Second Circuit is the Circuit which had upheld the original Prime Time Access Rule, undoubtedly thinking that the Second Circuit would be sympathetic to that Rule, the Petitioners took their challenge back to the Second Circuit. There had been an -91- initial skirmish in 1974 and the Second Circuit remanded, the Commission’s first attempt to relax the rule. In that case, I had worked on the brief, but I didn’t argue the case. The Commission then went back to the drawing board, during the time when I was in the Administrative Law Division, and finished its work on the remand and the remanded proceeding went back to the Second Circuit in the early part of ’75. That’s when they came down the hall to me in the Ad Law Division and said that this time I was being assigned to brief and argue the case. The upshot of it was that we had an argument on the stay around the middle of February; the stay was denied in open court. The other side was given ten days to file its brief, and we were given ten days to file our brief. We had an oral argument up there less than a month after the argument on the stay, and six weeks later we had a decision. And while all of this was going on, I was still in the Administrative Law Division. The decision that came down was one of those decisions where if you looked at it from the outside, you would say, “Mmmm, this was kind of a split verdict,” and there was some aspects of the opinion that went to the Commission’s way and other aspects were remanded. Not every decision where you have a split verdict can be considered a win, but in that decision, the things we really cared about the most were upheld and that case was thus, generally considered a victory. MATTHEW SHELDON: And were there any ultimate reverberating effects from that? MR. ARMSTRONG: The Prime Time Access Rule, when it was initially introduced in ’70, was a part of a three-prong attempt to limit network dominance. There was a Prime Time Access Rule, and there was the financial interest rule and the syndication rule. All of this is discussed in the Mt. Mansfield opinion. The Motion Picture Association of America was very successful in lobbying in particular on behalf of the financial interest and syndication rules as a -92- means of benefiting Hollywood Studios. The repeal of the financial interest and syndication rules came about as a result of high-profile litigation in the early ‘90s in the Seventh Circuit where Judge Posner authored the Court’s opinion agreeing with the Network’s arguments in favor of repealing those rules. I’m embarrassed to say I don’t know for sure, but I think the Prime Time Access Rule has also quietly gone away. MATTHEW SHELDON: Was that the most important case you remember during your time in ALJ Division? MR. ARMSTRONG: I suspect that case was definitely my calling card to become the Chief of the Litigation Division. We got the opinion in April ’75 from the Second Circuit, and although there was some further work that had to be done, it was not by any means a complete victory, but the client was generally very happy with the way it came out, and about six weeks after that – MATTHEW SHELDON: And by client, do you mean the Commission? MR. ARMSTRONG: For this purpose, I am equating the Chairman with the Commission. About six weeks after that decision came out, in probably the late spring of ‘75, Joe Marino, who had been in the Litigation Division as the Chief of the Division…at that point, he’d probably been there 2 or 3 years. I think he’d been there about a year before I joined the agency, and we were now 2 years into my stay at the Commission. He had an opportunity to go down to the Common Carrier Bureau and become the Deputy Chief. I think he was burned out with the brief writing and oral arguments and just in general the work of the Litigation Division, so he’d indicated to the Chairman and the General Counsel that he would like to take this position in the Common Carrier Bureau. By now, Commissioner Wiley had become Chairman Wiley and called me up and told me what was going on and said, “I would like to offer you the -93- position to go back to the Litigation Division.” By this time, I believe the person that I mentioned earlier who was senior to me had taken a position as the Legal Assistant to one of the Commissioners and was no longer in the Litigation Division. The Chairman didn’t tell me specifically, but I have always thought that the successful outcome of the PTAR case in the Second Circuit probably is the reason that he gave me the offer to become the Chief of the Litigation Division. We had an interesting discussion. He said the one thing that made him a little reluctant to offer me the position was that I’m not sure you’re going to be with us that long and I would hate to offer it to you and then have you leave shortly thereafter. We’re having this conversation and I think it’s May of ’75. I had to assume that Chairman Wiley was not going to stay at the Commission forever, so a convenient point for his anticipated departure seemed to be the end of the presidential term, which would’ve been January of ‘77. So I said, “Well, I’ll make you a promise. That is, I don’t plan to leave. I don’t know that I will leave, but you’re nice enough to say that I may have the chance to leave; but if you’re right and those opportunities develop, I will not leave until, at the earliest, January of 77.” So, at that point, he was satisfied and the deal was closed. In light of subsequent history, that was one promise that was kept. MATTHEW SHELDON: At this point you’ve been an Assistant U.S. Attorney, you’ve worked for the FBI, now you’re over at the FCC. Did you feel like you had found your one true calling at the FCC? MR. ARMSTRONG: When I became the Chief, the Litigation Division was primarily engaged in appellate practice. In subsequent years, trial court cases became more numerous and more significant. But it seemed in ‘75 as though my niche was going to be appellate litigation, and the real question was whether I did appellate litigation as a member of the FCC, or whether I -94- did it in private practice. But yes, by June of ’75, I had come to think of myself as an appellate lawyer. MATTHEW SHELDON: One thing that was interesting when you were talking about the major issues that were facing the Commission when you came on, and you talked about four of them, and I didn’t hear you mention indecency, and I wonder if you could just give me the Commission’s position at that time on indecency, because obviously that has generated a lot of news. MR. ARMSTRONG: It was a very big focus. I remember when we went to the Second Circuit, as I said a minute ago, one of the exemptions under the Prime Time Access Rule was an exemption for children’s programming. When Joe Marino, who was then still the Chief, was discussing with me the brief that we were going to have to file in the Second Circuit, he said, “Now this is a part of a larger picture. The Chairman is cracking down on indecency. The Chairman is also interested in affirmatively getting more programming that is suitable for family viewing. This will become important because it ultimately was a subject of high-profile litigation in the Ninth Circuit. The Chairman’s interested in having a family viewing hour, like 7-8 at night that will be programming where parents can sit down with their children and watch television without fear of what may show up on the screen. We’re going to crack down in the radio area, in particular, on indecent language. We’re going to send you to the Second Circuit to try to get an exemption for children’s programming that would be available during access times, so this is all part of a larger picture.” My recollection is that, shortly thereafter, when the indecency language, the Carlin monologue decision was challenged, it was generally understood that, although he was going to leave the General Counsel’s Office to go to the Common Carrier Bureau, Joe Marino had a particular interest in the George Carlin Broadcast Indecency case, and -95- so, he was going to continue to have a key role in working in that case and I, as the Chief of the Division, would not have to consider that that was on my plate. I was very happy with that arrangement. MATTHEW SHELDON: And did you feel like the employees and the attorneys at the FCC morally believed in the decency provision, or were they following orders, more or less? MR. ARMSTRONG: I think, initially, nobody saw the potential line-drawing problems that might come about as a result of having the activist indecency regulatory machine. So, I don’t really think there was really any huge pushback at the staff level. Obviously, if there were private misgivings, everybody that I ever worked with at the Commission at my level always put their professionalism first, and they would always – they might in a private session after work over a glass of wine or a beer share their personal feelings, but on the job, it never stopped them from coming up with the best defense of the agency’s decisions. There were probably some of my colleagues with small children of their own, quite possibly those in particular, who were not only professionally committed to the result, but they were, in their private capacities, committed to the result and they worked heavily with Joe Marino, first in the D.C. Circuit and then in the Supreme Court. MATTHEW SHELDON: Was there a noticeable division among the Commissioners on the issue? MR. ARMSTRONG: My recollection is that indecency – you know, the old saying the Supreme Court follows the election returns. My recollection is that for whatever reason, the members of the Commission were generally supportive. One of the members of the Commission at the time was Glen Robinson who for many years after he left the Commission has been a distinguished professor at the University of Virginia Law School. In the last couple of years, -96- when the indecency regime has again been challenged in the Supreme Court and in several circuits, a number of former Commissioners and former important staff personnel at the Commission have joined in an amicus brief supporting the challenge. I’m told that Glen Robinson wrote that brief. His name was on it. He was the lead draftsman, and he certainly says in that brief that he was on the Commission in the mid-‘70s when the Commission adopted its Order in the George Carlin Monologue case that became the Pacifica decision, and I think he also wrote a concurring opinion at that time. The amicus brief refers to his support at the time for the order regulating indecency in the Carlin Monologue case. The brief then expresses concern over what has become of the indecency regime in the subsequent years. But I remember at the time that, when the Chairman, and I think the Chairman was very good – again, preSunshine days – he was very good in trying to lay the groundwork for his agenda with the other members of the Commission, and there was give and take in that process, and the word at my staff level was that Commissioner Robinson’s support was extremely important to the Chairman in getting the Carlin Order through the Commission, and there may have been some – the order was written, the opinion was written with Robinson’s support in mind, and I think that’s probably something that was helpful when the case reached Judge Leventhal and, yes, I specifically mention Judge Leventhal because I subsequently had a brief but memorable conversation with him about Pacifica. MATTHEW SHELDON: This is the Pacifica – MR. ARMSTRONG: The Pacifica. Again, I’m talking about a case that I didn’t handle personally, but I think it’s a very important case during the time I was at the Division. It’s probably worth spending a minute on. -97- MATTHEW SHELDON: And is this the challenge to George Carlin’s Seven Dirty Words? MR. ARMSTRONG: Yes. The Seven Dirty Words Order that broadcasted at two o’clock in the afternoon, which a gentleman, I think in New York State and his son heard, that was the factual foundation in which the order issued. The decision on indecency came out. We had a bloody March, as we call it – March of ’77, and we’ll talk in a minute probably about newspaper cross-ownership and the anti-siphoning case, Home Box Office, for both of which came down in March of ‘77. So did indecency. Judge Tamm and Judge Bazelon were the majority which struck down the Commission’s order. Judge Leventhal had a very powerful dissent in which he tried to see the case from the perspective of the Commission and those who wanted it to regulate in this area. The dissent declined to read the Commission’s order as an open-ended invitation for censorship, but instead made the case for more limited regulation as persuasively, in the opinion of many, myself included, as possible. The dissent was obviously something to which the Supreme Court would pay careful attention. So, that was March of ’77 and a year later, it was argued in the Supreme Court. The Justice Department had left the ship and gone over to the other side so the Commission was on its own when the case reached the Supreme Court. My predecessor, Joe Marino, with help from some of the very able attorneys in the litigation division, wrote the brief. He argued the case in the spring of ’78. It was the last case on the term to be decided, just before the Fourth of July. The other side was at the Supreme Court, with the television cameras waiting outside, understandably expecting to win. The argument had been pretty tough on the Commission. People on our side, on the other hand, went to the Court that morning expecting to lose, but everybody knew that Pacifica was the only case left for decision on the last day of the term. Some months after the Supreme Court’s 5-4 -98- decision in favor of the Commission, Judge Leventhal had occasion to call me. This was one of the very few telephone calls I got at work from a judge. He was writing a Law Review article, and there had been an obscure FCC case that never resulted in a published opinion, but it was a case in which he’d been the presiding judge, and had come up with a creative way to settle the case. He wanted to cite that in this Law Review article he was writing, and he’d forgotten the name of the case. So, he was asking my help in giving him the case name. After that part of the conversation was completed, and we were getting ready to hang up, he was very pleasant and he said, “Oh, by the way, were you surprised when the Supreme Court affirmed me in Pacifica?” Well, you know everybody suspects that a well-respected judge with an influential dissent can be very, very helpful at the Supreme Court in a close case. It was widely believed at the time of the Supreme Court’s decision that the Leventhal dissent really saved the day for the Commission. It was very interesting to me to hear firsthand that Judge Leventhal also saw Pacifica as a personal victory. MATTHEW SHELDON: Well, with that, let’s leave today and pick up the next session with the beginning of your time as the Chief of Litigation with the FCC and focus on that period from 1975 forward. MATTHEW SHELDON: Great, well, I look forward to our next session. MR. ARMSTRONG: Thank you. (End of recording)