Example 3.5

Takeaway point 3.5: Slip helpful case law into your Statement of Facts by making those authorities factually relevant to your client’s story.

In addition to explaining statutes, Statements of Facts can discuss cases.

In the following case, several TV networks sued the Federal Communications Commission (FCC) for deciding not to repeal or modify a long-standing regulation that imposed a cap on networks’ ownership of broadcast television stations.

Source: The final paragraph of Fox’s (and other TV networks’) Statement of Facts in Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002), modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002).

This final section of the brief’s Statement implies that if the FCC’s rule on letting cable operators own TV stations was “arbitrary and capricious,” the agency’s rule on letting networks own stations was equally cavalier.

Know your audience. Some judges may have no idea what a “horizontal cap on national cable television ownership” is. But the D.C. Circuit had just decided the Time Warner IIcase, and the court routinely hears antitrust cases, so the lawyers concluded that they didn’t need to explain the term. The test of good writing is how it serves your decision maker, not a randomly selected reader. That said, the law clerks who worked on the case probably didn’t know this area of the law very well.

This sentence is brilliant. Fox smuggles into its Statement of Facts a quote from a judicial decision (about a related issue) to show that the same government agency suffered “conjectural” delusions of “anti-competitive behavior.“ The implication: the FCC imagined risks in the other case, so the risks in this case are also phantasmal.

The quote supports Fox’s legal burden: it needs to show that the FCC’s rule is “arbitrary and capricious.” Showing that the agency failed to link its decision to the facts (or to its own conclusions) undermines the decision maker’s credibility.

WARNING! This final sentence crosses the line into Argument. There is no penalty for doing so, but the choice might irritate some judges or clerks.