[00:00:01] Speaker 00:
Case number 20-5195, Open Technology Fund et al, a balance, versus Michael Pack in his official capacity as chief executive officer and director of the US Agency for Global Media.

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Mr. Beck for the balance, Mr. Sinczak for the appellee.

[00:00:17] Speaker 01:
Mr. Beck and Mr. Sinczak, nice to see you.

[00:00:20] Speaker 01:
Sorry we can't see you in person, but this is as good as it gets for us.

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Mr. Beck, you have 15 minutes.

[00:00:27] Speaker 04:
Thank you, and good morning, and may it please the court.

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I'm going back on behalf of the plaintiffs, Open Technology Fund, and instructors.

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The question in this case is whether the US Agency for Global Media, a federal agency, has the authority to remove and replace the officers and directors of Open Technology Fund, a private nonprofit corporation.

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The default rule in this country

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is that the federal government has no power to control the boards of private corporations.

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And that background principle is especially strong in this context, where we're talking about a nonprofit corporation that's devoted to expressive activity.

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So for the government to prevail in this case, it has to show something special about OTF that separates it from a typical nonprofit.

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And the government points to two things, the international broadcast

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and OTF's own bylaws.

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It's wrong on both counts.

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Could I interrupt for one second?

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Even if it were right about the bylaws, isn't the point of our opinion in California Independence System Operator that there has to be a statute in order for, which would authorize the government to take over a board?

[00:01:44] Speaker 04:
Yeah, there has to be.

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Oh, yes.

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I think that that's a good point.

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I mean, even assuming that bylaws sort of authorize a federal official to take this kind of action, a separate question is then can the federal official actually do that?

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And I think it's problematic that a private

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A private corporation could could sort of draft a federal Not just problematic.

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If the statute doesn't authorize somebody a federal government official to remove and replace a board.

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Does it matter what the bylaws say?

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Even if the bylaws say we'd like the Secretary of Defense to be our chair, to decide who's on our board, there is no statute that authorizes the Secretary of Defense to do that.

[00:02:39] Speaker 04:
I think that's right, Your Honor.

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And the statute sets out a limited set of powers that the CEO has.

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And that's not among them.

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Also, I think 6209D, it specifies by specifying what kinds of officers and directors the CEO can appoint.

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It also, by implication, rules out

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pointing any other officers and directors for different kinds of organizations.

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So I think that's correct.

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Relatedly, Mr. Beck, do we have to reach the question of the limitations on Mr. Peck's authority if we think that his potential residual authority, if we think that the authority he's pointed to, which is authority over

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organizations that are authorized under the statute, if that's what he's relying on.

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And that is also the identical terms in the bylaws that he's relying on.

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And so I guess what I'm asking is it seems, and I think your briefing supports this as well, that when the district judge said the statute doesn't authorize this, but the bylaws do,

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That seems internally inconsistent to me.

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Yeah, because the bylaws, they simply reference the statute.

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And normally, if you read a contract that just incorporates a statute, the only reasonable way to read that is incorporating the statute as it's actually written, not some alternative version of the statute that creates additional powers that aren't in the statute.

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So what if the statute's ambiguous as to whether PAC has this authority

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And he and Open Technology Fund both read that ambiguity that he does have this authority.

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So I think, first of all, you have to look, I think, at DC nonprofit corporate law and DC contract law, especially.

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And the rule in DC, which is the default contract interpretation rule everywhere, is that the plain text controls if it's not ambiguous.

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Now, if there is an ambiguity, I think the next step is to look at what the default assumption

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But I was saying, if there's an ambiguity in the statute and therefore in the statutory term that the bylaws incorporate, and if both the relevant parties say, oh, we think this puts us on a par with Radio Free Asia.

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Yeah.

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Well, I mean, just first off, I mean, there's certainly no evidence that that's what both parties thought.

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In fact, the only evidence of actual intent of someone involved in the drafting of the bylaws was Libby Liu's declaration below, and she was emphatic.

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that she did not believe that PAC would be given this authority.

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And there's no contrary indication that the agency felt differently.

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In fact, if you look at the language of the bylaws, I think it backs that up.

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It says all the provisions regarding appointment of officers and directors

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say that they may be appointed as may be authorized under the act.

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And I don't know why they would have written as may be authorized if they definitely felt that it would be authorized in that case.

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Similarly, section nine of the bylaws

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This is the part that actually discusses the CEO appointing directors and whether there's a conflict of interest in that case.

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And it says that there will be no conflict of interest from a CEO appointment provided that such appointment is authorized under the Act.

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That's pretty clear that there's an understanding that it may not authorize that.

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And I think that's really the question for the authorized under the act line.

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We got 6209 would include this entity that we're dealing with in this case.

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Is that not really the question or am I misreading things.

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I think that's right.

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The question is, is

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is um is otf authorized under that i think that gets right to the core of the question in this case and um you know if it's not then as was suggested earlier the bylaws couldn't create a power in the government official that isn't there by statute would that not be that's don't we have to come back to the statute rather than ending with the bylaws right i think that i think that's that's how i would prefer to look at it as well that

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that the statute controls what the CEO's authorities are, and the bylaws can't extend power beyond the limit that the statute creates.

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And OTF is not authorized under the act for the simple reason that it's not like the quasi-government broadcasting entities that are governed by the act.

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It's not mentioned anywhere in the act.

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It's not created by the act.

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It's not mentioned in any legislation that Congress has ever passed.

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In your own pleadings in the case, you refer to the entity as having been incubated within Radio Free Asia, right?

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That's correct.

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It was conceived and hatched within Radio Free Asia as well.

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I would put it a little differently.

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I would say that the idea for Open Technology Fund began at Radio Free Asia.

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The legal entity that's a corporation under D.C.

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law was created in 2019 by filing the Articles of Incorporation.

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The fact that the idea came from Radio Free Asia, I don't think, controls its nature.

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The implication for the D.C.

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Superior Court, for us of the D.C.

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Superior Court litigation, is there going to be any, should we be abstaining or could that litigation resolve this litigation?

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Well, I think, Your Honor, that the primary questions in this case are the ones we've been talking about, which are questions of federal statutory interpretation, which I think is well within this court's domain.

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Now what the DC courts have expertise in is the nonprofit law.

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And what the attorney general said in its filing is that the background presumption and the normal assumption is that the directors control their own leadership.

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And I think as long as this case isn't going to turn on the presumptions of DC nonprofit law, I don't think there's a need in that case.

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What do you think the words are otherwise?

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Authorized under this act refer to if they don't refer to an entity like the one we have here.

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Well, I think it reflects sort of the unique nature of the International Broadcasting Act, which is kind of an accumulation over time of different entities that were founded over the past 80 years.

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Is it an empty set if we don't include in it the entity before us today?

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What does it include?

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Right now, I think it includes nothing.

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But I would point out that that problem is not one that's unique to our side.

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Because at the time that the statute was passed in 2016, OTF did not exist as an organization.

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So that would be consistent with it either being included or not included in the term or otherwise authorized in it.

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Right.

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What it means is that under both interpretations, there's a problem in that this phrase doesn't seem to include any entities at the moment.

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Radio Free Asia didn't just think of this idea, as you put it.

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It actually, I think your written document is better that it incubated this entity in Radio Free Asia.

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And unless it was acting as an unauthorized

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renegade government agency wouldn't you have to say it's authorized under this act?

[00:11:28] Speaker 04:
No, because I think authorized has a particular term of art meaning in that it means that- I know it does, because I was in court governance for some years.

[00:11:37] Speaker 05:
We had to talk to the authorizing the appropriators and beg them for money all the time.

[00:11:41] Speaker 05:
Exactly.

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I know it is a term of art in that context, but this is not the same context.

[00:11:46] Speaker 02:
In your briefing, you referred Mr. Becker to Radio Free Afghanistan as

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been authorized or established.

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So right, that's established under the Act but not authorized?

[00:11:59] Speaker 04:
No, I think Radio Free Afghanistan is authorized under that.

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That's one example of an organization that's not listed but that could be included in that residual clause.

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I think

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A possible problem is that it's a subdivision of Radio Free Europe, so I didn't want to rely too heavily on that.

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But I do think that it is clearly authorized in the act, and that would, under the plain language, give the CEO authority over it.

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You know, back in 2004, when Congress created the Middle East Broadcasting Corporation, it did that in appropriations legislation.

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And it didn't mention it in the International Broadcasting Act.

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That happens to predate the statutory provision that we're talking about today.

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But if Congress did something like that next year, created a new broadcasting entity, which happens all the time, this is a constantly changing assemblage of different groups.

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Then it wouldn't, it then wouldn't need to amend international broadcasting.

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I could just create new entities.

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As long as they're authorized under that in the appropriations language, then they would be included in this in this clause so that I think it makes sense as a sort of an accumulation statute of different

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organizations.

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And also, we point out in the briefs that the statute gives the CEO authority to incorporate new entities.

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And we think it's reasonable to think of that as Congress delegating to the CEO the authority to create new entities under the Act.

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And in that case, those new entities, I think, would be reasonable to think that they're included in that phrase.

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I'd like to reserve the rest of my time for a bottle unless there's more questions.

[00:13:44] Speaker 01:
Are there further questions from the bench?

[00:13:47] Speaker 01:
Okay, you may reserve your time, Mr. Sinczak.

[00:13:50] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:13:52] Speaker 03:
Jerry Sinczak on behalf of the government.

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You know, as has been discussed, this case focuses on whether, primarily whether

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OTF is an organization authorized under the act.

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And so I just wanna be clear as to what we think authorized under the act means.

[00:14:08] Speaker 01:
Could I just interrupt you for one second?

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Do you agree that if it's not authorized under the act that the bylaws are, bylaw argument is not relevant?

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So your honor, I mean, I don't take that as an argument that plaintiffs have made here.

[00:14:21] Speaker 01:
And so- I'm asking you a question now.

[00:14:26] Speaker 01:
The district court said it was,

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not okay under the statute, but is okay under the bylaws.

[00:14:33] Speaker 01:
I don't understand how that's possible.

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And I'd like to know what your answer is on that.

[00:14:38] Speaker 03:
I mean, Your Honor, at least as far as the plaintiffs haven't contested that, I know you're on.

[00:14:43] Speaker 03:
I don't want to focus on this.

[00:14:45] Speaker 03:
I understand your point from the case that you cited.

[00:14:49] Speaker 01:
That is the title of one of the sections of their brief, that there has to be statutory authorization.

[00:14:55] Speaker 01:
So what is the answer to that question?

[00:14:57] Speaker 03:
Your Honor,

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I'm not sure what the answer to that question is.

[00:15:00] Speaker 03:
I mean, because it hasn't been briefed, I would say.

[00:15:03] Speaker 01:
It was briefed.

[00:15:03] Speaker 01:
It was in the amicus brief.

[00:15:05] Speaker 01:
So you knew this was coming.

[00:15:06] Speaker 01:
So the government must have an answer to this question.

[00:15:09] Speaker 01:
I don't have an answer to this question.

[00:15:10] Speaker 03:
I guess I would say at a minimum, it does shed light on the meeting of what OTF and what the government understood and USAGM understood the statute to mean.

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So at a minimum, I would say that.

[00:15:26] Speaker 03:
But you know.

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But you're not, are you willing?

[00:15:29] Speaker 03:
I'm not willing, I mean, I can't at this point concede because that argument hasn't been presented by the plaintiffs.

[00:15:35] Speaker 03:
But I would like to focus on.

[00:15:36] Speaker 05:
If you didn't have the statute and you just had a non-profit, not-for-profit corporation that put in its bylaws or in its charter, the secretary of state or some other official can replace our board, that wouldn't work, would it?

[00:15:49] Speaker 03:
Your Honor, I agree that that would likely not work.

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So I do want to focus on the statute.

[00:15:53] Speaker 05:
If they have the statute, in order for anything to work, don't you?

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Yes, under this court's law.

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So I do want to focus on the statute and I want to explain what authorized under

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means, it means authorized to function as a U.S.

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international broadcasting entity with funds provided by USAGM.

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And that requires that you agree to be subject to the IBA and its dictates, which include promoting U.S.

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foreign policy and acting consistent with U.S.

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foreign policy, and being subject to USAGM's close oversight.

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And if we just take a step back and look at the practical

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reality of how this entity was formed.

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It wasn't a nonprofit formed out of nowhere.

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It was incubated by Radio Free Asia.

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It was spun off from Radio Free Asia at the request of USAGM.

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It went to Congress and said, Congress, please provide the funds to spin this organization off because we think we can oversee it better and streamline its operations better.

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Congress agreed to do that.

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It was incorporated by Radio Free Asia's president, its board, its initial board, and at all times has been USAGM's governing committee.

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So if there's any organization that's authorized under the Act, it's this one.

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And I would also just like to point out the history of US international broadcasting.

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There are very few entities that have been in this realm.

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But, you know, as times have changed, as audiences have changed, as technologies have changed, some of these organization structures have changed.

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You know, Radio Free Europe and Radio Free Liberty was merged.

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The Middle East Broadcasting Networks, which isn't otherwise established in the statute, it was spun off of Radio Free or Voice of America.

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after 9-11.

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Obviously, the IBA contemplates the merger of radio-free Asia and radio-free Europe, et cetera.

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So Congress, when it's creating this catch-all provision, is contemplating that things will change in the future, and there will be additional energies potentially spun off or consolidated.

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And that's exactly what happened here.

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OTF was spun off.

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And its whole purpose, its whole reason for being, is to further the policies of USAGM and US foreign policy.

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And this will not open the Pandora's box, I think, that plaintiffs are presenting here.

[00:18:08] Speaker 03:
To say that authorize under means an organization that was spun off of another radio broadcasting entity that was done so at the request of USAGM with funds provided by Congress to do the work that it was doing, the same exact work it was doing under Radio Free Asia.

[00:18:25] Speaker 03:
There's no suggestion it's doing anything different.

[00:18:27] Speaker 02:
Mr. Sendzak, I must confess I've been distracted by your

[00:18:31] Speaker 02:
earlier assertion that Open Technology Fund didn't make the argument that the bylaws and corporation of the act can't give the agency more authority than the act itself gives.

[00:18:44] Speaker 02:
In other words, if the act doesn't confer this authority, the bylaws can't either.

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And I had thought that was squarely in their briefing.

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And in fact, it is.

[00:18:55] Speaker 03:
Well, yes, I mean, I guess their argument is it goes no further argument is that

[00:19:01] Speaker 03:
that it should be interpreted as at least the founders understanding it.

[00:19:06] Speaker 03:
But even if your honor accepts the argument.

[00:19:08] Speaker 02:
That's a very different argument.

[00:19:12] Speaker 02:
So the Open Technology Fund argues that it doesn't matter whether

[00:19:24] Speaker 02:
I'm going to flip the negatives, but that you're making an argument based on the bylaws in the alternative, even if you lose the statutory argument.

[00:19:33] Speaker 02:
And they're saying it just isn't an alternative argument if you lose the statutory argument.

[00:19:37] Speaker 02:
And your answer to that is that you're not addressing that?

[00:19:40] Speaker 03:
No, I guess, I mean, the answer that we gave was that, you know, as, you know, bylaws ordinarily are interpreted according to contract principles and that if

[00:19:49] Speaker 03:
everything about the bylaws exemplifies the understanding that the initial, not incorporated, but the initial board understood it would cover OTF.

[00:19:58] Speaker 03:
That's our argument.

[00:19:59] Speaker 03:
The separate argument that it couldn't have done that unless it had authority under the statute is not one that the plaintiffs themselves have made.

[00:20:08] Speaker 01:
All they're saying is- I understood that when Judge Sentel asked you the same question, you said you agreed it was likely

[00:20:15] Speaker 03:
Yes, Your Honor, and I don't want to fight about that particular premise, because I do agree that the case law is on their side about that, although they didn't make that argument specifically.

[00:20:26] Speaker 03:
But I think we should focus on focusing on the statute itself.

[00:20:30] Speaker 03:
OTF is clearly an organization that Congress had in mind that was authorized under this statute.

[00:20:37] Speaker 02:
And the difficulty then is how do you distinguish if receiving money

[00:20:42] Speaker 02:
and being part of what advances the overall objectives of USA Global Media, how do you distinguish the daycare or other recipients of?

[00:20:54] Speaker 03:
Well, as we said, first of all, there are very few other recipients.

[00:20:58] Speaker 03:
And what the key is is that they have agreed to carry out US international broadcasting activities.

[00:21:04] Speaker 03:
And the daycare isn't doing that.

[00:21:06] Speaker 03:
The daycare is providing an ancillary service

[00:21:10] Speaker 03:
You know, the employees of the people and in here.

[00:21:13] Speaker 02:
That's where you draw the line because the fun says it's an ancillary service, you know, supporting the technology capabilities and the and the You know privacy tech capabilities, but not actually itself broadcasting content.

[00:21:25] Speaker 03:
Well, I think, you know, the idea that this isn't a central tenant of U.S.

[00:21:29] Speaker 03:
international broadcasting is applied by both the statute itself, which says technology is an important and central part of international broadcasting, and also the report that USAGM submitted to Congress in asking that this entity be spun off and separately funded made clear that, you know, internet dissemination is crucial to U.S.

[00:21:47] Speaker 03:
international broadcasting going forward, that, you know, this is an important technology that needs to be shared with the other entities and so on and so forth.

[00:21:55] Speaker 03:
And again, if you look at just their bylaws and certainly the grant agreement, it makes clear that their reason for being their purpose is to further the strategy and policies of USAGM.

[00:22:07] Speaker 03:
And this isn't, again, this isn't a Pandora's box where there are going to be a number of entities that are tricked into thinking that they're now US international broadcasters.

[00:22:17] Speaker 03:
You have to agree to, you know,

[00:22:20] Speaker 03:
form your policies around or your activities around U.S.

[00:22:23] Speaker 03:
foreign policy and to further the views of U.S.

[00:22:27] Speaker 03:
policies.

[00:22:28] Speaker 03:
And so that, you know, there aren't entities that are willing to do that.

[00:22:34] Speaker 03:
That's why there have been no private entities.

[00:22:36] Speaker 03:
There are no other entities that clinics can identify.

[00:22:39] Speaker 02:
I guess I am a little worried that it could be a Pandora's box.

[00:22:44] Speaker 02:
I mean, there are a lot of private entities that have their own

[00:22:48] Speaker 02:
First Amendment rights and autonomy that work very closely with the government.

[00:22:52] Speaker 02:
And I'm thinking of social services organizations that are, when they take, they get a lot of money and they absolutely are carrying out governmental objectives in the way they administer that money.

[00:23:05] Speaker 02:
But they also are independent as a governance matter.

[00:23:11] Speaker 02:
And you'd be surprised if the assistance that they receive

[00:23:17] Speaker 02:
made them vulnerable to, and I understand that that's some steps away, but so just as a formal matter, not looking at sort of the understandings, but as a formal matter, your strongest argument for this authority is the statutory reference to authorized.

[00:23:39] Speaker 03:
Yes, that they are an organization authorized under the act.

[00:23:42] Speaker 01:
Is your position then that any,

[00:23:46] Speaker 01:
if there is a nonprofit that's established totally on its own and they accept grants which require them under the statute to do permit supervision, following the government's policies, et cetera, that any grantee who agrees to those kinds of conditions, the board can be set by Mr. Pack, is that the position?

[00:24:15] Speaker 03:
I mean, if they agree to be subject to USAGMS oversight in the IVAs principles and standards.

[00:24:20] Speaker 03:
Yes, but there have only been four entities that have ever done so.

[00:24:23] Speaker 01:
So then we're going back to the question we asked before.

[00:24:26] Speaker 01:
If a corporation agrees to grant conditions, does that give the cabinet secretary the authority to replace their board?

[00:24:39] Speaker 03:
If there's a statute that says, you know, and we have to understand what does that mean to say you can control the board of any entity authorized under the statute.

[00:24:48] Speaker 02:
What about, okay, what about in this, under this statute and this program, you now have the Office of Internet Freedom that is within

[00:25:00] Speaker 02:
the USA Global Media, and it's giving grants.

[00:25:05] Speaker 02:
The technology companies that are acting pursuant to those grants, are they authorized within the meaning of the statute as you read it?

[00:25:16] Speaker 03:
Well, I don't know that that has started happening.

[00:25:18] Speaker 03:
But if an organization accepts a grant and they agree to all these conditions, that they are going to be a US international broadcaster, that they're going to act consistent with US foreign policy,

[00:25:30] Speaker 03:
that they will be funded by USAGM, then yes, they would be authorized under the statute.

[00:25:35] Speaker 05:
That would be automatic without having a separate provision in that agreement to that effect.

[00:25:41] Speaker 05:
That would be automatic just under the statute.

[00:25:43] Speaker 03:
It would be automatic under the statute.

[00:25:45] Speaker 03:
There wouldn't need to be a separate provision.

[00:25:47] Speaker 02:
So if I'm a tech company that receives money to support the broadcast mission,

[00:25:52] Speaker 02:
And I have some program that's to support the broadcast mission by doing tech support to journalists and repressive regimes.

[00:26:00] Speaker 02:
That alone is enough, in your view.

[00:26:02] Speaker 03:
I just want to be clear.

[00:26:04] Speaker 03:
I mean, there haven't been such entities until now.

[00:26:07] Speaker 02:
Well, presumably there will be, because you've resurrected the Office of Internet Freedom.

[00:26:11] Speaker 02:
And I don't know if it does subsidiary grant making.

[00:26:14] Speaker 02:
Maybe it doesn't.

[00:26:14] Speaker 02:
But if it did, that would seem to pose exactly that.

[00:26:18] Speaker 03:
Well, I mean, Your Honor, I mean, just again,

[00:26:21] Speaker 03:
There haven't been, I mean, the reason why there aren't private tech companies willing to do this is because you have to agree to be effectively, you know, an arm of the US government, that you have to, you know, promote US government.

[00:26:30] Speaker 03:
Yes, you have independence, some measure of independence in your operations, but you're agreeing to act consistent with US foreign policy.

[00:26:36] Speaker 03:
You're agreeing to conform your operations to USAGM policy and strategy and its understanding.

[00:26:41] Speaker 01:
You're saying, though, that this statute authorizes Mr. Pack to set up new arms of the government, new nonprofits, in which he appoints the board.

[00:26:52] Speaker 01:
Is that your?

[00:26:54] Speaker 01:
Well, I mean, the statute alone as the CEO has the authority to make the grants and then demand that they be the chair, that he appoint the board.

[00:27:06] Speaker 01:
Is that the government's position?

[00:27:08] Speaker 01:
Well, I mean, that's Congress's position in terms of.

[00:27:10] Speaker 01:
No, that's the government's position that that's Congress's position.

[00:27:14] Speaker 01:
You interpret this statute as allowing Mr. Pack to set up as many grantees as government entities as he wants and to appoint the board.

[00:27:23] Speaker 01:
That's the government's position.

[00:27:24] Speaker 01:
That's the government's understanding of the statute.

[00:27:27] Speaker 03:
You know, if Congress is, you know, if it's consistent with Congress's appropriation, yes, that's in Congress.

[00:27:32] Speaker 03:
You know, USAGM didn't form OTF out of thin air.

[00:27:35] Speaker 03:
It went to Congress and said, please,

[00:27:37] Speaker 03:
appropriate this money so that we can form this entity as a U.S.

[00:27:41] Speaker 03:
international broadcaster.

[00:27:42] Speaker 05:
That makes it something more than just a grantee.

[00:27:45] Speaker 05:
There has to be something more than just grantee status coming under the statute, doesn't there?

[00:27:49] Speaker 05:
You seem to be claiming that any grantee is within the catch-all on this statute.

[00:27:56] Speaker 05:
Is that really the government's position?

[00:27:59] Speaker 03:
No, I mean, not any grantee.

[00:28:00] Speaker 03:
Being a grantee makes you an authorized under the statute?

[00:28:04] Speaker 03:
No, not any grantee, but a grantee that is agreeing or that is serving as a US international broadcasting entity.

[00:28:11] Speaker 02:
So what about, I mean, you said there weren't any, but actually in the reply brief of OTF at page eight, there's a reference to the revived office of internet freedom and a press release, which has given money to private software companies to advance

[00:28:31] Speaker 02:
the internet freedom objectives of the office and also USA Global Media.

[00:28:39] Speaker 02:
So I guess the question is that they're authorized and they are agreeing presumably in their contracts receiving that money, then would the governance prerogatives of the CEO extend to them?

[00:28:54] Speaker 02:
And if not, what are you pointing to as a matter of the statute that would protect them?

[00:28:59] Speaker 03:
Well, again, if they're agreeing to the be subject to the dictates of the IBA, one of the provisions of the IBA is that USAGM CEO has authority to report.

[00:29:09] Speaker 05:
Well, I realize your time is over.

[00:29:10] Speaker 05:
I'm extending it.

[00:29:11] Speaker 05:
I hate to do that.

[00:29:12] Speaker 05:
But it's all right.

[00:29:15] Speaker 05:
Isn't it possible that there are two categories of grant recipients of money from the government under these programs, one of which is a grantee that may have pre-existed the grant.

[00:29:29] Speaker 05:
or an entity which is created from its beginning by an authorized entity like Radio Free Asia, incubated as the appellant puts it, within that agency and spun off with Congress's funding and permission.

[00:29:53] Speaker 05:
Isn't that different than just a grantee?

[00:29:57] Speaker 03:
Your Honor, I agree with you that

[00:29:59] Speaker 03:
certainly this court could say that at a minimum those characteristics that you're identifying do you have to win on this proposition that all grantees could be covered but no and we certainly don't agree that every grantee i'm wondering why you're even fighting that position yeah i mean and i don't mean to fight it i just want to be clear that you know certainly one otf is in a unique spot because it was created you know if if nothing else authorized under means an entity that was

[00:30:29] Speaker 03:
you know, formed as part of a different broadcasting entity that was spun off of an entity with congressional approval at the request of the agency and so forth qualifies as one authorized.

[00:30:39] Speaker 03:
Whether it extends beyond that, this court wouldn't have to have to reach that.

[00:30:43] Speaker 01:
Is there a line item in the appropriations bill and an act that mentions OTF?

[00:30:49] Speaker 03:
Not OTF specifically.

[00:30:51] Speaker 03:
There's the open, there's the internet freedom

[00:30:55] Speaker 03:
provisions of the Appropriations Act that we cite.

[00:30:58] Speaker 01:
Right, but there is no appropriation line that specifically mentions this entity, is there?

[00:31:05] Speaker 01:
Not that I'm aware of, no.

[00:31:06] Speaker 01:
It approves money for grants, but it doesn't approve it for this specific agency.

[00:31:10] Speaker 03:
Well, I mean, for OTF?

[00:31:17] Speaker 01:
For the Open Technology Fund, the entity we're speaking about.

[00:31:19] Speaker 03:
I mean, to be honest, Your Honor,

[00:31:21] Speaker 03:
I can look into this, but I'm not aware that it actually appropriates money for Radio Free Asia either or for... Yes, that's fine, but Radio Free Asia is mentioned in the statute.

[00:31:31] Speaker 01:
You made an argument that sounded like Congress had authorized by making an express appropriation for this.

[00:31:40] Speaker 01:
Yeah, if I said that, I misspoke.

[00:31:45] Speaker 03:
The only point I was making there is that it made clear that

[00:31:49] Speaker 03:
You know, the types of activities that OTF is engaged in, internet technologies are funded by, you know, are part of international broadcasting.

[00:31:57] Speaker 03:
Congress recognized that those are activities that fit within US international broadcasting.

[00:32:03] Speaker 01:
Yeah, and that those can be, that grants can be made.

[00:32:08] Speaker 03:
Grants to further those, yeah, that point I was making.

[00:32:11] Speaker 01:
This goes back to the question Judge Santel's asking you.

[00:32:13] Speaker 01:
You are arguing that all grantees, that any grantee,

[00:32:17] Speaker 01:
who agrees to all these provisions can have their board replaced.

[00:32:24] Speaker 01:
It's not really a separate argument on your part.

[00:32:27] Speaker 03:
Well, I guess I would put it two ways.

[00:32:29] Speaker 03:
I think that we do agree that if you agree to the IBA and all its dictates, yes, but this court doesn't have to go that far to say that OTF is authorized under the Act because OTF, because of the unique circumstances surrounding OTF's creation and what it does and so forth.

[00:32:47] Speaker 03:
Although, yes, the government's position.

[00:32:49] Speaker 01:
But none of those unique things that you're talking about, that's legislative history, right?

[00:32:57] Speaker 01:
That's not in any statute or appropriations bill.

[00:33:04] Speaker 01:
That's correct.

[00:33:05] Speaker 01:
And you know, courts generally think about legislative history independent from statutory text.

[00:33:12] Speaker 03:
Well, one thing I would point out, Your Honor, just the statutory text does provide that there will be consolidation of the other entities.

[00:33:18] Speaker 03:
So Congress clearly had in mind.

[00:33:19] Speaker 01:
Yes.

[00:33:20] Speaker 01:
And if that, no, that's quite clear.

[00:33:22] Speaker 01:
And, and I think that would be quite right.

[00:33:25] Speaker 01:
If, if it fell under that category, which are the consolidation of such entities, you would be fine.

[00:33:34] Speaker 01:
But that is not, you're not arguing that falls within that category of the statute, are you?

[00:33:41] Speaker 03:
No, but we're what the point being is the reason why Congress created a general catch all and usually a basic principle of statutory construction is you look at the specifically you know proceeding items.

[00:33:52] Speaker 03:
You know, the reason it created is to capture what has happened in the past, which is things like consolidation or spin offs of existing entities at a minimum.

[00:34:00] Speaker 03:
you know, it makes sense to interpret what Congress was doing in light of that history.

[00:34:04] Speaker 01:
But the catch-alls normally use a word like or otherwise.

[00:34:09] Speaker 01:
Well, we cite a number.

[00:34:10] Speaker 01:
The statute does not say or otherwise authorized by.

[00:34:14] Speaker 03:
Your Honor, we cite a number of cases in our brief where there was a general provision, any election in one case, any tangible item in another, in that kind of general phrasing that didn't include the otherwise authorized language in the Supreme Court.

[00:34:30] Speaker 03:
looked at, you know, these specific list of items to determine what that meant.

[00:34:34] Speaker 03:
And if you look at those items, the only thing that they universally have in common is, you know, also held in common with OTF, that they were, you know, fully funded by USAGM.

[00:34:46] Speaker 03:
They serve as a U.S.

[00:34:47] Speaker 03:
international broadcaster.

[00:34:48] Speaker 03:
They're providing a U.S.

[00:34:49] Speaker 03:
international broadcasting service.

[00:34:51] Speaker 03:
They're dedicated and they've agreed to further USAGM policy and strategy.

[00:34:56] Speaker 01:
OK, we're over time, assuming no further questions.

[00:35:00] Speaker 01:
Mr. Beck, you have some time for rebuttal.

[00:35:06] Speaker 04:
Thank you.

[00:35:07] Speaker 04:
I wanted to address Judge Santel's point about it being incubated, OTF being incubated in Radio Free Asia.

[00:35:14] Speaker 04:
And I think the government makes a similar sort of

[00:35:19] Speaker 04:
connections between OTF and it's sort of a guilt by association kind of argument that because they're, they sort of are associated with the same people and they're engaged in the same groups.

[00:35:30] Speaker 04:
that therefore they're authorized just like these other organizations are.

[00:35:35] Speaker 04:
And I think the problem with it is it's not consistent with the language of the statute.

[00:35:38] Speaker 04:
It says authorized under the act.

[00:35:41] Speaker 04:
It doesn't say conceived of within an authorized organization.

[00:35:45] Speaker 04:
Only if an organization is authorized under the act.

[00:35:49] Speaker 04:
And the problem with that is

[00:35:51] Speaker 04:
OTF is not even mentioned in the act.

[00:35:54] Speaker 04:
It's not created.

[00:35:55] Speaker 04:
It's not given authorization to take any action or prohibited from doing any action.

[00:36:01] Speaker 05:
In the very language, there are either authorized under this act or authorized under this act.

[00:36:09] Speaker 05:
Doesn't that suggest that we would not expect it to be mentioned by name in there?

[00:36:13] Speaker 05:
That's a catch-all, isn't it?

[00:36:16] Speaker 05:
There has to be.

[00:36:17] Speaker 04:
No.

[00:36:18] Speaker 05:
the possibility of an unnamed entity, or you don't need that language.

[00:36:23] Speaker 04:
No, well, Your Honor, I think it could be authorized under the Act either by being created by the CEO under section 6209A, which gives them the authority to incorporate new entities.

[00:36:36] Speaker 04:
That would be under the Act.

[00:36:38] Speaker 04:
And also, Congress could appropriate and authorize it in appropriations of legislation.

[00:36:43] Speaker 05:
Nonetheless, the fact that the Act doesn't mention this

[00:36:45] Speaker 05:
name doesn't really cut much ass when you have that language about or authorized under this act.

[00:36:55] Speaker 04:
I see what you're saying on it, but there are other ways that it can be authorized in appropriations legislation or the like.

[00:37:02] Speaker 04:
I see my time has expired.

[00:37:05] Speaker 04:
Further questions from the bench?

[00:37:07] Speaker 01:
All right, thank you.

[00:37:07] Speaker 01:
This was a very interesting argument.

[00:37:09] Speaker 01:
We appreciate it and we'll take the matter under submission.

[00:37:12] Speaker 01:
Thank you.