489 F.3d 444 (2nd Cir. 2007), 06-1760, Fox Television Stations, Inc. v. Federal Communications Com'n

Docket Nº:06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).
Citation:489 F.3d 444
Party Name:FOX TELEVISION STATIONS, INC., CBS Broadcasting, Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearstargyle Television, Inc., ABC, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents, NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association,
Case Date:June 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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489 F.3d 444 (2nd Cir. 2007)

FOX TELEVISION STATIONS, INC., CBS Broadcasting, Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearstargyle Television, Inc., ABC, Inc., Petitioners,


FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents,

NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association, CBS Television Network Affiliates, Center for the Creative Community, Inc., doing business as Center for Creative Voices in Media, Inc., ABC Television Affiliates Association, Intervenors.

Nos. 06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).

United States Court of Appeals, Second Circuit.

June 4, 2007

Argued: December 20, 2006

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Carter G. Phillips, Sidley Austin LLP, Washington D.C. (R. Clark Wadlow, James P. Young, Jennifer Tatel, David S. Petron, Sidley Austin LLP, Washington D.C. on the brief) for Petitioner Fox Television Stations, Inc. and Intervenor FBC Television Affiliates Association.

Eric D. Miller, Deputy General Counsel, for Samuel L. Feder, General Counsel, Federal Communications Commission, Washington D.C. (Matthew B. Berry, Daniel Armstrong, Jacob M. Lewis, Joseph R. Palmore, Federal Communications Commission and Jeffrey S. Bucholtz, Acting Assistant Attorney General, Thomas M. Bondy, Department of Justice, Washington D.C. on the brief) for Respondents.

Ellen S. Agress, Maureen A. O'Connell, Fox Television Stations, New York, NY for Petitioner Fox Television Stations, Inc.

Robert Corn-Revere, Ronald G. London, Amber L. Husbands, David M. Shapiro, Davis Wright Tremaine LLP, and Lee Levine, Levine Sullivan Koch & Schulz L.L.P., Washington D.C. for Petitioner'/Intervenor1 CBS Broadcasting Inc.

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Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Travis D. Lenkner, Gibson, Dunn, and Crutcher LLP, Washington D.C; Richard Cotton, Susan Weiner, NBC Universal, Inc., New York, NY; and F. William LeBeau, NBC Universal, Inc. and NBC Telemundo License Co., Washington D.C. for Intervenors NBC Universal, Inc. and NBC Telemundo License Co.

Andrew J. Schwartzman, Parul P. Desai, Media Access Project, Washington D.C. for Intervenor Center for Creative Voices in Media.

Marjorie Heins, Brennan Center for Justice, Free Expression Policy Project, New York, NY for Amici Curiae Brennan Center for Justice, American Civil Liberties Union, New York Civil Liberties Union, National Coalition Against Censorship, First Amendment Project, PEN American Center, American Booksellers Foundation for Free Expression, Writers Guild of America West, Directors Guild of America, Screen Actors Guild, American Federation of Television and Radio Artists, Writers Guild of America East, Minnesota Public Radio/American Public Media, National Federation of Community Broadcasters, Film Arts Foundation, Re:New Media, National Alliance for Media Arts and Culture, International Documentary Association, Working Films, and the Creative Coalition in support of Petitioners.

John B. Morris, Jr., Sophia Cope, Center for Democracy & Technology and Adam D. Thierer, The Progress & Freedom Foundation, Washington D.C. for Amici Curiae Center for Democracy & Technology and Adam Thierer, Senior Fellow with The Progress & Freedom Foundation ("PFF") and the Director of PFF's Center for Digital Media Freedom in support of Petitioners.

Henry Geller, Washington D.C. and Glen O. Robinson, University of Virginia School of Law, Charlottesville, VA, for Amici Curiae Former FCC Officials in support of Petitioners.

Robert R. Sparks, Jr., Sparks & Craig, LLP, McLean Virginia, for Amicus Curiae Parents Television Council in support of Respondents.

Robert W. Peters, Robin S. Whitehead, Morality in Media, Inc., New York, NY, for Amicus Curiae Morality in Media, Inc. in support of Respondents.

Thomas B. North, St. Ignace, MI, for Amicus Curiae Thomas B. North, Judge of Probate, Sixth Probate Court of Michigan, in support of Respondents.

Before: LEVAL, POOLER, and HALL, Circuit Judges.

POOLER, Circuit Judge

Fox Television Stations, Inc., along with its affiliates FBC Television Affiliates Association (collectively "Fox"), petition for review of the November 6, 2006, order of the Federal Communications Commission ("FCC") issuing notices of apparent liability against two Fox broadcasts for violating the FCC's indecency and profanity prohibitions.2 Fox, along with other broadcast networks and numerous amici, raise administrative, statutory, and constitutional challenges to the FCC's indecency regime. The FCC, also supported by several amici, dispute each of these challenges. We find that the FCC's new policy regarding "fleeting expletives" represents a significant departure from positions previously

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taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion. Because we vacate the FCC's order on this ground, we do not reach the other challenges to the FCC's indecency regime raised by petitioners, intervenors, and amici.


The FCC's policing of "indecent" speech stems from 18 U.S.C. § 1464, which provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." The FCC's authority to regulate the broadcast medium is expressly limited by Section 326 of the Communications Act, which prohibits the FCC from engaging in censorship. See 47 U.S.C. § 326. In 1960, Congress authorized the FCC to impose forfeiture penalties for violations of Section 1464. See 47 U.S.C. § 503(b)(1)(D). The FCC first exercised its statutory authority to sanction indecent (but non-obscene) speech in 1975, when it found Pacifica Foundation's radio broadcast of comedian George Carlin's "Filthy Words" monologue indecent and subject to forfeiture. See Citizen's Complaint Against Pacifica Found. Station WBAI(FM), N.Y, N.Y., 56 F.C.C.2d 94 (1975). True to its title, the "Filthy Words" monologue contained numerous expletives in the course of a 12-minute monologue broadcast on the radio at 2:00 in the afternoon. In ruling on this complaint, the FCC articulated the following description of "indecent" content:

[T]he concept of 'indecent' is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience. Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions, and we believe that such words are indecent within the meaning of the statute and have no place on radio when children are in the audience.

Id. at ¶ 11 (internal footnote omitted).

Pacifica appealed the FCC's order to the Court of Appeals for the D.C. Circuit. While that appeal was pending, the FCC issued a "clarification" order in which it specifically noted that its prior order was intended to address only the particular facts of the Carlin monologue as broadcast, and acknowledged the concern that "in some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing." 'Petition for Clarification or Reconsideration' of a Citizen's Complaint against Pacifica Foundation. Station WBAI(FM). N.Y., N.Y., 59 F.C.C. 2d 892, at ¶ 4 n. l (1976) ("Pacifica Clarification Order"). The FCC stated that in such a situation, "we believe that it would be inequitable for us to hold a licensee responsible for indecent language." Id.

Although acknowledging the FCC's additional clarification, the D.C. Circuit nevertheless concluded that the FCC's indecency regime was invalid. See Pacifica Found, v. FCC, 556 F.2d 9 (D.C. Cir. 1977). Labeling the Commission's actions censorship,

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the court found the FCC's order both vague and overbroad, noting that it would prohibit "the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible." Id. at 14.

The Commission appealed this decision to the Supreme Court, which reversed in a plurality opinion. In its brief to the Supreme Court, the FCC stressed that its ruling was a narrow one applying only to the specific facts of the Carlin monologue. See Br. of FCC at 41-49, FCC v. Pacifica Found., No. 77-528 (U.S. Mar. 3, 1978), available at 1978 WL 206838. The Court took the Commission at its word and confined its review to the specific question of whether the Commission could find indecent the Carlin monologue as broadcast. See FCC v. Pacifica Found., 438 U.S. 726, 732-35, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The Court first rejected Pacifica's statutory argument that "indecent" in Section 1464 could not be read to cover speech that admittedly did not qualify as obscenity. Id. at 739, 98 S.Ct. 3026. Finding that obscene, indecent, and profane have distinct meanings in the statute, the Court held that the FCC is permitted to sanction speech without showing that it satisfied the elements of obscenity.

Id. at 739-41, 98 S.Ct....

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