Action for Children's Television v. F.C.C.

• Decision Date: 29 July 1988
• Docket Number: No. 88-1064,88-1064
• Parties: , 15 Media L. Rep. 1907 ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Monroe Communications Corporation, Media Central, Inc., et al., American Civil Liberties Union Foundation, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1332

852 F.2d 1332

271 U.S.App.D.C. 365, 15 Media L. Rep. 1907

ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

Monroe Communications Corporation, Media Central, Inc., et

al., American Civil Liberties Union Foundation, et

al., Intervenors.

No. 88-1064.

United States Court of Appeals, District of Columbia Circuit.

Argued June 1, 1988.

Decided July 29, 1988.

As Amended July 29, 1988.

Timothy B. Dyk, with whom Teresa D. Baer, Henry Geller, Donna Lampert, J. Laurent Scharff, Robert J. Aamoth, Rainer K. Kraus, Steven A. Lerman, Dennis P. Corbett, Laura B. Humphries, Michael R. Klipper, Jan G. Levine, Henry L. Baumann, Steven A. Bookshester, Howard Monderer, Molly Pauker, Lois Schiffer, Karen Christensen, Arthur B. Goodkind, Andrew Jay Schwartzman, Jonathan D. Blake, Janet E. Milne, Paula A. Jameson, Nancy H. Hendry, Jane E. Kirtley, and Henry S. Hoberman, Washington, D.C., were on the brief for petitioners. Mary C. Lyons, Washington, D.C., also entered an appearance for petitioners.

Diane S. Killory, General Counsel, F.C.C., with whom Daniel M. Armstrong, Associate Gen. Counsel, Sue Ann Preskill, Counsel, F.C.C., Catherine G. O'Sullivan and Andrea Limmer, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents. John J. Powers, III, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.

C. Edwin Baker, John A. Powell, Paul L. Hoffman, Los Angeles, Cal., Edward de Grazia, New York City, and Ira M. Lowe, Washington, D.C., were on the joint brief of intervenors, American Civil Liberties Union Foundation, and National Federation of Community Broadcasters and amici curiae Pen American Center and Allen Ginsberg.

Harry F. Cole, Washington, D.C., was on the brief for intervenor Monroe Communications Corp.

Bruce A. Taylor was on the brief for amici curiae, Morality in Media, Inc. and Citizens for Decency Through Law, Inc.

Tom W. Davidson and Margaret L. Tobey, Washington, D.C., entered appearances Before ROBINSON, RUTH BADER GINSBURG, and SENTELLE, Circuit Judges.

for intervenor Media Central, Inc., et al.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In these three cases, the Federal Communications Commission (FCC or Commission) readdressed the subject, earlier aired in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (Pacifica ), of indecent language in radio broadcasts. The Commission decided that the enforcement standard it had employed from 1975 until 1987 was unduly narrow. It therefore declared in these cases a changed standard, one concededly more difficult to administer. ¹

We uphold the generic definition the FCC has determined to apply, case-by-case, in judging indecency complaints, but we conclude that the Commission has not adequately justified its new, more restrictive channeling approach, i.e., its curtailment of the hours when nonobscene programs containing indecent speech may be broadcast. Two of the three cases before us involve programs aired after 10:00 p.m. One involves a show aired 6:00-10:00 a.m. Observing that the FCC, mindful of the licensee's reliance on prior Commission rulings, imposed no sanctions, we affirm the Commission's declaratory warning order regarding the show aired 6:00-10:00 a.m. We vacate the FCC's orders regarding the post 10:00 p.m. broadcasts and remand those cases to the Commission with instructions to reopen the time limitation or channeling aspect of the rulings for fresh decision on a full record and in a manner sensitive to these considerations: (1) the speech at issue, as the FCC has acknowledged, is protected by the first amendment; (2) the Commission's avowed objective is not to establish itself as censor but to assist parents in controlling the material young children will hear.

I.

Petitioners in this case are commercial broadcasting networks, public broadcasting entities, licensed broadcasters, associations of broadcasters and journalists, program suppliers, and public interest groups; they seek review of a December 1987 FCC order which affirmed, on reconsideration, three April 1987 rulings, ² and announced a new gauge for administering the restraint, imposed by 18 U.S.C. Sec. 1464 (1982), ³ on the use of indecent language in radio communications. The Commission also warned broadcasters that "10:00 p.m. can no longer be considered the hour after which indecent programming may be aired"; instead, 12:00 midnight is the FCC's "current thinking" on "a reasonable delineation point." In re Infinity Broadcasting Corp. of Pennsylvania, 64 Rad.Reg.2d (P & F) 211, 219 n. 47 (1987) (Reconsideration Order ).

Petitioners maintain that the FCC's broadened indecency enforcement standard is facially invalid because unconstitutionally vague. Intervenors American Civil Liberties Union Foundation (ACLU), et al. present a second facial challenge: the FCC's mode of stamping material indecent, they contend, is substantially overbroad. Petitioners also urge that the Commission's action is arbitrary and capricious because the change in regulatory course was not Adhering to the view that broadcast material that is indecent but not obscene may be channeled to certain times of day, but not proscribed entirely, ⁴ the FCC indicated in its Reconsideration Order that 12:00 midnight to 6:00 a.m. would be "safe harbor" hours for such material. 64 Rad.Reg.2d at 217, 219 n. 47. Petitioners, joined by intervenors ACLU et al., contend that this time restraint, stretching to all but the hours most listeners are asleep, lacks record support and, in violation of the first amendment, effectively denies adults access to constitutionally-protected material.

accompanied by the requisite "reasoned analysis."

We hold that the FCC adequately explained why it decided to change its enforcement standard. Consideration of petitioners' vagueness challenge, we conclude, is not open to lower courts, in view of the Supreme Court's 1978 Pacifica decision. Intervenors' overbreadth plea, we rule, is not effective argument to the extent that it attacks the FCC's generic definition of indecent material.

We further hold, however, that the FCC failed to adduce evidence or cause, particularly in view of the first amendment interest involved, sufficient to support its hours restraint; consequently, we vacate two of the FCC's declaratory orders and remand for reconsideration of the times at which programs containing indecent material may be broadcast.

II.

In 1978, in Pacifica, the Supreme Court upheld the FCC's authority to regulate a radio broadcast that is indecent but not obscene. The Court ruled that 47 U.S.C. Sec. 326 (1982), which forbids FCC "censorship," does not deny the Commission power "to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting." 438 U.S. at 738, 98 S.Ct. at 3034. The Court concluded that the specific broadcast material in question in Pacifica --a recording of a George Carlin monologue titled "Filthy Words"--was indecent within the meaning of section 1464. In so ruling, the court rejected the broadcaster's objection that the definition of indecent material must include the element of prurient appeal. Id. at 741, 98 S.Ct. at 3036. On narrow grounds, the Court held that the FCC order under review in Pacifica did not transgress constitutional limits; the first amendment, according to the Court, did not proscribe the Commission's case-specific determination that the Carlin monologue was subject to regulation because his performance, captured on a record, was "indecent as broadcast." Id. at 734, 750, 98 S.Ct. at 3032, 3040.

In the Commission's 1975 Pacifica order, 56 F.C.C.2d 94 (1975), the FCC stated that "to avoid the error of overbreadth," it was important to be "explicit" about "whom we are protecting and from what"; the Commission then advanced this definition of "the concept of 'indecent' " in relation to broadcast material: "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." Id. at 98 (also reiterating that regulation is in order only "at times of the day when there is a reasonable risk that children may be in the audience"). At the start of its 1975 opinion, the FCC had announced: "We review the applicable legal principles and clarify the standards which will be utilized in considering the public's complaints about the broadcast of 'indecent' language." Id. at 94. On reconsideration, 59 F.C.C.2d 892 (1976), however, the Commission retrenched and stressed that its Pacifica ruling was made "in a specific factual context"; the Commission therefore declined to "comment on the various hypothetical situations posed by [petitioner Radio Television News Directors Association]." Id. at 893.

Following the Supreme Court's narrow affirmance of the Commission's 1975 Pacifica order, see 438 U.S. at 750, 98 S.Ct. at 3040, the FCC consistently reported that it would not essay expansive interpretation of the indecency concept. See, e.g., In re Application of WGBH Educ. Found., 69 F.C.C.2d 1250, 1254 (1978):

[Pacifica ] affords this Commission no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station. We intend strictly to observe the narrowness of the Pacifica holding. In this regard, the Commission's opinion, as approved by the Court, relied in part on the repetitive occurrence of the "indecent" words in question.

Repetitious use of Carlin's "seven dirty words" effectively became the FCC's yardstick for "indecency," and broadcasts after 10:00 p.m. were deemed not actionable. See Brief for Respondents at 7. No broadcasts were in fact found actionable after 1975, until the instant rulings....