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

• Decision Date: 28 August 1991
• Docket Number: No. 88-1916,88-1916
• Citation: 932 F.2d 1504
• Parties: , 59 USLW 2720, 18 Media L. Rep. 2153 ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Children's Legal Foundation, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1504

932 F.2d 1504

290 U.S.App.D.C. 4, 59 USLW 2720, 18

Media L. Rep. 2153

ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Children's Legal Foundation, et al., Intervenors.

No. 88-1916.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 28, 1991.

Decided May 17, 1991.

Rehearing and Rehearing En Banc Denied Aug. 28, 1991.

Petition for Review of an Order of the Federal Communications Commission.

Timothy B. Dyk, for petitioner and for Capital Cities/ABC, Inc., and CBS, Inc., with whom Henry Geller and Donna Lampert, for Action for Children's Television, John A. Powell and C. Edwin Baker, for American Civ. Liberties Union, James Popham, for Ass'n of Independent Television Stations, Inc., Steven A. Lerman, Dennis P. Corbett, and Laura B. Humphries, for Infinity Broadcasting Corp., Fritz E. Attaway, for Motion Picture Ass'n of America, Inc., Henry L. Baumann and Stephen A. Bookshester, for Nat. Ass'n of Broadcasters, Howard Monderer, for Nat. Broadcasting Co., Inc., Theodore A. Miles and Karen Christensen, for Nat. Public Radio, Andrew Jay Schwartzman and Jan G. Levine, for People for the American Way, Jonathan D. Blake, for Post-Newsweek Stations, Inc., Paula A. Jameson and Nancy H. Hendry, for Public Broadcasting Service, J. Laurent Scharff, for Radio-Television News Directors Ass'n, Jane E. Kirtley, for The Reporters Committee for Freedom of the Press, and Bruce W. Sanford, for Soc. of Professional Journalists, were on the joint brief, for petitioners Action for Children's Television, et al. Molly Pauker, for Nat. Broadcasting Co., Inc., Lois Schiffer, for Nat. Public Radio, Martin Wald and Janet E. Milne, for Post-Newsweek Stations, Inc., and James M. Smith, for Radio-Television News Directors Ass'n, also entered appearances for petitioners.

Eric M. Lieberman, with whom John Crigler, William J. Byrnes, and Edward de Grazia, were on the brief, for petitioner The Pacifica Foundation and intervenors PEN American Center, Allen Ginsberg, et al.

Robert L. Pettit, Gen. Counsel, F.C.C., with whom Daniel M. Armstrong, Associate Gen. Counsel, Jane E. Mago, Sue Ann Preskill, and Laurence N. Bourne, Counsel, F.C.C., and Barbara L. Herwig and Jacob M. Lewis, Attys., Dept. of Justice, were on the brief, for respondents.

James P. Mueller, for Children's Legal Foundation and American Family Ass'n, Peggy M. Coleman, for American Family Ass'n and Paul J. McGeady, for Morality in Media, Inc., were on the joint brief, for intervenors and amicus curiae.

Before MIKVA, Chief Judge, and EDWARDS and THOMAS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

This case presents constitutional challenges to a Federal Communications Commission ("FCC" or "the Commission") order, promulgated at the direction of Congress, barring all radio and television broadcasts of "indecent" material. We believe that the disposition of this case is governed by our prior decision in Action for Children's Television v. Federal Communications Commission, 852 F.2d 1332 (D.C.Cir.1988), in which we rejected vagueness and overbreadth challenges to the Commission's definition of indecency but found that the Commission's curtailment of "safe harbor" broadcast periods impermissibly intruded on constitutionally protected expression interests. Accordingly, we grant the petition for review.

I.

The particulars of this case are best understood within the history of government efforts to regulate the broadcast of indecent material. Since 1927, federal law has prohibited the broadcast of "any obscene, indecent, or profane language." 18 U.S.C. Sec. 1464 (1988); see also Radio Act of 1927, Sec. 29, 44 Stat. 1172 (1927) (original prohibition against utterance of "obscene, indecent, or profane language"). In 1975, the Commission essayed to "authoritatively contrue[ ]" the term "indecent" and to distinguish it from the modern definition of obscenity, as formulated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See Pacifica Found., 56 F.C.C.2d 94, 97 (1975). The Commission defined indecency as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs," and emphasized that its primary regulatory interest lay in protecting children from "language which most parents regard as inappropriate for them to hear." Id. at 98. The Supreme Court upheld the Commission's finding that a radio station's afternoon broadcast of a George Carlin comedy monologue entitled "Filthy Words" was indecent under section 1464. See Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726, 738-41, 98 S.Ct. 3026, 3034-36, 57 L.Ed.2d 1073 (1978).

The Commission, by its own account, subsequently "took a very limited approach to enforcing the prohibition against indecent broadcasts." In re Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Rcd 930 (1987) [hereinafter Reconsideration Order ]. The Commission essentially restricted its enforcement efforts to material broadcast before 10:00 p.m. that involved "the repeated use, for shock value, of words similar or identical to those satirized in the Carlin 'Filthy Words' monologue." Id. at 930. Between 1975 and 1987, no broadcasts at all were found actionable under this narrow prohibition. See id.

By 1987, however, the Commission had concluded that "the highly restrictive enforcement standard employed after the 1975 Pacifica decision was unduly narrow as a matter of law and inconsistent with our enforcement responsibilities under Section 1464." Id. Returning to the generic definition of indecency it had developed in Pacifica, the Commission issued three rulings declaring material that would not have violated the "Filthy Words" test to be indecent. See Pacifica Found., 2 FCC Rcd 2698 (1987); The Regents of the Univ. of California, 2 FCC Rcd 2703 (1987); Infinity Broadcasting Corp. of Pennsylvania, 2 FCC Rcd 2705 (1987); see also New Indecency Enforcement Standards to be Applied to All Broadcast and Amateur Radio Licensees, 2 FCC Rcd 2726 (1987) (summarizing Commission policies). Significantly, two of the cited broadcasts had aired after 10:00 p.m., the time period previously identified by the Commission as a "safe harbor" during which the risk of children in the broadcast audience was thought to be minimal. See id. at 2726. On reconsideration, the Commission affirmed its warnings with respect to the three broadcasts and noted, in response to requests for more specific rules regarding time channeling, that 12:00 midnight was its "current thinking" as to when the risk of children in the broadcast audience could reasonably be thought minimized. See Reconsideration Order, 3 FCC Rcd at 934, 937 n. 47.

Reviewing the Commission's order, we first rejected petitioners' vagueness and overbreadth challenges to the Commission's generic definition of indecency. See Action for Children's Television v. FCC, 852 F.2d 1332, 1338-40 (D.C.Cir.1988) [hereinafter ACT I ]. However, we vacated the Commission's rulings that the two post-10:00 p.m. broadcasts were indecent. In addition to calling the Commission's findings "more ritual than real" and its underlying evidence "insubstantial," Id. at 1341-42, we opined that a "reasonable safe harbor rule" was constitutionally mandated. Id. at 1343 n. 18. Accordingly, we instructed the Commission to determine on remand, "after a full and fair hearing, ... the times at which indecent material may be broadcast." Id. at 1344.

Before the Commission could carry out this court's mandate, Congress intervened. On October 1, 1988, two months after the ACT I decision issued, the President signed into law a 1989 appropriations bill containing the following rider:

By January 31, 1989, the Federal Communications Commission shall promulgate regulations in accordance with section 1464, title 18, United States Code, to enforce the provisions of such section on a 24 hour per day basis.

Pub.L.No. 100-459, Sec. 608, 102 Stat. 2228 (1988) (emphasis added). Concluding that "[t]he directive of the appropriations language affords us no discretion," the Commission promulgated a new rule pursuant to section 1464 prohibiting all broadcasts of indecent materials. See Enforcement of Prohibitions Against Broadcast Obscenity and Indecency in 18 U.S.C. Sec. 1464, 4 FCC Rcd 457 (1988) [hereinafter Order ], codified at 47 CFR Sec. 73.3999 (1990) (restrictions on the transmission of obscene or indecent language). The Commission also "abandon[ed its] plans to initiate a proceeding in response to the concerns raised by" the ACT I panel. Order, 4 FCC Rcd at 457.

A panel of this court granted petitioners' motion to stay enforcement of the ban pending judicial review. See Action for Children's Television v. FCC, No. 88-1916 (D.C.Cir. Jan. 23, 1989). Six months later, while briefing on the validity of the Commission's order was underway in this court, the Supreme Court issued an opinion finding a blanket ban on indecent commercial telephone message services unconstitutional. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Believing that Sable left open the possibility that indecent broadcasts may be proscribed if the Commission could prove that no less restrictive measure would effectuate the government's compelling interests, the Commission sought and obtained a remand from this court in order to assemble the relevant data supporting a total ban. Action for Children's Television v. FCC, No. 88-1916 (D.C.Cir. Sept. 13, 1989) (remanding record to the FCC for a "full and fair hearing on the issue of the propriety of indecent broadcasting").

The Commission subsequently solicited public comments on the validity of a total ban on broadcast indecency. See Enforcement of Prohibitions Against Broadcast...