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FCC V. CBS Corp., 556 U.S

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FCC V. CBS Corp., 556 U.S No. 11-1240 In the Supreme Court of the United States FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITIONERS v. CBS CORPORATION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR A WRIT OF CERTIORARI DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Acting Assistant Attorney General AUSTIN C. SCHLICK MALCOLM L. STEWART General Counsel Deputy Solicitor General PETER KARANJIA JOSEPH R. PALMORE Deputy General Counsel Assistant to the Solicitor JACOB M. LEWIS General Associate General Counsel THOMAS M. BONDY C. GREY PASH, JR. Attorney Counsel Department of Justice Federal Communications Washington, D.C. 20530-0001 Commission [email protected] Washington, D.C. 20554 (202) 514-2217 QUESTION PRESENTED Whether the Federal Communications Commission acted arbitrarily and capriciously under the Administra­ tive Procedure Act, 5 U.S.C. 551 et seq., in determining that a widely viewed television broadcast of public nu­ dity fell within federal prohibitions on broadcast inde­ cency. (I) PARTIES TO THE PROCEEDING Petitioners are the Federal Communications Com­ mission and the United States of America. Respondents are CBS Corporation, CBS Broadcast­ ing, Inc., CBS Television Stations, Inc., CBS Stations Group of Texas L.P., and KUTV Holdings, Inc. (II) TABLE OF CONTENTS Page Opinions below........................................ 1 Jurisdiction........................................... 2 Statutes and regulations involved........................ 2 Statement ............................................ 2 Reasons for granting the petition....................... 13 Conclusion .......................................... 18 Appendix A – Opinion of the court of appeals (Nov. 2, 2011) ........................ 1a Appendix B – Order on reconsideration (May 4, 2006) ...................... 112a Appendix C – Forfeiture order (Feb. 21, 2006) ........ 152a Appendix D – Sur petition for rehearing with sug­ gestion for rehearing in banc (Jan. 18, 2012) ...................... 213a Appendix E – Statutory provisions .................. 215a TABLE OF AUTHORITIES Cases: ABC, Inc. v. FCC, 404 Fed. Appx. 530 (2d Cir. 2011), cert. granted, No. 10-1293 (argued Jan. 10, 2012) ..... 8 Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996) .... 2 Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir. 2004) .......................................... 15 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) .......................................... 14 Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) .......... 15 (III) IV Cases–Continued: Page Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94 (1975), clarified, 59 F.C.C.2d 892 (1976), rev’d, Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977), rev’d, 438 U.S. 726 (1978) ....................................... 3 Complaints Against Various Broad. Licensees Re- garding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 497 (2004) ...... 5, 6, 11 Complaints Against Various Television Licensees Concerning Their Feb. 25, 2003 Broad. of the Program “NYPD Blue,”, 23 F.C.C.R. 3147 (2008), vacated, ABC, Inc. v. FCC, 404 Fed. Appx. 530 (2d Cir. 2011), cert. granted, No. 10-1293 (argued Jan. 10, 2012) ........................... 7, 8 Complaints Against Various Television Licen- sees Concerning Their Feb. 1, 2004, Broad. of the XXXVIII Super Bowl Halftime Show, 19 F.C.C.R. 19,230 (2004) .......................... 9 Complaints Regarding Various Television Broads. Between Feb. 2, 2002 and Mar. 8, 2005, 21 F.C.C.R. 13,299 (2006), vacated, Fox Tele- vision Stations, Inc. v. FCC, 489 F.3d 444 (2007), rev’d, 556 U.S. 502 (2009) ........................ 6, 7 FCC v. Fox Television Stations, Inc.: 131 S. Ct. 3065 (2011) ............................. 8 556 U.S. 502 (2009) .................... 6, 7, 12, 16, 17 FCC v. Pacifica Found., 438 U.S. 726 (1978) ............ 3 V Cases—Continued: Page Fox Television Stations, Inc. v. FCC: 613 F.3d 317 (2d Cir. 2010), cert. granted, No. 10-1203 (argued Jan. 10, 2012) ............... 7 489 F.3d 444 (2d Cir. 2007), rev’d, 556 U.S. 502 (2009) ........................................ 6 Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930 (1987), aff’d in pertinent part, Action for Children’s Tele- vision v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) ......... 3 Pacifica Found., Inc., 2 F.C.C.R. 2698, recons. granted in part, Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930 (1987), aff’d in pertinent part, Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) .............. 4, 6, 15, 16 Constitution, statutes and regulations: U.S. Const. Amend. I................................ 3 Administrative Procedure Act, 5 U.S.C. 551 et seq. ...... 6 Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954 ...................... 2 18 U.S.C. 1464 ...................................... 2 47 U.S.C. 307....................................... 2 47 U.S.C. 309(k) .................................... 2 47 U.S.C. 503(b)(1)(B) ............................... 2 47 U.S.C. 503(b)(1)(D) (Supp. IV 2010) ................. 2 47 C.F.R. 73.3999(b) ................................. 2 VI Miscellaneous: Page Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Poli- cies Regarding Broad. Indecency, 16 F.C.C.R. 7999 (2001) .................................... 4, 5 In the Supreme Court of the United States No. 11-1240 FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITIONERS v. CBS CORPORATION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Solicitor General, on behalf of the Federal Commu­ nications Commission and the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a­ 111a) is reported at 663 F.3d 122. The orders of the Federal Communications Commission (App., infra, 112a-151a, 152a-212a) are reported at 21 F.C.C.R. 6653 and 21 F.C.C.R. 2760, respectively. (1) 2 JURISDICTION The judgment of the court of appeals was entered on November 2, 2011. A petition for rehearing was denied on January 18, 2012 (App., infra, 213a-214a). The juris­ diction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED Relevant statutory and regulatory provisions are set out in the appendix to this petition. App., infra, 215a­ 218a. STATEMENT 1. a. Federal law has long prohibited the broadcast of “obscene, indecent, or profane language by means of radio communication.” 18 U.S.C. 1464. In 1992, Con­ gress supplemented that prohibition by directing the Federal Communications Commission (FCC or Com­ mission) to “promulgate regulations to prohibit the broadcasting of indecent programming” during certain times of the day. Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954; see Ac- tion for Children’s Television v. FCC, 58 F.3d 654, 669­ 670 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). The FCC’s rules currently prohibit licens­ ees of radio and television stations from broadcasting “any material which is indecent” between the hours of “6 a.m. and 10 p.m.” 47 C.F.R. 73.3999(b). The Commis­ sion does not regulate indecent broadcasts outside that time period. The FCC has authority to enforce the broadcast-indecency prohibition by, inter alia, im­ posing civil forfeitures, see 47 U.S.C. 503(b)(1)(B); 47 U.S.C. 503(b)(1)(D) (Supp. IV 2010), or taking viola­ tions into account during license-renewal proceedings, see 47 U.S.C. 307; 47 U.S.C. 309(k). 3 b. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the FCC applied its indecency regime to a mid­ day radio broadcast of George Carlin’s monologue “Filthy Words.” Responding to a listener complaint, the Commission determined that the broadcast violated Sec­ tion 1464. Id. at 730-732. This Court held that the Com­ mission’s enforcement action was consistent with the First Amendment. Id. at 748-750. c. For several years after Pacifica, the FCC en­ forced the indecency prohibition only against “material that closely resembled the George Carlin monologue,” that is, material that “involved the repeated use, for shock value, of words similar or identical to those” used by Carlin. Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930, 930 ¶ 4 (1987) (Infinity Reconsideration Order). In 1987, however, the Commission determined that such a “highly restricted enforcement standard * * * was unduly narrow as a matter of law” because it “focus[ed] exclusively on specific words rather than the generic definition of indecency.” Id. at 930 ¶ 5. Accordingly, the Commission concluded that, in enforcing Section 1464, it would apply the generic indecency test articulated in Pacifica, that is, whether the material “describes, in terms patently offensive as measured by contempo­ rary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.” Id. at 930 ¶¶ 2, 5 (quoting Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94, 98 ¶ 11 (1975)). In making that change, the Commission recognized that “the question of whether material is patently offen­ sive requires careful consideration of context.” Infinity Reconsideration Order, 3 F.C.C.R. at 932 ¶ 16. Despite 4 its renewed emphasis on context, the Commission stated that “[i]f a complaint focuses solely on the use of exple­ tives, * * * deliberate and repetitive use * * * is a requisite to a finding of indecency.” Pacifica Found., Inc., 2 F.C.C.R. 2698, 2699 ¶ 13 (1987). In contrast, the Commission explained, when offensive material “goes beyond the use of expletives” and involves “the descrip­ tion or depiction of sexual or excretory functions,” “rep­ etition of specific words or phrases is not necessarily an element critical to a determination of indecency.” Ibid.
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