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Supreme Court of the United States No. 10-1293 IN THE Supreme Court of the United States FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Petitioners, v. FOX TELEVISION STATIONS, INC., ET AL., Respondents. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Petitioners, v. ABC, INC., ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF IN OPPOSITION FOR RESPONDENTS ABC, INC.; KTRK TELEVISION, INC.; AND WLS TELEVISION, INC. JOHN W. ZUCKER SETH P. WAXMAN ABC, INC. Counsel of Record 77 West 66th Street PAUL R.Q. WOLFSON New York, N.Y. 10023 DANIEL S. VOLCHOK (212) 456-7387 MICAH S. MYERS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue N.W. Washington, D.C. 20006 (202) 663-6000 [email protected] QUESTION PRESENTED Whether the Federal Communications Commis- sion’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution. (i) RULE 29.6 STATEMENT ABC, Inc. is an indirect, wholly owned subsidiary of The Walt Disney Company, a publicly traded corpo- ration. KTRK Television, Inc. and WLS Television, Inc. are indirect, wholly owned subsidiaries of ABC, Inc. (ii) TABLE OF CONTENTS Page QUESTION PRESENTED...............................................i RULE 29.6 STATEMENT................................................ii TABLE OF AUTHORITIES ..........................................iv STATEMENT .....................................................................1 ARGUMENT.......................................................................7 I. THIS COURT’S REVIEW IS UNWARRANTED ..............7 A. The Second Circuit’s Vagueness Hold- ing Is A Correct And Straightforward Application Of This Court’s Precedent..............9 1. The FCC’s Current Enforcement Of §1464 Is Vague And Has A Se- vere Chilling Effect .......................................9 2. Petitioners’ Arguments Regarding The Second Circuit’s Vagueness Ruling Lack Merit .......................................16 B. The Second Circuit’s Decisions Do Not Conflict With Pacifica Or The D.C. Cir- cuit’s ACT Cases .................................................22 C. The Second Circuit’s Judgment Is Cor- rect Independent Of Its Vagueness Analysis ................................................................25 D. Petitioners Greatly Overstate The Con- sequences Of The Second Circuit’s Rul- ing..........................................................................32 II. IF CERTIORARI IS GRANTED, THE QUES- TION PRESENTED SHOULD ENCOMPASS ALL AVAILABLE GROUNDS FOR AFFIRMANCE ..............34 CONCLUSION .................................................................34 (iii) iv TABLE OF AUTHORITIES CASES Page(s) Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) ......................24, 26, 28 Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) ..................................24 Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc) ...............24, 29 Ashcroft v. ACLU, 542 U.S. 656 (2004)..........................26 Baggett v. Bullitt, 377 U.S. 360 (1964) .............................. 15 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (2009). ............................................................ 3 Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................................30 Cohen v. California, 403 U.S. 15 (1971) .........................19 Consumer Electronics Ass’n v. FCC, 347 F.3d 291 (D.C. Cir. 2003) ...........................................31 Denver Area Educational Telecommuni- cations Consortium, Inc. v. FCC, 518 U.S. 727 (1996) ..........................................26, 27, 29, 30 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .....................................................................28 FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009) .................................17, 18, 23, 29-32 FCC v. League of Women Voters of Cali- fornia, 468 U.S. 364 (1984) ..................................27, 31 v TABLE OF AUTHORITIES—Continued Page(s) FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ..................................................1, 2, 17, 23, 28, 29 Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010).................................................7 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) .....................................................................9 Ginsberg v. New York, 390 U.S. 629 (1968) ...................28 Gooding v. Wilson, 405 U.S. 518 (1972)..........................14 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ..................................................18, 19 NAACP v. Button, 371 U.S. 415 (1963)............................ 16 NBC, Inc. v. United States, 319 U.S. 190 (1943) ............................................................................30 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) ......................................................29, 30 Reno v. ACLU, 521 U.S. 844 (1997)......2, 9, 10, 12, 26, 27 Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989) ......................2, 23, 26, 27 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ...............................................14, 29 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)....................14, 26-28 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................................................................9, 16 Yeager v. United States, 129 S. Ct. 2360 (2009) ............................................................................25 vi TABLE OF AUTHORITIES—Continued Page(s) DOCKETED CASES United States v. Fox Television Stations, Inc., No. 08-cv-584 (D.D.C.)......................................25 STATUTES AND REGULATIONS 18 U.S.C. §1464 ....................................................................1 47 U.S.C. §223 (2003) ...................................................................10 §503...........................................................................1, 15 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56...................................................26 47 C.F.R. §73.3999 .........................................................7, 33 ADMINISTRATIVE DECISIONS Annual Assessment of the Status of Competi- tion in the Market for the Delivery of Video Programming, 24 F.C.C.R. 542 (2009)....................30 Citadel Broadcasting Co., 16 F.C.C.R. 11839 (2001) ............................................................................20 Complaint of Syracuse Peace Council Against Television Station WTVH Syracuse, New York, 2 F.C.C.R. 5043 (1987), aff’d, Syra- cuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) ...........................................................31 Complaints Against Various Television Licen- sees Regarding Their Broadcast on No- vember 11, 2004, of the ABC Television Network’s Presentation of the Film “Sav- ing Private Ryan,” 20 F.C.C.R. 4507 (2005) ..........13 vii TABLE OF AUTHORITIES—Continued Page(s) Complaints Regarding Various Television Broadcasts Between February 2, 2002 & March 8, 2005, 21 F.C.C.R. 2664 (2006), vacated and remanded, Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007), rev’d, 129 S. Ct. 1800 (2009) .....................................................11-13, 20, 21, 33 Implementation of Section 551 of the Tele- communications Act of 1996, 13 F.C.C.R. 8232 (1998) ...................................................................26 Implementation of the Child Safe Viewing Act, 24 F.C.C.R. 11413 (2009) .....................................26, 30 Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 & En- forcement Policies Regarding Broadcast Indecency, 16 F.C.C.R. 7999 (2001) ...................19, 20 Infinity Broadcasting Corp. of Pennsylvania, 2 F.C.C.R. 2705 (1987), reconsideration granted in part, Infinity Broadcasting Corp. of Pennsylvania, 3 F.C.C.R. 930 (1987), aff’d in part, vacated in part, and remanded, Action for Children’s Televi- sion v. FCC, 852 F.2d 1332 (D.C. Cir. 1988).............3 Infinity Broadcasting Corp. of Pennsylvania, 3 F.C.C.R. 930 (1987), aff’d in part, vacated in part, and remanded, Action for Chil- dren’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) .............................................................3 viii TABLE OF AUTHORITIES—Continued Page(s) Letter from David Molina to Norman Gold- stein, FCC File No. 97110028 (May 26, 1999) .......................................................................11, 20 Pacifica Foundation, Inc., 2 F.C.C.R. 2698 (1987), reconsideration granted in part, In- finity Broadcasting Corp. of Pennsyl- vania, 3 F.C.C.R. 930 (1987), aff’d in part, vacated in part, and remanded, Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) ....................................................3 Rusk Corp. Radio Station KLOL(FM), 5 F.C.C.R. 6332 (1990) ..................................................20 WPBN/WTOM License Subsidiary, Inc., 15 F.C.C.R. 1838 (2000) ..................................................20 OTHER AUTHORITIES Berresford, John. W., The Scarcity Rationale for Regulating Traditional Broadcasting (Mar. 2005), available at http://www.fcc. gov/ownership/materials/already-released/ scarcity030005.pdf (last visited May 23, 2011) .............................................................................31
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