No. In the Supreme Court of the United States FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITIONERS v. CBS CORPORATION, CBS BROADCASTING, INC., CBS TELEVISION STATIONS, INC., CBS STATIONS GROUP OF TEXAS L.P., AND KUTV HOLDINGS, INC. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT PETITION FOR A WRIT OF CERTIORARI GREGORY G. GARRE Solicitor General Counsel of Record GREGORY G. KATSAS Assistant Attorney General MALCOLM L. STEWART MATTHEW B. BERRY Deputy Solicitor General General Counsel ERIC D. MILLER JOSEPH R. PALMORE Assistant to the Solicitor Deputy General Counsel General JACOB M. LEWIS THOMAS M. BONDY Associate General Counsel Attorney Federal Communications Department of Justice Commission Washington, D.C. 20530-0001 Washington, D.C. 20554 (202) 514-2217 QUESTION PRESENTED Whether the court of appeals erred in holding that the Federal Communications Commission acted arbi- trarily and capriciously under the Administrative Pro- cedure Act, 5 U.S.C. 551 et seq., in determining that the most widely viewed broadcast of public nudity in televis- ion history fell within the federal prohibitions on broad- cast indecency. (I) TABLE OF CONTENTS Page Opinions below........................................ 1 Jurisdiction........................................... 2 Statutes and regulations involved........................ 2 Statement............................................ 2 Reasons for granting the petition....................... 13 A. The decision below is inconsistent with settled principles of deference to an agency’s reasonable interpretation of its own precedent ................ 14 B. The petition should be held pending this Court’s decision in Fox and disposed of as appropriate in light of that decision............................. 21 Conclusion .......................................... 24 Appendix A – Court of appeals opinion (July 21, 2008, as amended on Aug. 6, 2008) ............ 1a Appendix B – Order on Reconsideration (May 31, 2006) ................................ 83a Appendix C – Forfeiture Order (Mar. 15, 2006) ....... 123a Appendix D – Judgment (July 21, 2008) .............. 184a Appendix E – Statutory provisions involved.......... 186a TABLE OF AUTHORITIES Cases: Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996) ......................... 2 852 F.2d 1332 (D.C. Cir. 1988) ................... 4 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) .......................................... 15 (III) IV Cases—Continued: Page Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) .......... 15 Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), In re, 56 F.C.C.2d 94 (1975) ............ 3 Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) . 19 Complaints Against Various Broad. Licensees Regarding Their Airing of the “Golden Globe Awards” Program, In re, 19 F.C.C.R. 4975 (2004) . 6, 10 Complaints Against Various Television Licensees Concerning Their Feb. 1, 2004 Broad. of the XXXVIII Super Bowl Halftime Show, In re, 19 F.C.C.R. 19,230 (2004) .......................... 8 Complaints Regarding Various Television Broads. between Feb. 2, 2002 & Mar. 8, 2005, In re, 21 F.C.C.R. 13299 (2006) .......................... 6, 21 FCC v. Pacifica Found., 438 U.S. 726 (1978) ............ 3 Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007), cert. granted, No. 07-582 (argued Nov. 4, 2008) .................................. 6, 22 Infinity Broad. Corp., In re, 3 F.C.C.R. 930 (1987) .... 3, 4 Pacifica Found., Inc., In re, 2 F.C.C.R 2698 (1987) ..................................... 4, 15, 18 United States v. Martin, 746 F.2d 964 (3d Cir. 1984) .... 19 WGHB Educ. Found., In re, 69 F.C.C.2d 1250 (1978) . 19 WPBN/WTOM License Subsidiary, Inc., In re, 15 F.C.C.R. 1838 (2000) .......................... 18 Young Broad. of San Francisco, Inc., In re, 19 F.C.C.R. 1751 (2004) ..................... 8, 17, 18 V Constitution, statutes and regulations: Page U.S. Const. Amend. I................................ 3 Administrative Procedure Act, 5 U.S.C. 551 et seq. 6, 10 Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 954 ...................... 2 18 U.S.C. 1464 .................................... 2, 3 47 U.S.C. 307 (2000 & Supp. V 2005) ................... 3 47 U.S.C. 309(k) .................................... 3 47 U.S.C. 503(b)(1)(B) ............................... 2 47 U.S.C. 503(b)(1)(D) ............................... 2 47 C.F.R.: Section 0.445(e) ................................. 19 Section 73.3999(b) ................................ 2 Miscellaneous: Industry Guidance on the Comm’ns Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broad. Indecency, In re, 16 F.C.C.R. 7999 (2001) ................... 4, 5, 10, 16 The Broadcast Decency Act of 2004: Hearings on H.R. 3717 Before the Subcomm. on Telecomm. and the Internet of the House Comm. on Energy & Commerce, 108th Cong., 2d Sess. (2004) ........... 7 In the Supreme Court of the United States No. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITIONERS v. CBS CORPORATION, CBS BROADCASTING, INC., CBS TELEVISION STATIONS, INC., CBS STATIONS GROUP OF TEXAS L.P., AND KUTV HOLDINGS, INC. 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 Com- munications Commission and the United States of Amer- ica, respectfully petitions for a writ of certiorari to re- view the judgment of the United States Court of Ap- peals for the Third Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a- 82a) is reported at 535 F.3d 167. The orders of the Fed- eral Communications Commission (App., infra, 83a- 122a, 123a-183a) 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 (App., infra, 184a-185a) was entered on July 21, 2008. On October 9, 2008, Justice Souter extended the time within which to file a petition for a writ of certiorari to and including November 18, 2008. The jurisdiction of this Court is in- voked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED Pertinent provisions are set out in the appendix to this petition. App., infra, 186a-189a. STATEMENT 1. a. Federal law has long forbidden 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 Commis- sion) to “promulgate regulations to prohibit the broad- casting 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 Action 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 licensees 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 Commission does not regulate indecent broadcasts outside that time period. The FCC has authority to enforce the broadcast-inde- cency prohibition by, inter alia, imposing civil forfei- tures, see 47 U.S.C. 503(b)(1)(B) and (D), or taking vio- lations into account during license-renewal proceedings, 3 see 47 U.S.C. 307 (2000 & Supp. V 2005); 47 U.S.C. 309(k). b. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), this Court upheld the constitutionality of the FCC’s authority to regulate indecent broadcasting. At issue in Pacifica was the midday radio broadcast of George Carlin’s monologue “Filthy Words.” Responding to a listener complaint, the Commission determined that the broadcast violated Section 1464. Id. at 731-732. This Court held that the Commission’s enforcement ac- tion was consistent with the First Amendment. Id. at 749-750. c. For several years after Pacifica, the Commission enforced the indecency prohibition only against “mate- rial that closely resembled the George Carlin mono- logue,” that is, material that “involved the repeated use, for shock value, of words similar or identical to those” used by Carlin. In re Infinity Broad. Corp., 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 contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reason- able risk that children may be in the audience.” Id. at 930 ¶¶ 2, 5 (quoting In re Citizen’s Complaint Against Pacifica Found. Station WBAI (FM), 56 F.C.C.2d 94, 98 ¶ 11 (1975)). 4 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 its renewed emphasis on context, however, the Commis- sion stated that “[i]f a complaint focuses solely on the use of expletives * * * deliberate and repetitive use * * * is a requisite to a finding of indecency.” In re 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 in- volves “the description or depiction of sexual or excre- tory functions,” “repetition of specific words or phrases is not necessarily an element critical to a determination of indecency.” Ibid.