06-1760-ag(L) 06-2750-ag (Con), 06-5358-ag (Con) THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________________________________________________________ FOX TELEVISION STATIONS, INC., CBS BROADCASTING INC., WLS TELEVISION, INC., KTRK TELEVISION, INC., KMBC HEARST-ARGYLE TELEVISION, INC., ABC INC., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondents, NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO., NBC TELEVISION AFFILIATES, FBC TELEVISION AFFILIATES ASSOCIATION, CBS TELEVISION NETWORK AFFILIATES, CENTER FOR THE CREATIVE COMMUNITY, INC., DOING BUSINESS AS CENTER FOR CREATIVE VOICES IN MEDIA, INC., ABC TELEVISION AFFILIATES ASSOCIATION, Intervenors. ______________________________________________________________________ ON PETITIONS FOR REVIEW OF ORDERS OF THE FEDERAL COMMUNICATIONS COMMISSION ______________________________________________________________________ BRIEF OF PETITIONER FOX TELEVISION STATIONS, INC. ______________________________________________________________________ Ellen S. Agress Carter G. Phillips Maureen A. O’Connell R. Clark Wadlow FOX TELEVISION STATIONS, INC. Jennifer Tatel 1211 Avenue of Americas David S. Petron New York, NY 10036 SIDLEY AUSTIN LLP (212) 252-7204 1501 K Street, N.W. Washington, DC 20005 (202) 736-8000 Attorneys for Petitioner Fox Television Stations, Inc. CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Petitioner respectfully states that News Corporation, a publicly-held company, owns an interest of 10 percent or more in Fox Television Stations, Inc. i TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF AUTHORITIES ....................................................................................iv PRELIMINARY STATEMENT ...............................................................................1 JURISDICTIONAL STATEMENT ..........................................................................1 QUESTIONS PRESENTED......................................................................................2 STATEMENT OF THE CASE..................................................................................2 STATEMENT OF FACTS ........................................................................................3 A. The FCC’s Longstanding Policy of Restrained Enforcement of “Indecency” ...........................................................................................3 B. The FCC’s Expanded Indecency Enforcement Regime .....................11 C. The Preceding Decisions.....................................................................16 SUMMARY OF ARGUMENT ...............................................................................19 STANDARD OF REVIEW .....................................................................................21 ARGUMENT ...........................................................................................................22 I. THE COMMISSION’S NEWLY-EXPANDED INDECENCY REGIME IS CONTRARY TO LAW...........................................................22 A. The Indecency Statute And The First Amendment Require The FCC To Find Scienter Before Punishing Broadcasts Of Allegedly Indecent Material................................................................22 1. Section 1464 Requires Scienter. ...............................................22 2. The First Amendment Requires A Finding Of Scienter To Sustain A Violation of § 1464.............................................25 3. The Mens Rea Requirement Extends To The “Obscene, Indecent, or Profane” Element of § 1464, Not Merely To The “Broadcast” Element. ........................................................28 ii B. The FCC’S Practice Of Making Indecency Findings Without Scienter Is Unlawful............................................................................30 1. Because § 1464 Requires Scienter, The FCC Cannot Find An Indecency Violation Where Scienter Is Lacking. ...............30 2. The FCC Cannot Evade The Mens Rea Requirement By Finding Indecency Violations Based On Its Indecency Rule. ..........................................................................................32 3. The FCC Cannot Find Indecency Violations Based On Merely “Willful” Conduct. .......................................................35 C. The FCC’s New Interpretation Of Profanity Is Indefensible..............37 II. THE FCC’S INDECENCY REGIME AS IT RELATES TO POTENTIALLY OFFENSIVE WORDS IS UNCONSTITUTIONAL. ......41 A. The FCC’s Current Indecency Regime Is Unconstitutionally Vague...................................................................................................42 B. The Current Indecency Regime Fails Any Degree of Constitutional Scrutiny Because It Is Not Narrowly Tailored............50 1. Blocking Technology Is A Less Restrictive Alternative To Content-Based Regulation of Speech..................................52 2. The Commission’s New Enforcement Regime Does Not Materially Advance The Goal Of Protecting Children.............56 C. The New Indecency Regime Routinely Relies On Prohibited Criteria.................................................................................................57 CONCLUSION........................................................................................................60 iii TABLE OF AUTHORITIES Page(s) CASES ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) ..........................................................................44 Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988)....................................................................10, 43 Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991)..........................................................................33 Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001) ..............................................................................44 Arab-American Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005) ..............................................................................27 Ashcroft v. ACLU, 542 U.S. 656 (2004)................................................................................41, 42, 55 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)............................................................................................44 Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990)............................................................................................50 Bad Frog Brewery v. New York State Liquor Auth., 134 F.3d 87 (2d Cir. 1998) .................................................................................56 Baggett v. Bullitt, 377 U.S. 360 (1964)............................................................................................47 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)..............................................................................................45 Beal v. Stern, 184 F.3d 117 (2d Cir. 1999) ...............................................................................47 Bobb v. Attorney Gen., 458 F.3d 213 (3d Cir. 2006) ...............................................................................35 iv Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)..............................................................................................56 Boos v. Berry, 485 U.S. 312 (1988)............................................................................................54 Brown v. Hartlage, 456 U.S. 45 (1982)..............................................................................................50 Carlin Commc’ns, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984) ...............................................................................54 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated, 129 S. Ct. 2176 (2009)..........................22 CBS, Inc. v. DNC, 412 U.S. 94 (1973)..............................................................................................57 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)............................................................................................34 Coates v. Cincinnati, 402 U.S. 611 (1971)............................................................................................45 Cohen v. California, 403 U.S. 15 (1971)..............................................................................................51 Comcast Corp. v. FCC, Case No. 08-1114 (D.C. Cir. Aug. 28, 2009).....................................................51 Conn. Dep’t of Pub. Util. Control v. FCC, 78 F.3d 842 (2d Cir. 1996) .................................................................................21 Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996)............................................................................................57 Duncan v. United States, 48 F.2d 128 (9th Cir. 1931) ................................................................................38 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)............................................................................................51 v FCC v. ABC, 347 U.S. 284 (1954)......................................................................................23, 39 FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009)................................................................................ passim FCC v. League of Women Voters, 468 U.S. 364 (1984)............................................................................................50 FCC v. Pacifica Found., 438 U.S. 726 (1978).................................................................................... passim Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009)........................................................................................29 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)............................................................................................47 Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007) ...............................................................3, 16, 37, 50 Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966) ............................................................23, 25, 29, 38 Gentile v. State Bar, 501 U.S. 1030 (1991)..........................................................................................47 Ginsberg v. New York, 390 U.S. 629 (1968)............................................................................................26 Gooding v. Wilson, 405 U.S. 518 (1972)............................................................................................45 Grayned v. Rockford, 408 U.S. 104 (1972)............................................................................................47 Hamling v. United States, 418 U.S. 87 (1974)........................................................................................27, 46 Houston v. Hill, 482 U.S. 451 (1987)............................................................................................45 vi Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)............................................................................................40 Kolender v. Lawson, 461 U.S. 352 (1983)............................................................................................47 Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988)............................................................................................47 Lewis v. New Orleans, 415 U.S. 130 (1974)............................................................................................45 Manual Enters., Inc. v. Day, 370 U.S. 478 (1962)............................................................................................27 Michel v. INS, 206 F.3d 253 (2d Cir. 2000) ...............................................................................39 Mishkin v. New York, 383 U.S. 502 (1966)............................................................................................26 New York v. Ferber, 458 U.S. 747 (1982)............................................................................................27 Osborne v. Ohio, 495 U.S. 103 (1990)............................................................................................27 Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977)..................................................................................5 Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004) ...............................................................................42 PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.) .......................................................................................44 R.A.V. v. St. Paul, 505 U.S. 377 (1992)............................................................................................54 Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)............................................................................................18 vii Reno v. ACLU, 521 U.S. 844 (1997).................................................................................... passim Robinson v. FCC, 334 F.2d 534 (D.C. Cir. 1964)..............................................................................4 Rural Tel. Coal. v. FCC, 838 F.2d 1307 (D.C. Cir. 1988)..........................................................................21 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989)............................................................................6, 51, 52, 54 Smith v. California, 361 U.S. 147 (1959)................................................................................26, 28, 42 Smith v. Goguen, 415 U.S. 566 (1974)............................................................................................42 Speiser v. Randall, 357 U.S. 513 (1958)............................................................................................47 Staples v. United States, 511 U.S. 600 (1994)................................................................................23, 24, 28 Tallman v. United States, 465 F.2d 282 (7th Cir. 1972) ..................................................................23, 25, 40 TRW Inc. v. Andrews, 534 U.S. 19 (2001)........................................................................................35, 40 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)......................................................................................50, 56 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000).................................................................................... passim United States v. Smith, 467 F.2d 1126 (7th Cir. 1972) ......................................................................23, 29 United States v. Thompson/Ctr. Arms Co., 504 U.S. 505 (1992)............................................................................................39 viii United States v. United States Gypsum Co., 438 U.S. 422 (1978)......................................................................................23, 24 United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)............................................................................23, 25, 28, 35 Video Software Dealers Ass’n v. Webster, 968 F.2d 684 (8th Cir. 1992) ..............................................................................27 Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cir. 1995) ..............................................................................27 STATUTES AND REGULATION Radio Act of 1927, ch. 169, § 29, 44 Stat. 1162, 1172-73 ........................................3 Act of June 25, 1948, ch. 645, 62 Stat. 683...............................................................3 Communications Act of 1934, ch. 652, § 326, 48 Stat. 1064....................................3 Communications Act Amendments, Pub. L. No. 86-752, § 7, 74 Stat. 889, 894 (1960) (codified at 47 U.S.C. § 503(b)(1))....................................................4 Communications Amendments Act of 1982, Pub. L. No. 97-259, sec. 117, § 312, 96 Stat. 1087, 1095 ..................................................................................36 An Act Making Appropriations for the Departments of Commerce, Justice, and State, Pub. L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988) ................33 Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954 ...............................................................................................33 Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(b), (e), 110 Stat. 56, 140, 142 .........................................................................................53 Broadcast Decency Enforcement Act of 2005, Pub. L. No. 109-235, 120 Stat. 491 (2006)............................................................................................13 5 U.S.C. § 706..........................................................................................................21 18 U.S.C. § 1464........................................................................................................3 ix 47 U.S.C. § 303........................................................................................................53 47 U.S.C. § 312..............................................................................................4, 36, 37 47 U.S.C. § 326....................................................................................................4, 47 47 U.S.C. § 503................................................................................................ passim 47 C.F.R. § 73.3999 .................................................................................9, 30, 33, 38 ADMINISTRATIVE DECISIONS AMFM Radio Licenses, 19 FCC Rcd. 5005 (2004)...................................................................................13 Applications of E.G. Robinson 33 F.C.C. 250 (1962) ...........................................................................................4 Applications of Pacifica Found., 36 F.C.C. 147 (1964) ............................................................................................4 Clear Channel, 19 FCC Rcd. 1768 (2004)...................................................................................13 Clear Channel, 19 FCC Rcd. 6773 (2004)...................................................................................13 Complaint by Warren B. Appleton, Brockton, Mass., 28 F.C.C.2d 36 (1971) ........................................................................................38 Complaints Against Various Broad. Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975 (2004)........................................................................... passim Complaints by Parents Television Council Against Various Broad. Licensees Regarding Their Airing of Allegedly Indecent Material, 20 FCC Rcd. 1931 (2005)...................................................................................45 Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 2664 (2006) .......................................................................... passim x Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 13299 (2006) ........................................................................ passim Enforcement of Prohibitions Against Broad. Indecency in 18 U.S.C. 1464 8 FCC Rcd. 704 (1993) ......................................................................................34 Implementation of Section 551 of the Telecommunications Act of 1996, 13 FCC Rcd. 8232 (1998).............................................................................53, 55 Indus. Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999 (2001).......................................................................10, 11, 43 Infinity Broad. of Pa., 2 FCC Rcd. 2705 (1987)...........................................................................9, 10, 12 Infinity Broad. of Pa., 3 FCC Rcd. 930 (1987).........................................................................................9 Infinity Radio License, Inc. 19 FCC Rcd. 5022 (2004)...................................................................................46 Married By Am., 19 FCC Rcd. 20191 (2004).................................................................................13 Pacifica Found. Station WBAI(FM), New York, N.Y., 56 F.C.C.2d 94 (1975) ..................................................................................4, 5, 7 Pacifica Radio, 2 FCC Rcd. 2698 (1987).................................................................................9, 10 Raycom Amer., Inc., 18 FCC Rcd. 4186 (2003)...................................................................................38 Regents of the Univ. of Cal., 2 FCC Rcd. 2703 (1987).................................................................................9, 10 Southern California Broadcasting Co., 6 FCC Rcd. 4387 (1991).....................................................................................36 Super Bowl XXXVIII Halftime Show, 19 FCC Rcd. 19230 (2004).................................................................................13 xi Various Complaints Against the Cable/Satellite Television Program “Nip/Tuck,” 20 FCC Rcd. 4255 (2005)...................................................................................53 WGBH Educ. Found., 69 F.C.C.2d 1250 (1978) ......................................................................................8 LEGISLATIVE HISTORY 122 Cong. Rec. 33359 (1976) .............................................................................9, 38 H.R. Rep. No. 97-765 (1982) (Conf. Rep.), reprinted in 1982 U.S.C.C.A.N. 2261 ................................................................36 OTHER AUTHORITIES Black’s Law Dictionary (8th ed. 2004)....................................................................38 Webster’s Third New Int’l Dictionary (1993)..........................................................38 FCC, The Public and Broadcasting, 1999 WL 391297 (June 1999) .................9, 38 Patrick Commc’ns, Broadcasting & Cable Yearbook 2007 (2006) .......................55 Allison Romano, Reporting Live. Very Carefully, Broadcasting & Cable, July 4, 2005, at 9, available at http://www.broadcastingcable.com/article/ CA623019.html...................................................................................................48 Letter from Jack Valenti, President and CEO, Motion Picture Association of America, et al. to William F. Caton, Secretary, FCC (Jan. 17, 1997), available at http://www.fcc.gov/Bureaus/Cable/Public_Notices/1997/fc97034a.pdf ...........53 2 Warren Commc’ns News, Television & Cable Factbook C-37 (2006) ...............55 xii PRELIMINARY STATEMENT The Federal Communications Commission (“FCC”) entered the orders under review. Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 2664 (2006) (“Omnibus Order”); Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 13299 (2006) (“Remand Order”). JURISDICTIONAL STATEMENT On March 15, 2006, the FCC issued the Omnibus Order. SPA-1. Petitioners filed a timely petition for review on April 13, 2006. A-1. This Court remanded the case to the FCC on September 7, 2006 and directed the FCC to issue a final or appealable order within 60 days. A-11. On November 6, 2006, the FCC issued its Remand Order, which is a final and appealable order. SPA-77. Pursuant to the September 7, 2006 Order, Petitioner Fox Television Stations, Inc. (“Fox”) filed a Petition for Review of the Remand Order on November 21, 2006, see A- 921, along with an unopposed motion to consolidate. This Court has jurisdiction pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. §§ 2342, 2344. Venue is proper pursuant to 28 U.S.C. § 2343. QUESTIONS PRESENTED 1. Whether the FCC’s newly-expanded indecency regime is inconsistent with the requirements of scienter for indecency violations and inconsistent with the plain and accepted meaning of “profane” utterances. 2. Whether the FCC’s indecency regime, as applied to the isolated and fleeting use of words deemed by the FCC to be offensive, violates the First Amendment. STATEMENT OF THE CASE This case is back before this Court on remand from the Supreme Court. But the Supreme Court’s reversal of this Court’s prior administrative law decision merely puts the FCC’s newly expanded indecency regime on temporary life support. It does nothing to heal the terminal condition of the FCC’s efforts to regulate the content of broadcast speech. The Supreme Court did not address any of the statutory or constitutional arguments that Fox previously raised, see FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009) (“FCC v. Fox”), so those issues remain live at this stage and provide multiple reasons to vacate the FCC’s order under review. As shown below, the FCC’s radical reinterpretation and expansion of its authority violates the statute and does serious violence to the First Amendment. As Justice Ginsburg put it, “there is no way to hide the long shadow the First Amendment casts” over the FCC’s regulation of indecency. Id. at 1828 (Ginsburg, J., dissenting). All of the various constitutional issues previously raised by Fox 2 and others in this case continue to provide compelling reasons to vacate the FCC’s order under review, as this Court’s prior decision recognized. See Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 462 (2d Cir. 2007) (“Fox v. FCC”) (expressing skepticism that the FCC can meet the constitutional objections to its indecency regime). The constitutional issues in this appeal are thus ripe for decision. In addition, Fox previously argued that the FCC’s indecency findings are invalid because the Commission made no finding of scienter. Fox’s scienter argument is grounded in both basic principles of statutory interpretation and the First Amendment. Neither this Court’s prior opinion nor the Supreme Court’s decision addressed this argument at all, which provides another compelling basis for vacating the FCC’s indecency findings in this case. STATEMENT OF FACTS A. The FCC’s Longstanding Policy of Restrained Enforcement of “Indecency” The FCC’s indecency regime enforces 18 U.S.C. § 1464, which provides: Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. 1 1 Radio Act of 1927, ch. 169, § 29, 44 Stat. 1162, 1172-73 (original enactment); Communications Act of 1934, ch. 652, § 326, 48 Stat. 1064, 1091; Act of June 25, 1948, ch. 645, § 1464, 62 Stat. 683, 769, 866 (transferring the prohibition to the U.S. Criminal Code). 3 Since the original passage of this provision in 1927, however, Congress has also expressly prohibited the FCC from engaging in censorship: “Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.” 47 U.S.C. § 326. For several decades, the FCC enforced § 1464 only in the context of license renewals. See 47 U.S.C. § 312. In that context, the FCC made clear that it could take action only in the most extreme cases, involving extensive violations over a long period of time. See, e.g., Robinson v. FCC, 334 F.2d 534 (D.C. Cir. 1964); Applications of E.G. Robinson, 33 F.C.C. 250, 257 (1962); Applications of Pacifica Found., 36 F.C.C. 147, 150 (1964). In 1960, Congress expanded the FCC’s indecency enforcement power by enabling the agency to impose monetary forfeitures on a broadcast licensee that “violates section . . . 1464 of title 18 of the United States Code.” Communications Act Amendments, Pub. L. No. 86-752, § 7, 74 Stat. 889, 894 (1960) (codified at 47 U.S.C. § 503(b)(1)). The agency did not exercise its forfeiture power to enforce the statutory ban on “indecency” (as opposed to obscenity) until 1975, when it ruled on a complaint concerning a broadcast of the comedian George Carlin’s “Filthy Words” monologue. Pacifica Found. Station WBAI(FM), New York, N.Y., 56 F.C.C.2d 94 4 (1975) (“FCC Pacifica Order”). During his 12-minute monologue—broadcast at 2:00 in the afternoon—Carlin repeatedly used “fuck” and “shit” “in a variety of colloquialisms,” many of which vividly involved the sexual and excretory meanings of those words. See FCC v. Pacifica Found., 438 U.S. 726, 729 (1978); see also id. at 751-55 (transcript of monologue). The FCC issued a declaratory order defining indecent speech as: language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of day when there is a reasonable risk that children may be in the audience. FCC Pacifica Order, 56 F.C.C.2d at 97-98. Based on this definition, the FCC concluded that the broadcast was “indecent” and that the FCC could have imposed administrative sanctions against the station (although it did not). On review, the D.C. Circuit found the FCC’s regulation of “indecency” unlawful and unconstitutional. See Pacifica Found. v. FCC, 556 F.2d 9 (D.C. Cir. 1977). The D.C. Circuit rejected the FCC’s construction of § 1464, holding that despite the FCC’s efforts to exercise restraint and construe the statute narrowly, the FCC’s policy remained overly broad and vague. Id. at 17 (observing that the FCC’s interpretation “would prohibit the broadcast of Shakespeare’s The Tempest or Two Gentlemen of Verona” along with “certain passages of the Bible” and the “works of Auden, Becket, Lord Byron, Chaucer, Fielding, Greene, Hemingway, Joyce, Knowles, Lawrence, Orwell, Scott, Swift, and the Nixon tapes”). 5 The FCC, without the support of the United States, obtained review in the Supreme Court and quickly back-tracked. It told the Court that the D.C. Circuit should not have focused on a “post-record parade of horribles” and stressed that its decision should be limited to the facts of the case. Specifically, the FCC argued that its decision “must be read narrowly, limited to the language ‘as broadcast’ in the early afternoon,” and emphasized “the deliberate repetition of these words,” noting that the case involved “prerecorded language with the words repeated over and over [and] deliberately broadcast.” Brief for the FCC, FCC v. Pacifica Found., No. 77-528 (U.S. Mar. 3, 1978), available at 1978 WL 206838, at *41-42 (citation omitted). The Supreme Court took the Commission at its word and reversed the D.C. Circuit, see Pacifica, 438 U.S. at 742 (plurality opinion), in “an emphatically narrow holding.” 2 As Justice Powell explained in his concurring opinion, the Court approved “only the Commission’s holding that Carlin’s monologue was indecent ‘as broadcast’ at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion.” Id. at 755-56 (Powell, J., concurring). Indeed, Justices Powell and Blackmun, who supplied the crucial votes for Pacifica’s 5-4 2 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989); see also Pacifica, 438 U.S. at 742 (“our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast” in a “specific factual context”); id. at 750 (plurality opinion) (“[i]t is appropriate . . . to emphasize the narrowness of our holding”). 6 majority, explained that “[t]he Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word.” Id. at 760-61 (Powell, J., concurring); accord id. at 750 (plurality opinion). They stressed that the FCC does not have “unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes.” Id. at 759-60 (Powell, J., concurring). Both Justices were concerned that the FCC’s standard could lead broadcasters to self-censor protected speech, but they voted to uphold the FCC’s order only because “the Commission may be expected to proceed cautiously, as it has in the past.” Id. at 756, 760, 761 n.4 (Powell, J., concurring). Mindful of the indecency ban’s near-death experience in the Supreme Court, 3 the FCC interpreted the term “indecent” as prohibiting only egregious broadcasts like the Carlin routine or its equivalent for almost 30 years following Pacifica. Indeed, the FCC acknowledged that the Constitution would not permit it to enforce either § 1464 or its own definition of indecency to the fullest conceivable extent. FCC Pacifica Order, 56 F.C.C.2d at 103-04 (Robinson and Hooks, concurring) (“the statute . . . on its face expresses no limit on our power to 3 In fact, the four dissenting Justices in Pacifica would have held that any regulation of indecency was either contrary to the statute or unconstitutional. Pacifica, 438 U.S. at 762 (Brennan, J., dissenting), 777 (Stewart, J., dissenting). 7 forbid ‘indecent’ language over the air, [but] the First Amendment does not permit us to read the statute broadly”). The FCC reiterated this policy of severe restraint many times during these three decades. Just three weeks after Pacifica, it rejected a petition to deny the renewal of WGBH-TV’s broadcast license on indecency grounds. An activist group had submitted “five and one-half pages of characterizations of programs and/or words and phases” it described as “offensive, vulgar and otherwise . . . harmful to children”—including “shit” and “bullshit”—but the Commission held that “we cannot base the denial of a license renewal application upon the ‘subjective determination’ of a viewer, or group of viewers, as to what is or is not ‘good’ programming.” WGBH Educ. Found., 69 F.C.C.2d 1250, 1251-52 (1978). The FCC explained: 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. The opinion of the Court specifically stated that it was not ruling that “an occasional expletive . . . would justify any sanction . . . .” . . . Further, Justice Powell’s concurring opinion emphasized the fact that the language there in issue had been “repeated over and over as a sort of verbal shock treatment.” . . . He specifically distinguished “the verbal shock treatment [in Pacifica]” from “the isolated use of a potentially offensive word in the course of a radio broadcast.” Id. at 1254. 8 The FCC also made clear that it could not enforce a separate ban on “profane” speech despite the presence of that term in § 1464. Indeed, after a comprehensive legal analysis, the FCC recommended to Congress that it repeal the statutory ban on “profane” speech. See 122 Cong. Rec. 33359, 33359-69 (1976) (recommending repeal “[b]ecause of the serious constitutional problems involved”). It noted that since 1931 “neither the courts nor the Commission have employed this prohibition” on profanity. 122 Cong. Rec. at 33365. Even though Congress did not change the statute, the FCC’s rules enforcing § 1464 include only the statutory terms “obscene” and “indecent.” See 47 C.F.R. § 73.3999. Until recently, the Commission took the position that “[p]rofanity that does not fall under one of the above two categories [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated.” 4 In 1987, the FCC adopted a more generic definition of the statutory term “indecent,” in an attempt to include speech that was the functional equivalent of the “verbal shock treatment” of the George Carlin routine (even if the speech did not use the “seven dirty words”). 5 The FCC emphasized, however, that no 4 See FCC, The Public and Broadcasting, available at 1999 WL 391297 (June 1999). 5 Pacifica Radio, 2 FCC Rcd. 2698, 2699 (1987), aff’d on recon., Infinity Broad. Corp. of Pa., 3 FCC Rcd. 930 (1987); Regents of the Univ. of Cal., 2 FCC Rcd. 2703 (1987) (same subsequent history); Infinity Broad. of Pa., 2 FCC Rcd. 2705 (1987) (same subsequent history). 9 substantive change was intended and reaffirmed the principle that isolated or fleeting utterances would not be considered actionable. Pacifica Radio, 2 FCC Rcd. 2698, 2699 (1987) (“deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency”); Infinity Broad. of Pa., 2 FCC Rcd. 2705 (1987); Regents of the Univ. of Cal., 2 FCC Rcd. 2703 (1987). The D.C. Circuit affirmed, but then-Judge Ruth Bader Ginsburg, writing for the Court, again emphasized the necessity of a restrained enforcement policy. On the issue of overbreadth, the Court noted that “the FCC has assured this Court . . . that it will continue to give weight to reasonable licensee judgments when deciding whether to impose sanctions in a particular case.” Action for Children’s Television v. FCC, 852 F.2d 1332, 1340 n.14 (D.C. Cir. 1988) (“ACT I”). Quoting Justice Powell’s “expectation that the Commission will continue to proceed cautiously,” the Court believed that “the potential chilling effect of the FCC’s generic definition . . . will be tempered by the Commission’s restrained enforcement policy.” Id. In 2001, the Commission issued a policy statement to provide licensees with “interpretive guidance” about indecency enforcement. 6 Under the Indecency Policy Statement, the FCC is required to make two determinations in any indecency case: (1) whether the material depicted or described sexual or excretory 6 Indus. Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8008- 09 (2001) (“Indecency Policy Statement”). 10 organs or activities, and (2) whether the material was “patently offensive” as measured by contemporary community standards for the broadcast medium. ¶¶ 7- 8. The FCC’s articulation of this national community standard to determine “patent offensiveness” consisted of three factors: (a) the explicitness or graphic nature of the depiction; (b) whether the material dwells on or repeats at length the depictions; and (c) whether the material appears to pander or is used to titillate or shock. Id. ¶ 10. The Indecency Policy Statement also reaffirmed the central aspects of the FCC’s restrained approach to enforcement. Id. ¶ 5 (“Although the D.C. Circuit approved the FCC’s definition of indecency in the ACT cases, it also established several restrictive parameters on FCC enforcement.”). And it identified as a “principal factor” whether the material was dwelt upon or repeated as opposed to fleeting and isolated. Id. ¶ 10. B. The FCC’s Expanded Indecency Enforcement Regime In 2004, the FCC unexpectedly abandoned its longstanding and restrained enforcement policy. Under this new approach, the Commission has, for the first time, begun to (1) take enforcement actions against fleeting and isolated utterances of potentially offensive words; (2) find “profane” speech to be a distinct violation of § 1464; and (3) impose massive and unprecedented fines for violations of the indecency rules. 11 The FCC launched its new anti-indecency offensive with an order finding the broadcast of the “Golden Globe Awards Show” to be indecent because the singer Bono declared that his receipt of an award was “really, really fucking brilliant.” Complaints Against Various Broad. Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975 (2004) (“Golden Globe Order”). Under longstanding precedent, this isolated and fleeting expletive plainly would not have been actionably indecent, as the FCC’s own Enforcement Bureau recognized in its initial ruling on the broadcast. “Golden Globe Awards,” 18 FCC Rcd. 19859 (Enforcement Bureau 2003). The full Commission, however, reversed the Enforcement Bureau’s decision, expressly overruled previous FCC decisions to the contrary, and stressed that “[t]he fact that the use of [an indecent] word may have been unintentional is irrelevant.” Golden Globe Order ¶ 9 (overruling prior holdings that “isolated use of expletives is not indecent,” including the original Pacifica decision and Infinity Broad. of Pa., 2 FCC Rcd. at 2705); see also id. ¶ 12 n.32 (overruling cases cited in the Indecency Policy State- ment). The FCC further announced what it called “a new approach to profanity” by holding that it provided “an independent ground” for imposing liability upon broadcasters under the law. Id. ¶¶ 13-14. As if the new, zero-tolerance enforcement policy were not harsh enough, the FCC subsequently issued a series of notices of apparent liability proposing the 12 largest indecency fines in history. To stretch the statutory limit of a $32,500 penalty per violation, the FCC reversed precedent and began to treat each network affiliate’s broadcast of the same network program as a separate violation of § 1464, even where there had been no complaint about a particular station’s broadcast. 7 Since then, the statutory maximum has been increased tenfold, 8 meaning that aggregate penalties for a network broadcast of a single expletive could exceed $65 million. In addition to huge forfeitures, the FCC also has threatened license revocation for “serious multiple violations.” Id. ¶ 17. No broadcaster could have anticipated the FCC’s sharp break in policy, and thus no one raised critical First Amendment concerns and the FCC did not address them in the Golden Globe Order. Numerous parties, including Petitioner, therefore sought reconsideration of the Golden Globe Order. A-70. To date— over five years later—the FCC has inexplicably failed to act on these petitions, thereby making it impossible for any broadcaster to seek judicial review of the Golden Globe Order itself. 7 See, e.g., Married By Am., 19 FCC Rcd. 20191, 20195-96 (2004) ($1.2 million); Super Bowl XXXVIII Halftime Show, 19 FCC Rcd. 19230, 19237-40 (2004) ($550,000); Clear Channel, 19 FCC Rcd. 1768, 1777-79 (2004) ($755,000); Clear Channel, 19 FCC Rcd. 6773, 6780 (2004) ($495,000); AMFM Radio Licenses, 19 FCC Rcd. 5005, 5010-11 (2004) ($247,500). 8 Broadcast Decency Enforcement Act of 2005, Pub. L. No. 109-235, 120 Stat. 491 (2006) (codified at 47 U.S.C. § 503(b)(2)(C)(ii)) (increasing the maximum fine from $32,500 per occurrence to $325,000). 13 The FCC’s unexpected expansion of its regime created considerable confusion and uncertainty about the scope of the new policy. Recognizing this confusion, the FCC issued the Omnibus Order in February 2006, in which it purported to “provide substantial guidance to broadcasters and the public about the types of programming that are impermissible under our indecency standard” by making findings about approximately 30 television programs with a “broad range of factual patterns.” Omnibus Order ¶ 2. The Omnibus Order reaffirmed the Golden Globe Order and added the word “shit” to the list of words that are presumptively indecent and profane. Id. ¶ 75. As relevant here, the FCC concluded that Fox’s broadcasts of the 2002 and 2003 “Billboard Music Awards” violated § 1464. On the 2002 broadcast, Cher said that “People have been telling me I’m on the way out every year, right? So fuck ‘em.” Id. ¶ 101. During the 2003 broadcast, presenter Nicole Richie asked, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” Id. ¶ 112 & n.164. The FCC found both broadcasts to be actionably indecent, even though both expletives were unscripted and it was undisputed that Fox had no notice and did not intend for the words to be broadcast. Id. ¶¶ 105, 118. Citing the Golden Globe Order, the FCC discounted the fact “that specific words or phrases are not sustained or repeated.” Id. ¶ 116. The FCC also found both broadcasts to be profane, because the words were “grossly offensive,” 14 tantamount to a “nuisance,” and likely to “shock the viewer” and “disturb the peace and quiet of the home.” Id. ¶ 121. The FCC did not issue notices of apparent liability against these two broadcasts, however, for the express reason that both broadcasts pre-dated the Golden Globe Order and were permissible under prior precedent. Id. ¶¶ 111, 124. Petitioners appealed the Omnibus Order to this Court, but the FCC moved for a voluntary remand, ostensibly to give parties the opportunity to make their arguments to the FCC in the first instance. The Court granted the motion and stayed enforcement of the new regime. A-11. The FCC issued its Remand Order on November 6, 2006, which reaffirmed its indecency and profanity findings against the two Billboard Awards broadcasts. SPA-77. The FCC again rejected the view that expletives had to be egregious and repeated before they could be found actionably indecent. Id. ¶ 23. The FCC also reaffirmed its new interpretation of “profane,” id. ¶¶ 40-41, and rejected various constitutional challenges. See id. ¶¶ 42-52. Although the agency for the first time claimed that it could have fined Fox for the broadcasts, see id. ¶¶ 53, 66, the FCC nonetheless stated that it would not issue a notice of apparent liability because this Court had required a “final or appealable order.” Id. ¶ 53. The FCC also relied on its decision not to issue a forfeiture to justify declining to consider whether scienter was required to violate 15 § 1464. See id. ¶¶ 54, 64, 66 n.206. In accordance with this Court’s order on remand, Fox filed a petition for review of the Remand Order and an unopposed motion to consolidate with the appeal of the Omnibus Order. A-921. C. The Preceding Decisions On June 4, 2007, this Court granted Fox’s petition for review, vacated the Remand Order, and remanded the proceeding to the FCC. Fox v. FCC, 489 F.3d at 447. This Court found that the FCC’s failure to justify adequately its changed indecency policy with respect to the isolated and fleeting broadcast of a potentially offensive word was arbitrary and capricious in violation of the Administrative Procedure Act. Id. at 446-47. In dicta, the Court also questioned whether any reasoned explanation for the FCC’s change in policy with respect to fleeing expletives “would pass constitutional muster.” Id. at 462. The Court recognized that indecent speech is fully protected by the First Amendment and described the FCC’s test for whether such speech could be prohibited as “undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.” Id. at 463. In particular, this Court questioned how broadcasters could possibly know whether the broadcast of an expletive would be sanctioned based on the FCC’s conflicting case law that appeared to reflect the FCC’s “subjective view of the merit” of the particular program at issue. Id. at 463-64 (comparing Saving Private Ryan (no sanction for multiple expletives) with Golden Globe Awards (sanction for 16 one expletive) with The Blues: Godfathers and Sons (sanction for multiple expletives) with The Early Show (no sanction for one expletive)). This Court also questioned whether the underlying assumptions of Pacifica were still valid. Id. at 465. Specifically, the Court noted that “it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children,” noting the “proliferation of satellite and cable television channels—not to mention internet based video outlets.” Id. at 465-66. Further, this Court recognized the less restrictive alternative of the V-Chip, which “empower[s] viewers to make their own choices about what they do, and do not, want to see on television,” and noted that “technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.” Id. at 466. Dissenting from the Court’s prior decision, Judge Leval concluded that the FCC had adequately explained its change in policy with respect to the word “fuck,” though he suggested that the term “shit” was not indecent. See id. at 473- 74 & n.18 (Leval, J., dissenting). Judge Leval did not, however, address any of Fox’s statutory or constitutional challenges to the FCC’s indecency regime. A divided Supreme Court reversed this Court’s decision and remanded the case for further consideration. See FCC v. Fox, 129 S. Ct. 1800 (2009). Deciding only the APA question presented by the FCC, the Supreme Court found that the FCC adequately justified its change in policy with respect to isolated and fleeting 17 expletives. Id. at 1812. The Court found that the FCC’s reasons for changing its enforcement policy were “entirely rational.” Id. 9 The Supreme Court did not reach any other arguments offered by Fox and others regarding the FCC’s indecency regime, expressly “declin[ing] to address the constitutional questions at this time.” Id. at 1819. Justice Thomas concurred in the opinion of the Court but separately expressed skepticism about the constitutionality of the FCC’s regulation of broadcast indecency and the viability of the constitutional underpinnings of much of broadcast regulation. Id. at 1819-20. Judging the “deep intrusion into the First Amendment rights of broadcasters” to be “problematic,” id. at 1820, Justice Thomas emphasized the “doctrinal incoherence” of Pacifica and Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969). Id. at 1821. According to Justice Thomas, “dramatic technological advances have eviscerated the factual assumptions underlying those decisions.” Id. Although the Supreme Court did not reach any of the constitutional issues raised in this case, Justice Ginsburg nonetheless recognized “there is no way to hide the long shadow the First Amendment casts over what the Commission has 9 As Justice Kennedy noted in his separate concurrence, however, “[t]he reasons the agency announces for this change are not so precise, detailed, or elaborate as to be a model for agency explanation.” FCC v. Fox, 129 S. Ct. at 1824 (Kennedy, J., concurring in part and concurring in judgment). 18 done.” Id. at 1828 (Ginsburg, J., dissenting). As she noted, the Supreme Court’s decision “does nothing to diminish that shadow.” Id. SUMMARY OF ARGUMENT This Court should vacate the FCC’s indecency policy as contrary to law and unconstitutional. Although both the statute and the First Amendment require the element of scienter, the FCC found that the broadcasts at issue here violated § 1464 without even considering whether Fox had acted with improper intent. According to the FCC, Fox’s merely “willful” broadcast of the 2002 Billboard Music Awards and the 2003 Billboard Music Awards—where “willful” is tantamount to strict liability for airing the program—violated § 1464. But this willfulness standard does not apply to alleged violations of § 1464; the FCC instead must find that a broadcaster aired the offending material knowingly and intentionally—i.e. with scienter. The FCC’s abandonment of the scienter requirement has broad ramifications beyond this case. In essence, the FCC now claims the authority to impose multimillion dollar fines on broadcasters (and potentially revoke their licenses) for the spontaneous and unscripted actions of performers and others in the context of live programming—even where the broadcaster had no intention of broadcasting potentially offensive language or images and took reasonable steps to prevent such a broadcast. Faced with the prospect of such large fines for unintentional conduct, 19 broadcasters have no choice: they must effectively change the nature of live television, invest millions of dollars in expensive time-delay equipment and the personnel necessary to operate it, or if those resources are not available, simply engage in self-censorship. This state of affairs is profoundly at odds with First Amendment values, which is why both the statute and the Constitution require scienter before any broadcaster can be punished for the broadcast of allegedly indecent material. In addition, in a reversal of its long-held view, the FCC has announced a new profanity standard that is contrary to the plainly religious connotation of that term. The definition of the statutory term “profanity” has been well-established by years of precedent and is not open to reinterpretation by the FCC at this late date. Further, the FCC’s application of the term “profanity” is indistinguishable from its use of the term “indecent,” an unreasonable interpretation of the statute that would render part of it superfluous. The Remand Order also violates the First Amendment for reasons in addition to its unconstitutional lack of a scienter finding. The FCC’s ban on broadcast indecency is unconstitutionally vague; indeed, the FCC’s standard is substantively identical to the indecency restrictions in the Communications Decency Act that the Supreme Court struck down on vagueness grounds. Further, “indecent” speech (as opposed to obscenity) is fully protected by the First 20 Amendment, and the FCC’s policy cannot survive strict scrutiny. The new indecency regime is not narrowly-tailored, because there are technological alternatives to the FCC’s censorship of isolated and fleeting expletives that restrict much less speech. Moreover, the FCC decides what speech it will punish based on totally subjective views about the value of the speech in question, which the Supreme Court has held cannot justify content-based restrictions on protected speech. STANDARD OF REVIEW The Remand Order must be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Conn. Dep’t of Pub. Util. Control v. FCC, 78 F.3d 842 (2d Cir. 1996). Petitioner’s constitutional challenge is subject to de novo review. See 5 U.S.C. § 706(2)(B) (“[t]he reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . contrary to constitutional right, power, privilege or immunity”); see also Rural Tel. Coal. v. FCC, 838 F.2d 1307, 1313 (D.C. Cir. 1988). 21 ARGUMENT I. THE COMMISSION’S NEWLY-EXPANDED INDECENCY REGIME IS CONTRARY TO LAW. A. The Indecency Statute And The First Amendment Require The FCC To Find Scienter Before Punishing Broadcasts Of Allegedly Indecent Material. The FCC’s practice of issuing forfeitures against broadcasters for “indecency” violations under § 1464, even where the broadcaster did not act with scienter, is based on a fundamental misunderstanding of the law. Contrary to the FCC’s apparent belief, § 1464 clearly requires scienter—that is, the broadcaster must have knowledge of and intent to broadcast the specific content that is alleged to be indecent—not just the intent to broadcast the program regardless of the actual content. And even if the statute were ambiguous on this point, the First Amendment prohibits the government from punishing speech without a showing of scienter, and therefore at a minimum § 1464 and the Communications Act must be construed to avoid the serious constitutional questions that arise under the FCC’s approach. 1. Section 1464 Requires Scienter. The FCC’s authority over allegedly indecent broadcasts is predicated on finding a “violation” of § 1464. See 47 U.S.C. § 503(b)(1)(D). It is quite clear that a broadcaster cannot violate § 1464 unless it acts with scienter. Indeed, courts have uniformly and repeatedly so held. See CBS Corp. v. FCC, 535 F.3d 167, 201 22 (3d Cir. 2008) (“[T]he statutory prohibition of broadcast indecency, 18 U.S.C. § 1464, should be read to include a scienter element.”), vacated, 129 S. Ct. 2176 (2009); United States v. Smith, 467 F.2d 1126, 1128 (7th Cir. 1972) (reversing a § 1464 conviction where the jury was not instructed “on the necessity of finding scienter as an essential element”); Tallman v. United States, 465 F.2d 282, 285 (7th Cir. 1972) (holding in a § 1464 prosecution that “scienter is an ingredient of the crime charged here”) (citing Morissette v. United States, 342 U.S. 246, 250 (1952)); Gagliardo v. United States, 366 F.2d 720, 724 (9th Cir. 1966) (same). The FCC is bound by this interpretation of § 1464. FCC v. ABC, 347 U.S. 284, 296 (1954) (“There cannot be one construction for the Federal Communications Commission and another for the Department of Justice.”). Accordingly, a broadcaster does not violate § 1464 unless it knew that prohibited language would be broadcast and intended to broadcast such language. There is no other reasonable interpretation of § 1464. Although the statute itself does not specify a state of mind requirement, federal criminal statutes are presumed to require mens rea. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 69-70 (1994) (invoking the “presumption[] that some form of scienter is to be implied in a criminal statute,” including statutes that are silent as to mens rea); Staples v. United States, 511 U.S. 600, 606 (1994); United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) (“Certainly far more than the simple 23 omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”). The Supreme Court has repeatedly cautioned that “offenses that require no mens rea generally are disfavored.” See, e.g., Staples, 511 U.S. at 606. While the criminal penalties for violating § 1464 are distinct from FCC civil forfeitures under 47 U.S.C. § 503(b)(1)(D), that distinction does not alter the fact that scienter is required to find any violation of § 1464 at all. Scienter is an element of the statute itself, and the civil forfeiture statute clearly requires a “violation” of the substantive prohibition in § 1464 (see 47 U.S.C. § 503(b)(1)(D)). The FCC thus erred by purporting to find that the broadcasts in question were “in violation of Section 1464,” Remand Order ¶¶ 53, 66, without the requisite finding of scienter. Similarly, the Supreme Court’s cases make clear that, where the presumption of mens rea applies, the degree of mens rea the court should presume is scienter. The Supreme Court has twice confronted statutes that did not contain any express mens rea requirement, and in both cases the Court concluded that the requisite mental element was knowledge and intent. See Staples, 511 U.S. at 605 (stating that the “conventional mens rea element . . . require[s] that the defendant know the facts that make his conduct illegal) (emphasis added); Gypsum, 438 U.S. 24 at 443 (“[W]e conclude that the criminal offenses defined by the Sherman Act should be construed as including intent as an element.”) (emphasis added). In short, nothing indicates that Congress intentionally omitted mens rea from § 1464; therefore, it must be presumed to include a knowledge and intent requirement. Given the clarity of the principles at work, it is not surprising that the courts that have specifically considered the question whether § 1464 requires mens rea have readily concluded that it does. See, e.g., Tallman, 465 F.2d at 285; Gagliardo, 366 F.2d at 724. 2. The First Amendment Requires A Finding Of Scienter To Sustain A Violation of § 1464. The First Amendment demands that any statute penalizing expression contain a mens rea requirement, in particular where, as here, the targeted expression is itself constitutionally protected speech. Accordingly, this Court must construe § 1464 to include a scienter requirement to avoid the serious constitutional questions that are raised by the FCC’s interpretation. See X- Citement Video, 513 U.S. at 78. Indeed, interpreting § 1464 as imposing liability even where the broadcaster had neither foreknowledge nor intent to broadcast the offending material would not only raise serious constitutional questions; it would require the Court to strike down § 1464 as an unconstitutional burden on free speech. 25 In Smith v. California, 361 U.S. 147 (1959), the Supreme Court held that a Los Angeles City ordinance prohibiting booksellers from possessing obscene or indecent books—without a mens rea requirement—violated the First Amendment. In reaching this conclusion, the Court reasoned that, even though the obscene material targeted by the ordinance was not protected at all by the First Amendment, the “ordinance’s strict liability feature would tend seriously to [restrict the dissemination of books that are not obscene], by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold.” Id. at 152. Strict liability would seriously curtail the dissemination of constitutionally protected expression because, “if the bookseller is criminally liable without knowledge of the contents [of the book] . . . he will tend to restrict the books he sells to those he has inspected,” in which case bookstores would be “depleted indeed.” Id. at 153. In the end, then, “[t]he bookseller’s self- censorship, compelled by the State, would be a censorship affecting the whole public.” Id. at 154. The Supreme Court has never questioned the rule announced in Smith; to the contrary, it has repeatedly reaffirmed it. See Mishkin v. New York, 383 U.S. 502, 511 (1966) (“The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.”); Ginsberg v. New York, 390 26 U.S. 629, 644 (1968) (noting “the constitutional requirement of scienter, in the sense of knowledge of the contents of the material”); Hamling v. United States, 418 U.S. 87, 123 (1974) (concluding that the “constitutional requirements of scienter” are satisfied where “the prosecution show[s] that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials”); New York v. Ferber, 458 U.S. 747, 765 (1982); Osborne v. Ohio, 495 U.S. 103, 115 (1990). This principle applies equally to civil penalties—especially the Communications Act’s multimillion dollar forfeitures for a single utterance or image. See, e.g., Manual Enters., Inc. v. Day, 370 U.S. 478, 492-93 (1962) (“a substantial constitutional question would arise were we to construe [the statute] as not requiring proof of scienter in civil proceedings”); Video Software Dealers Ass’n v. Webster, 968 F.2d 684, 690 (8th Cir. 1992). See also Arab-American Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 611 (6th Cir. 2005); Whitton v. City of Gladstone, 54 F.3d 1400, 1410 & n.16 (8th Cir. 1995). These cases leave little doubt that, if § 1464 and § 503 are construed to dispense with mens rea, they violate the First Amendment. Just as the ordinance in Smith would have caused booksellers to engage in self-censorship, so too § 1464, if read to impose strict liability as to content, will cause (and in fact has caused) broadcasters to censor programming to remove any possibility of violating the 27 statute. If anything, the broadcaster’s position is even more precarious than the bookseller’s: it would be impractical for a bookseller to inspect all of his books, but it is impossible for a broadcaster to eliminate the possibility that individuals in a truly live broadcast will use potentially offensive language or reveal a part of their body. Strict liability in this context thus threatens not only to restrict a valuable form of expression, but to eliminate it altogether. The First Amendment does not allow this result. 3. The Mens Rea Requirement Extends To The “Obscene, Indecent, or Profane” Element of § 1464, Not Merely To The “Broadcast” Element. The presumption of mens rea and the First Amendment require that mens rea attach to the “obscene, indecent, or profane” element of § 1464, and not merely to the “broadcast” element. The Supreme Court’s cases clearly teach that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U.S. at 72; see also Staples, 511 U.S. at 605 (the “conventional mens rea element” requires “that the defendant know the facts that make his conduct illegal”). Likewise, the Court in Smith v. California clearly held that the First Amendment required mens rea as to the content of the books, not merely as to the fact of possession. Smith v. California, 361 U.S. at 153 (“By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the 28 ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter.”); see also United States v. Smith, 467 F.2d at 1129 (7th Cir. 1972) (“it would be error to omit a charge that defendant must have knowledge of the contents of his utterances”); Gagliardo, 366 F.2d at 724 (holding that specific intent “is a very pertinent and necessary element”). The Supreme Court recently affirmed this view in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), interpreting the federal aggravated identity theft statute. There, the Court held that in order to prove that the accused “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,” the government must prove not only the knowing transfer, possession or use, but also that the defendant knew that the means of identification he used belonged to another person. Id. at 1892, 1894. The mens rea requirement in a criminal statute therefore must be applied to each element of the crime. Id. at 1894. Here, § 1464’s “content” element—that the speech be “obscene, indecent, or profane”—is clearly the element of the offense that transforms the otherwise innocent conduct of broadcasting into a criminal offense. Thus, to violate § 1464, one must act with some degree of foreknowledge with respect to the allegedly indecent material—not just the broadcast itself, irrespective of the actual content. 29 B. The FCC’S Practice Of Making Indecency Findings Without Scienter Is Unlawful. The FCC’s practice of taking indecency enforcement actions without making a supportable finding of scienter is unlawful, and its rationale for doing so fails for three reasons: (1) the FCC’s contention that scienter is not required for civil penalties for § 1464 violations is based on a misreading of Pacifica; (2) the FCC’s reliance on its administrative indecency rule (47 C.F.R. § 73.3999) is unlawful and unconstitutional; and (3) the “willful” standard applied by the FCC is tantamount to strict liability and thus falls far short of scienter. 1. Because § 1464 Requires Scienter, The FCC Cannot Find An Indecency Violation Where Scienter Is Lacking. The FCC’s civil enforcement authority is based on sub-paragraph (D) of the forfeiture statute, 47 U.S.C. § 503(b)(1)(D), which allows the FCC to issue forfeiture penalties against “[a]ny person who is determined by the Commission . . . to have . . . violated any provision of section . . . 1464 . . . of title 18.” As explained above, the forfeiture statute thus requires the FCC to find that the broadcaster “violated” all the elements of the offense codified in § 1464, and one of those elements is that the broadcaster acted with scienter specifically with regard to the content of the material broadcast. The FCC nonetheless refused to consider the application of the scienter requirement to its indecency regime, instead claiming that its decision not to impose a forfeiture made the issue 30 irrelevant. Remand Order ¶ 54. That is flatly wrong: scienter is an element of § 1464 itself. Regardless of whether the FCC seeks a forfeiture, a broadcaster cannot violate § 1464 without knowingly broadcasting the offending word. The FCC thus erred by purporting to find that the broadcasts in question were “in violation of Section 1464,” id. ¶¶ 53, 66, without the requisite finding of scienter. The FCC’s contention that scienter is not required for civil enforcement of § 1464 is based entirely on a misreading of a footnote in Pacifica. See Remand Order ¶ 54 (citing Pacifica, 438 U.S. at 739 n.13). Contrary to the FCC’s view, the Pacifica footnote expressly recognizes that the FCC’s civil enforcement power incorporates § 1464. See Pacifica, 438 U.S. at 739 n.13 (“[t]he statutes authorizing civil penalties incorporate § 1464, a criminal statute”) (citing the predecessor of 47 U.S.C. § 503(b)(1)(D)). The only point the Supreme Court was making in that footnote was that the facts of the case in Pacifica did not require the Court to decide whether criminal enforcement of § 1464’s ban on “indecency” would be constitutional, because no one in that case had been criminally prosecuted and the “legislative history of the provisions establishes” that civil and criminal enforcement are “independen[t]” and severable. Id. The Court in no way suggested that the elements of a § 1464 violation were (or even could be) different for civil and criminal enforcement. Indeed, as explained above, the First 31 Amendment requires scienter before either civil or criminal penalties may be imposed. The FCC’s refusal even to consider Fox’s scienter is fatal to its indecency and profanity findings. Remand Order ¶ 54. To enter an indecency finding against Fox, the FCC would need to establish that Fox acted intentionally. Given Fox’s efforts to edit the potentially objectionable content during the live broadcast using a delay mechanism, see id. ¶ 32, craft a script free of such expletives, see id. ¶ 33, provide ratings for both programs such that parents were empowered to block them using the V-chip, see id. ¶¶ 18, 59, and not air the language in broadcasts in later time zones, see Omnibus Order ¶ 112 n.164, it cannot be seriously argued that Fox knowingly or intentionally broadcast indecent language. Because the FCC did not and cannot find that Fox broadcast indecent material with scienter, the Remand Order must be vacated. 2. The FCC Cannot Evade The Mens Rea Requirement By Finding Indecency Violations Based On Its Indecency Rule. The FCC also has attempted to justify finding indecency violations without the requisite finding of scienter by claiming it was enforcing its own indecency rule, 47 C.F.R. § 73.3999. See Remand Order ¶ 54 n.169 (citing § 73.3999). But the FCC cannot perform an end-run around § 1464’s scienter requirement by resorting to § 73.3999 of its rules. As a purely administrative mechanism for 32 enforcing § 1464 itself, § 73.3999 is not an independent basis for indecency enforcement actions, and it carries the same scienter requirement as § 1464. The history of the indecency rule confirms as much. The original version of § 73.3999 was promulgated in response to a specific Congressional directive that the FCC create regulations “in accordance with section 1464” to enforce broadcast indecency restrictions on a 24-hour-per-day basis. See An Act Making Appropriations for the Departments of Commerce, Justice, and State, Pub. L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988). When the 24-hour indecency rule was invalidated by the D.C. Circuit, see Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), Congress responded with legislation requiring a limited safe harbor for indecent broadcasts between certain hours. See Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954. This was not some novel legislation addressing broadcast indecency afresh, but simply a directive that the FCC establish safe harbor hours during which it would not enforce § 1464. 10 Indeed, the Supreme Court recently described the Public Telecommunications Act of 1992 as nothing more than the means by which “Congress has instructed the Commission to enforce [§ 1464] between the hours of 6 a.m. and 10 p.m.” FCC v. Fox, 129 S. Ct. 1800, 1806 (2009). Consistent with 10 See 138 Cong. Rec. S7304, S7308 (daily ed. June 2, 1992) (statement of Sen. Byrd) (purpose of amendment was to “extend the FCC’s enforcement authority . . . through the hour of 12 o’clock midnight”). 33 that interpretation, the FCC has previously treated § 73.3999 as merely establishing the times of day during which § 1464 is to be enforced. 11 Even if § 73.3999 were independent of § 1464 and its scienter requirement, imposing forfeitures for “willful” violations of § 73.3999 would depend upon an unreasonable, and hence unlawful, interpretation of the forfeiture provisions in the Communications Act. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). The forfeiture statute provides in relevant part: (1) Any person who is determined by the Commission . . . to have – . . . (B) willfully or repeatedly failed to comply with any of the provisions of this chapter or of any rule, regulation, or order issued by the Commission . . .; . . . or (D) violated any provision of section . . . 1464 . . . of title 18; shall be liable to the United States for a forfeiture penalty. 47 U.S.C. § 503(b)(1)(B), (D). Congress purposefully separated the statutory provisions governing forfeitures for § 1464 violations (requiring scienter under sub-paragraph (D)) and forfeitures for violations of other administrative rules (requiring only a “willful” violation under sub-paragraph (B)). Any interpretation of the forfeiture statute must give effect to that statutory design. 11 See Indus. Guidance on the Comm’ns Case Law Interpreting 18 U.S.C. § 1464, 16 FCC Rcd. 7999, ¶ 5 (2001); see also Enforcement of Prohibitions Against Broad. Indecency in 18 U.S.C. § 1464, 7 FCC Rcd. 6464 (1992); Enforcement of Prohibitions Against Broad. Indecency in 18 U.S.C. § 1464, 8 FCC Rcd. 704 (1993). 34 Indeed, if the FCC could simply re-adopt § 1464 as an agency rule, and then issue indecency forfeitures under sub-paragraph (B) of the forfeiture statute for “willful” violations of that rule, sub-paragraph (D) of the statute would be rendered superfluous. Agency interpretations that nullify a statutory provision are obviously unreasonable. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). Further, Congress must be presumed to have given specific consideration to the FCC’s power to issue indecency forfeitures when it enacted the special authorization contained in § 503(b)(1)(D), and that specific authorization controls any alternative that relies on a more general forfeiture power in § 503(b)(1)(B). See Bobb v. Attorney Gen., 458 F.3d 213, 224 (3d Cir. 2006). Finally, the First Amendment would require scienter for a violation of § 73.3999 just as much as it requires scienter for a violation of § 1464. As explained supra, the First Amendment demands that any regulation penalizing expression contain a scienter requirement. See X-Citement Video, 513 U.S. at 71- 72. Because (on the FCC’s view) § 73.3999 regulates protected speech, the First Amendment limits the reach of that rule by requiring scienter as an element of any violation. 3. The FCC Cannot Find Indecency Violations Based On Merely “Willful” Conduct. Finally, the FCC’s suggestion that it can apply the “willful” standard of § 503(b)(1)(B), Remand Order ¶ 54, is simply wrong, because the “willful” 35 standard (as defined in the Communications Act and applied by the FCC) is tantamount to strict liability. In 1982, Congress amended the Communications Act to define “willful” as “the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act.” See Communications Amendments Act of 1982, Pub. L. No. 97-259, sec. 117, § 312, 96 Stat. 1087, 1095 (amending 47 U.S.C. § 312 by adding this definition in new subsection (f)). In other words, a broadcaster could “willfully” violate the Communications Act “regardless of whether there was an intent to violate the law.” 12 The FCC explicitly acknowledged that this lesser standard was the intent of Congress in Southern California Broadcasting Co., 6 FCC Rcd. 4387, ¶ 5 (1991), where it noted that “consistent with congressional intent, recent Commission interpretations of ‘willful’ do not require licensee intent to engage in a violation.” Because “willful” means something far short of scienter, it cannot be applied in the indecency context. 13 Indeed, as the FCC applies it in indecency cases, the 12 See H.R. Rep. No. 97-765, at 51 (1982) (Conf. Rep.), reprinted in 1982 U.S.C.C.A.N. 2261, 2295. By its terms, the new definition of “willful” applies only to administrative sanctions under § 312, but Congress apparently believed the new definition of “willful” would apply to § 503(b)(1)(A)-(B) as well. See id. 13 Section 312, which generally governs administrative sanctions, is carefully drafted to reflect the same separation found in § 503(b)(1) between violations of FCC rules (which are subject to the “willful” standard) and violations of § 1464 36 “willful” standard constitutes strict liability as to the content of the broadcast, and the agency does not require a broadcaster to know that the content it airs qualifies as indecent. See Remand Order ¶¶ 53-54, 64-66 & n.206; Omnibus Order ¶¶ 101- 106, 112-120. According to the FCC, broadcast licensees are absolutely responsible for anything they broadcast, regardless of their state of mind with respect to the exact content at issue. If a licensee were to broadcast material that violated an FCC rule, it thus could be liable for a forfeiture simply by virtue of the fact of having broadcast it—regardless of its knowledge or intent with respect to the specific content. For this reason, the FCC’s “willful” standard is inconsistent with the mens rea required to violate § 1464 and with the First Amendment, and a forfeiture for a merely “willful” broadcast of indecent material is unlawful. C. The FCC’s New Interpretation Of Profanity Is Indefensible. As an independent ground for its decisions, the FCC found the broadcasts at issue to be “profane” as well as “indecent.” See Remand Order, ¶¶ 40-41, 65. As this Court previously recognized, the statutory prohibition on “profane” speech has been a dead letter for decades, and the Commission’s attempt to revive it here cannot be reconciled with § 1464. See Fox v. FCC, 489 F.3d at 466-67. (which require scienter). See supra at 37. Specifically, § 312(a)(6) applies to violations of § 1464 for purposes of license revocations and does not include a “willfulness” element, unlike § 312(a)(3), (4), and (7). See 47 U.S.C. § 312(a). 37 Since 1927 courts have interpreted the term “profane” to mean “sacrilegious,” consistent with the plain meaning of the word. See id.; see also Webster’s Third New Int’l Dictionary 1810 (1993); Black’s Law Dictionary 1246 (8th ed. 2004). In the early days of § 1464, the government used the ban on “profane” speech to prosecute broadcasters for blasphemous language, and the courts affirmed this reading of the Radio Act. See, e.g., Duncan v. United States, 48 F.2d 128, 134 (9th Cir. 1931). Courts have continued to express this view through the years. See, e.g., Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966). The FCC also has consistently held this view. Indeed, by the 1970’s, the FCC recognized that punishing “profane” speech would raise serious questions under the Establishment Clause, and therefore the FCC not only omitted “profane” speech from its rule authorizing enforcement of § 1464, 14 but also urged Congress to repeal the statutory ban on profane speech. See 122 Cong. Rec. at 33359-61, 33364-65. The FCC has reiterated this position in recent years. See FCC, The Public and Broadcasting, 1999 WL 391297 (June 1999); Raycom Amer., Inc., 18 FCC Rcd. 4186, ¶ 3 (2003); Complaint by Warren B. Appleton, Brockton, Mass., 28 F.C.C.2d 36 (1971); Golden Globe Order ¶ 14 & n.37. 14 See 47 C.F.R. § 73.3999 (authorizing FCC enforcement only of ban on “obscene” and “indecent” speech). 38 Nevertheless, the Commission has now held that the term “profane” includes “vulgar and coarse language,” “limited to the universe of words that are sexual or excretory in nature or are derived from such terms,” that are “so grossly offensive to members of the public that they amount to a nuisance.” Omnibus Order ¶¶ 16- 19; see also Remand Order ¶ 40; Golden Globe Order ¶ 13 & n.35. But the FCC is not free to revisit the meaning of the statutory term “profane.” Section 1464 is a criminal statute, and the Supreme Court has held in a similar context that “[t]here cannot be one construction for the Federal Communications Commission and another for the Department of Justice. If we should give the [statute] the broad construction urged by the Commission, the same construction likewise would apply in criminal cases.” FCC v. ABC, 347 U.S. 284, 296 (1954) (construing 18 U.S.C. § 1304, also enforced by the FCC in forfeiture proceedings). The meaning of “profane” as blasphemous has been fixed in criminal prosecutions, and these judicial interpretations are now binding on the FCC. Accordingly, the FCC has no authority to re-interpret this criminal statute, nor would its interpretation of § 1464 (to the extent it is ambiguous) be entitled to any deference. See Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000). Indeed, if § 1464 is ambiguous, the FCC must apply the principle of lenity to this criminal statute and interpret “profane” narrowly. See United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517 (1992). 39 Moreover, the FCC’s reliance on Tallman is misplaced. Tallman involved a criminal prosecution that was tried solely as an obscenity case, where the definition of “profane” was not at issue on appeal. Tallman, 465 F.2d at 287 (“[W]e shall not address the belatedly advanced claim of error respecting the trial court’s failure to define ‘profane’ or ‘indecent.’”). The Seventh Circuit did note in dicta that other courts had defined the term “profane,” and cited with approval the Duncan and Gagliardo cases cited above. Id. at 296. Thus, Tallman actually refutes the FCC’s position, and the FCC’s attempt to quote other statements in Tallman out of context and to rely on them as supporting its current, broad reading of “profane” is unsustainable. See Fox Television Stations, Inc., 489 F.3d at 467. In addition, the FCC’s attempt to cherry-pick among historical definitions of “profane” from the concurring opinion in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 507-33 (1952) (Frankfurter, J., concurring) is misplaced. See Remand Order ¶ 41 n.119. These definitions were collected to show that “sacrilege” “is hopelessly vague when it goes beyond . . . ecclesiastical definiteness.” Joseph Burstyn, Inc., 343 U.S. at 520. In other words, the Joseph Burstyn definitions of “profane” are all connected to religious meanings like “blasphemy” and “sacrilege.” The FCC also ignores the canon that statutes should not be construed to render any word “superfluous.” TRW Inc., 534 U.S. at 31. By redefining 40 “profane” to be “limited to the universe of words that are sexual or excretory in nature or are derived from such terms” that are “grossly offensive,” the FCC has rendered that term synonymous with the agency’s expanded notion of “indecent.” Indeed, in every case in which the FCC has found a broadcast to be indecent under its new standard, it also has found the broadcast to be profane. This attempt to equate “profane” with “indecent,” or use the one as a back-up theory for the other, is impermissible. See Fox Television Stations, Inc., 489 F.3d at 467; Pacifica, 438 U.S. at 739-40 (“the words ‘obscene, indecent, or profane’ are written in the disjunctive, implying that each has a separate meaning”). The profanity findings in the Remand Order therefore must be set aside. II. THE FCC’S INDECENCY REGIME AS IT RELATES TO POTENTIALLY OFFENSIVE WORDS IS UNCONSTITUTIONAL. Even if the FCC’s new, expanded indecency regime were consistent with its statutory authority (as cabined by the First Amendment), it also would be clearly unconstitutional under additional First Amendment principles. As Justice Ginsburg stated, “there is no way to hide the long shadow the First Amendment casts” over the FCC’s regulation of indecency. FCC v. Fox, 129 S. Ct. at 1828 (Ginsburg, J., dissenting). “Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). For that reason, content-based restrictions on speech—like those embodied in the 41 FCC’s indecency regime—are presumed to be invalid, and the Commission bears the heavy burden of showing their constitutionality. See id.; United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 817 (2000). A. The FCC’s Current Indecency Regime Is Unconstitutionally Vague. The government cannot use a vague standard for the sensitive task of regulating constitutionally protected speech. See, e.g., Reno v. ACLU, 521 U.S. 844, 874 (1997); Perez v. Hoblock, 368 F.3d 166, 175 n.5 (2d Cir. 2004). The “literal scope” of § 1464 applies to expression protected by the First Amendment, and the vagueness doctrine therefore “demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974); see also Smith v. California, 361 U.S. at 151. Despite what the FCC claims, Remand Order ¶ 43, no court has ever reached a considered judgment that the FCC’s regulation of indecency is not vague. The Supreme Court in Pacifica expressly declined to consider a vagueness challenge to the FCC’s regime. See Pacifica, 438 U.S. at 742-43 (plurality opinion). Justice Powell’s concurring opinion touched on vagueness and predicted there would be no undue chill on broadcasters’ speech because of the FCC’s commitment to a now-abandoned restrained enforcement policy. See id. at 761 n.4 (Powell, J., concurring). Even ACT I, on which the FCC relies, frankly acknowledged that “the Court did not address, specifically, whether the FCC’s 42 definition was on its face unconstitutionally vague.” See ACT I, 852 F.2d at 1338. The D.C. Circuit itself engaged in no vagueness analysis of the FCC’s indecency policy, instead “infer[ring]” that the policy was not vague and welcoming correction by “Higher Authority” if it had misunderstood. Id. at 1338-39. 15 In the years since Pacifica and ACT I, however, a unanimous Supreme Court in Reno declared the nearly identical definition of “indecency” in the Communications Decency Act (“CDA”) unconstitutionally vague. See Reno, 521 U.S. at 870-74. The CDA defined indecency as any “communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Id. at 860 (quoting 47 U.S.C. § 223(d)). The Commission’s prohibition on broadcast indecency punishes speech based on the same three elements as the CDA: “First, material alleged to be indecent must fall within the subject matter scope of our indecency definition—that is, the material must describe or depict sexual or excretory organs or activities. . . . Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.” Omnibus Order ¶ 12 (quoting Indecency Policy Statement ¶¶ 7-8). According to 15 The FCC cannot rely on ACT I, because the D.C. Circuit’s holding (like Justice Powell’s concurrence in Pacifica) was expressly based on the policy of restraint that the FCC has now abandoned. See ACT I, 852 F.2d at 1340 n.14. 43 Reno, such a broad restriction on speech is unconstitutional. See Reno, 521 U.S. at 870. 16 The FCC seeks to escape the force of Reno’s vagueness analysis by pointing to a different portion of the opinion, on a different issue, in which the Court distinguished Pacifica. See Remand Order ¶ 45. In Reno, the government argued that the CDA was constitutional under Pacifica, which had “recognized special justifications for regulation of the broadcast media that are not applicable to other speakers.” Reno, 521 U.S. at 868. But these special justifications go to “the level of First Amendment scrutiny that should be applied to this medium,” id. at 870, not to whether a content-based regulation of speech is unconstitutionally vague. Whatever the appropriate level of First Amendment scrutiny, vagueness is an independent constitutional doctrine, and no regulation—of any medium—is permissible if it fails to give speakers adequate notice of what can and cannot be said. The FCC’s newly-expanded indecency policy, just like the CDA at issue in Reno, fails to do so. 16 Numerous courts have since cited Reno in striking down laws intended to ban or regulate the provision of material that may be indecent or harmful to minors. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Playboy Entm’t, 529 U.S. 803; PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.), reh’g & reh’g en banc denied, 372 F.3d 671 (4th Cir. 2004); ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003), aff’d 542 U.S. 656 (2004); Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999). 44 Even without Reno, the newly-expanded indecency standard is unconstitutionally vague under longstanding precedent. The Supreme Court has invalidated laws that prohibited speech “manifestly tending to the corruption of the youth,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59 (1963); that made it unlawful “to curse or revile or to use obscene or opprobrious language,” Lewis v. New Orleans, 415 U.S. 130 (1974); or that rendered it illegal to utter “opprobrious words or abusive language,” Gooding v. Wilson, 405 U.S. 518, 519 (1972). Under the Commission’s new regime, there are no workable criteria for determining what might violate the policy other than familiarity with each individual Commissioner’s sense of outrage at any given moment. 17 This is the very paradigm of a vague enactment, for it vests unbounded discretion to restrict speech with the government. E.g., Coates v. Cincinnati, 402 U.S. 611, 615-16 (1971); Houston v. Hill, 482 U.S. 451, 466-67 (1987). The vagueness in the FCC’s regime is exacerbated by the failure to articulate what is patently offensive under “contemporary community standards for the broadcast medium.” As Reno made clear, contemporary community standards can 17 For example, although the FCC’s indecency definition by its terms applies only to descriptions of sexual or excretory functions, and the FCC finds “fuck” indecent ostensibly because it “invariably invokes a coarse sexual image” (even though it often does not), the FCC has found other words that describe or depict sexual or excretory organs or activities, such as “ass,” “crap,” and “dick,” not indecent, without any explanation. See Omnibus Order ¶ 120, n.80; Complaints by Parents Television Council Against Various Broad. Licensees Regarding Their Airing of Allegedly Indecent Material, 20 FCC Rcd. 1931, 1938 (2005). 45 disambiguate the vagueness inherent in the indecency regime only if they are based on objective criteria, such as specifically-defined state laws in the Miller obscenity standard. See Reno, 521 U.S. at 873. Instead of objective legal standards, the Commission’s contemporary community standards for the broadcast medium are determined only by the Commission’s “collective experience and knowledge, developed through constant interaction with lawmakers, courts, broadcasters, public interest groups and ordinary citizens.” Remand Order ¶ 28; see also Infinity Radio License, Inc. 19 FCC Rcd. 5022, 5026 (2004). This assertion of “we-know- it-when-we-see-it”—or worse, “we-know-it-when-someone-with-political- influence-over-us-says-we-should-see-it”—is not a plainly-expressed legal standard that allows for predictive judgments by broadcasters. See FCC v. Fox, 129 S. Ct. at 1815-16 & n.4 (describing the influence of political pressure from Congress on the FCC’s indecency enforcement regime). Ironically, the “community standard” that is supposed to be an objective measure of what the public thinks to provide a check on the FCC’s discretion has become the opposite: a vehicle for the unfettered and unpredictable discretion of the FCC’s current members and their particular sensibilities. Cf. Hamling v. United States, 418 U.S. 87, 107 (1974) (community standards approach meant to ensure that speech “is judged neither on the basis of each [decisionmaker]’s personal opinion, nor by its effect on a particularly sensitive or insensitive group”). 46 Broadcasters are thus left without any guidelines that would enable them to understand what is forbidden and what is not, a situation the First Amendment does not allow. See, e.g., Reno, 521 U.S. at 871; Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. Rockford, 408 U.S. 104, 108-09 (1972); Gentile v. State Bar, 501 U.S. 1030, 1048 (1991). The Commission’s vague indecency standard impermissibly chills speech by forcing broadcasters to “steer far wider of the unlawful zone,” Speiser v. Randall, 357 U.S. 513, 526 (1958), and to restrict their expression “to that which is unquestionably safe.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964). According to the head of Broadcast Standards and Practices at Fox, the Commission’s vague indecency standards are having a “dramatic chilling effect.” A-322-25. The lack of clear limits affords government officials far too much discretion to curb disfavored expression. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992); Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988); Kolender, 461 U.S. at 358, 360; Beal v. Stern, 184 F.3d 117, 124 (2d Cir. 1999); cf. 47 U.S.C. § 326 (forbidding censorship). Live broadcasts are especially at risk, as unscripted news, sports or entertainment programs may unexpectedly include potentially offensive words. To try to avoid the unintentional broadcast of such content, “local broadcasters are responding by altering—or halting altogether—the one asset that makes local 47 stations so valuable to their communities: live TV.” 18 But delay technology in some ways exacerbates the chill on protected speech. Delay technology—which ultimately relies upon human judgments made in real-time—will never be 100% effective; it will instead be either 90% or 110% effective. See A-28-32 (describing limitations of delay technology). If the former, then some potentially objectionable content will be unintentionally broadcast, creating a risk of massive fines, the only rational response to which is to expand self-censorship to prevent that risk. If the latter, then too much content will be censored on the spot, at which point the chill on unobjectionable speech is already complete. And even when delay technology is employed, the FCC may nonetheless criticize a broadcaster’s efforts as insufficiently diligent or reasonable. See Remand Order ¶ 34. The burdens of relying on delay technology to avoid massive FCC fines will hit smaller, local broadcasters particularly hard. The costs of delay technology for a single station are approximately $100,000, see A-341, compared to median pre- tax profits for local stations in the smallest markets of only approximately $225,000 per year. See NAB/BCFM, Television Financial Report, Table 17, at 35 (2005). Unsurprisingly, then, many local stations are shutting down their coverage of live events where unexpected instances of potentially offensive words may be 18 See Allison Romano, Reporting Live. Very Carefully, Broadcasting & Cable, July 4, 2005, at 9, available at http://www.broadcastingcable.com/article/ CA623019.html. 48 unintentionally broadcast, exposing the broadcasters to massive FCC fines. See FCC v. Fox, 129 S. Ct. at 1836 (Breyer, J. dissenting) (describing response of local broadcasters to the new FCC enforcement program). The chilling effect of the FCC’s more aggressive indecency enforcement regime on local broadcasters is unmistakable. That chill has only grown colder with the recent enactment of the Broadcast Decency Enforcement Act of 2005 (see supra note 8), which increased ten-fold the maximum penalties for broadcasting obscene, indecent or profane language. Given the recent practice of treating the broadcasts of the same program by separate television affiliates as separate violations of § 1464 (see supra note 7), the aggregate fines for a single, fleeting instance of indecent speech could exceed $65 million. These harsh and unpredictable penalties have effectively compelled broadcasters to censor not just potentially indecent speech, but any speech—such as a live broadcast—that might inadvertently create the possibility that potentially offensive words will be broadcast. While the FCC says that this case would not merit the maximum fine, see id. ¶ 53 n.167, it does not disavow the possibility of massive forfeitures under the new statute, so the threat of confiscatory fines remains. See FCC v. Fox, 129 S. Ct. at 1826 (Stevens, J., dissenting) (acknowledging that “the threat of crippling financial penalties looms large” for broadcasters). “The chilling effect of such absolute accountability . . . is 49 incompatible with the atmosphere of free discussion contemplated by the First Amendment.” Brown v. Hartlage, 456 U.S. 45, 61 (1982). B. The Current Indecency Regime Fails Any Degree of Constitutional Scrutiny Because It Is Not Narrowly Tailored. As this Court previously recognized, “there is some tension in the law regarding the appropriate level of First Amendment scrutiny” applicable to content-based regulation of broadcast speech. Fox v. FCC, 489 F.3d at 464. In general, when the government wants to restrict the dissemination of protected speech, it must show that its regulation serves a compelling government interest. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 655 (1990). The FCC bears an especially heavy burden to justify both the nature of its asserted interest and the harms it is meant to address. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (“When the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural . . . .”) (internal quotations and citations omitted). In other decisions, however, the Supreme Court has suggested that because broadcast regulation involves “unique considerations,” it is enough if the governmental interest is “substantial,” as opposed to “compelling.” See FCC v. League of Women Voters, 468 U.S. 364, 376 (1984). But whatever standard applies, there is no precedent for finding either a “compelling” or a “substantial” 50 interest in regulating broadcast speech to prevent even fleeting exposure to a single word, as opposed to regulating the kind of “verbal shock treatment” at issue in Pacifica. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); cf. Pacifica, 438 U.S. at 750; id. at 760 (Powell, J., concurring); Cohen v. California, 403 U.S. 15, 21 (1971). Furthermore, those “unique considerations” that may have justified lesser First Amendment protections for broadcasters at one time no longer exist. Widespread changes in the media environment since the Supreme Court’s decisions in League of Women Voters and Pacifica undermine the rationales that broadcasting is “uniquely pervasive” and “uniquely accessible to children.” FCC v. Fox, 129 S. Ct. at 1819-1821 (Thomas, J., concurring) (explaining why “traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were”); see also Comcast Corp. v. FCC, Case No. 08-1114, Slip. Op. at 14 (D.C. Cir. Aug. 28, 2009) (acknowledging the “ever increasing competition” in the television marketplace); Sable Commc’ns, 492 U.S. at 127. “[T]he changes in technology and the availability of broadcast spectrum . . . certainly counsel a restrained approach to indecency regulation, not the wildly expansive path the FCC has chosen.” FCC v. Fox, 129 S. Ct. at 1828 n.5 (Stevens, J., dissenting). Simply put, “[t]he extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist 51 today.” See id. at 1822. Under these circumstances, it is appropriate for the Court to consider whether broadcasters’ speech should be entitled to the same First Amendment protections afforded other media. In any event, under either level of scrutiny, the government is required to use the least restrictive means of serving its asserted interest. See Playboy Entm’t, 529 U.S. 803; Reno, 521 U.S. 844. The current indecency regime is not sufficiently tailored to survive any variety of constitutional scrutiny. 1. Blocking Technology Is A Less Restrictive Alternative To Content-Based Regulation of Speech. “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Playboy Entm’t, 529 U.S. at 815 (emphasis added); Sable Commc’ns, 492 U.S. at 126. The Supreme Court has emphasized that “targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.” Playboy Entm’t, 529 U.S. at 815. Targeted blocking “enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners.” Id. The Supreme Court has relied on “market-based solutions such as programmable televisions, VCRs, and mapping systems” in analogous contexts and has concluded that voluntary approaches of this type undermine the need for direct government regulation of the content of speech. Id. at 821; see also Saving Private Ryan ¶ 15 (citing the 52 “voluntary parental code” transmitted at “each commercial break during the broad- cast”); Various Complaints Against the Cable/Satellite Television Program “Nip/Tuck,” 20 FCC Rcd. 4255, 4256-57 (2005). In 1996, Congress mandated that every television sold in the United States with a screen size of 13-inches or larger come equipped with blocking technology, commonly known as the “V-Chip.” 47 U.S.C. § 303(x). To make the V-Chip effective, Congress required the FCC prescribe a television ratings system unless the television industry created a voluntary rating system the FCC deemed “acceptable” under the statute. See Telecommunications Act of 1996, Pub. L. No. 104-104, § 551(b), (e), 110 Stat. 56, 140, 142. In response, the industry developed the “TV Parental Guidelines” rating system, 19 and the FCC has formally declared it to be effective to advise parents of indecent content and therefore “acceptable” under the statute. See Implementation of Section 551 of the Telecommunications Act of 1996, 13 FCC Rcd. 8232, ¶ 20 (1998) (“Video Programming Ratings Order”). 20 19 See Letter from Jack Valenti, President and CEO, Motion Picture Association of America, et al. to William F. Caton, Secretary, FCC (Jan. 17, 1997), available at http://www.fcc.gov/Bureaus/Cable/Public_Notices/1997/fc97034a.pdf. 20 Using this ratings system, the 2002 Billboard Music Awards and 2003 Billboard Music Awards were rated “TV-PG” and “TV-PG (DL),” respectively, such that the V-chip could have been effectively employed by parents to block both of those programs if desired. See Remand Order ¶¶ 59, 18. 53 The V-Chip makes blocking available for broadcast television and thus represents a less-restrictive alternative to content-based regulation of speech through indecency enforcement. Expanding the substantive reach of its indecency regime certainly cannot be justified given the increasing prevalence of technology like the V-Chip. “When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government’s obligation to prove the alternative will be ineffective to achieve its goals.” Playboy Entm’t, 529 U.S. at 816. The fact that individual blocking is now technologically feasible for the broadcast medium demonstrates that the expanded indecency regime is not narrowly tailored. Boos v. Berry, 485 U.S. 312, 329 (1988); R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); see also Carlin Commc’ns, Inc. v. FCC, 749 F.2d 113, 122 (2d Cir. 1984) (government has burden to justify its choice of a more restrictive alternative). Indeed, the prevalence of the V-Chip undermines Pacifica’s determination that broadcasting is “uniquely accessible to children,” thus removing any basis for affording less First Amendment protection to broadcasters. Pacifica, 438 U.S. at 748-50; see also Sable Commc’ns, 492 U.S. at 127 (emphasizing that Pacifica’s “narrow” holding was based on the “‘unique’ attributes of broadcasting”). The FCC’s suggestion that the V-Chip has not sufficiently penetrated the marketplace to be a less restrictive alternative, see Remand Order ¶ 51, is no 54 answer. The V-Chip need not be a perfect solution to be an effective less restrictive alternative for purposes of First Amendment analysis. See Ashcroft v. ACLU, 542 U.S. at 668 (accepting a proffered less restrictive alternative while acknowledging it was imperfect). In any event, between January 1, 2000—when the FCC mandated that all new televisions larger than 13 inches carry the V- Chip—and 2005, it is estimated that more than 200 million new televisions have been sold domestically. See Patrick Commc’ns, Broadcasting & Cable Yearbook 2007, at A-12 (2006). Since most of those televisions should have contained V- Chips, there is likely more than one V-Chip-equipped television for each of the approximately 110 million television households in the United States. See 2 Warren Commc’ns News, Television & Cable Factbook C-37 (2006). The FCC has failed to carry its burden of demonstrating that the V-Chip is ineffective when compared to banning speech. The FCC points to several studies critical of the TV Parental Guidelines, Remand Order ¶ 51 & nn.160, 162, but these cannot alter the FCC’s prior, official declaration, pursuant to a statutory requirement, that the ratings are effective and meet the requirements of the Act. See Video Programming Ratings Order ¶¶ 1, 2, 19, 24. The FCC thus cannot now ignore its finding that the V-Chip is an effective, less restrictive alternative to content-based regulation of speech. 55 2. The Commission’s New Enforcement Regime Does Not Materially Advance The Goal Of Protecting Children. When the government acts to restrict speech, the First Amendment requires that the measures at issue “in fact alleviate [the identified] harms in a direct and material way.” Turner Broad., 512 U.S. at 664. A statutory restriction on speech violates the First Amendment when it “provides only the most limited incremental support for the interest asserted.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73 (1983). “[A] prohibition that makes only a minute contribution to the advancement of a state interest can hardly be considered to have advanced the interest ‘to a material degree.’” Bad Frog Brewery v. New York State Liquor Auth., 134 F.3d 87, 99 (2d Cir. 1998). The Commission has made no attempt to establish that its expanded enforcement against isolated or fleeting exposure to potentially offensive language actually protects children, nor has it weighed the First Amendment costs to broadcasters and their adult listeners. Cf. Golden Globe Order ¶ 9. The Commission has never addressed any of the relevant considerations: whether there are any cognizable harms from even fleeting exposure to certain words, given that those words are commonly heard by children on cable television, at many sporting events, most likely at virtually every school playground, and sometimes even at home; whether a near-total ban on such words on broadcast television would be effective at shielding children from such words; and whether preventing such 56 harms is proportionate to the vastly greater First Amendment costs such a ban would entail. The FCC has never explained how the expanded policy furthers the concerns underlying indecency enforcement, which has always been grounded in shielding children from the “shock treatment” of prolonged exposure to disturbing subject matter, not simply from certain words per se. The Commission’s incomplete attempt to shield children from ever hearing fleeting expletives through draconian enforcement of § 1464 is not just ill-tailored to achieve the asserted interest; it is quixotic. Children today are exposed to potentially offensive words from many sources other than broadcast television. See A-37-38. Unsurprisingly, the Supreme Court has suggested that there is little difference between cable and broadcast television when it comes to the effects of television viewing on children. See Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 748 (1996) (plurality opinion). In the current media environment, it is fanciful to believe that aggressive enforcement of § 1464 against broadcasters will be effective in preventing children from being exposed to potentially offensive words. CBS, Inc. v. DNC, 412 U.S. 94, 127 (1973) (“sacrifice [of] First Amendment protections for so speculative a gain is not warranted”). C. The New Indecency Regime Routinely Relies On Prohibited Criteria. It is a fundamental precept of the First Amendment—and six Justices in Pacifica agreed—that the government is not entitled to punish protected speech 57 based on the government’s judgment of the social value of the speech. See Pacifica, 438 U.S. at 761 (Powell, J., concurring) (refusing to join portions of the plurality opinion because “I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most ‘valuable’ and hence deserving of the most protection, and which is less ‘valuable’ and hence deserving of less protection”); id. at 762-63 (Brennan, J., dissenting); id. at 777-79 (Stewart, J., dissenting); see also Playboy Entm’t, 529 U.S. at 826. The current indecency regime, however, ignores these principles and punishes speech based expressly on the FCC’s subjective opinion of the value of the speech. Compare Saving Private Ryan ¶ 14, with Golden Globe Order ¶ 9, and Omnibus Order ¶ 134; compare Omnibus Order ¶ 82 (expletives in The Blues: Godfathers and Sons not valuable), with id. at 2728 (Adelstein, dissenting) (expletives in The Blues: Godfathers and Sons necessary). There is no sensible way to justify the difference between these programs; it simply reflects the tastes of the individuals with seats on the FCC. The FCC denies it is regulating on the basis of its tastes, see Remand Order ¶ 28, but the Remand Order betrays just such subjective evaluations. Compare id. ¶ 24 (finding it “significant” that Pacifica’s three-judge plurality contemplated “a telecast of an Elizabethan comedy”), with id. ¶ 37 (belittling the importance of learning the winner of the Billboard Award for 58 Top 40 Mainstream Track). At bottom, the FCC found a § 1464 violation because—in the Commissioners’ opinion—the “Billboard Music Awards” simply are not culturally important enough to merit protection. The FCC has lost sight of what the First Amendment demands. The FCC must identify and articulate a compelling government interest, grounded in real and demonstrable harms, that is unrelated to the government’s opinion of the value of the speech. Then, it must craft standards that are narrowly tailored to further that compelling interest. Under the current regime, the FCC second-guesses broadcasters’ creative judgments based on whether—in the Commissioners’ opinion—a particular expletive was necessary to the story or to understanding a socially valuable viewpoint. It would be difficult to imagine a regime more inimical to the First Amendment, in which the FCC may intrude so heavily into the creative process, and where the FCC’s members sit in judgment, show by show, of the value of the speech and levy huge fines if the broadcaster has guessed wrong about the social value and artistic necessity of the expletive. 59 CONCLUSION For the foregoing reasons, the Remand Order should be vacated. Respectfully submitted, _________________________ Ellen S. Agress Maureen O’Connell FOX TELEVISION STATIONS, INC. 1211 Avenue of the Americas New York, NY 10036 (212) 252-7204 Carter G. Phillips R. Clark Wadlow Jennifer Tatel David S. Petron SIDLEY AUSTIN LLP 1501 K St. NW Washington, D.C. 20005 (202) 736-8000 Attorneys for Petitioner Fox Television Stations, Inc. 60 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a) This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,236 words (as determined by the Microsoft Word 2003 word-processing system used to prepare the brief), excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using the Microsoft Word 2003 word-processing system in 14-point Times New Roman font. _________________________ Jennifer Tatel Attorney for Petitioner Fox Television Stations, Inc. ANTI-VIRUS CERTIFICATION FORM Fox Television Stations, Inc. v. FCC, Case No. 06-1760-ag(L) I, Jennifer Tatel, certify that I have scanned for viruses the PDF version of the attached document that was submitted in this case as an email attachment to and that no viruses were detected. The name and version of the anti-virus detector that was used is McAfee VirusScan Enterprise version 8.5. ________________________ Jennifer Tatel Attorney for Petitioner Fox Television Stations, Inc. September 16, 2009 CERTIFICATE OF SERVICE I hereby certify that two true and correct copies of the foregoing document were served via first class United States Mail on the persons, at the addresses, and on that date that appear below, and that an electronic copy of this document in PDF format was served on these persons via electronic mail on the date that appears below. _________________________ Jennifer Tatel Attorney for Petitioner Fox Television Stations, Inc. Dated: September 16, 2009 Austin Schlick Joseph Palmore Federal Communications Commission Office of the General Counsel Room 8-A741 445 12 th Street, SW Washington, DC 20554 email: Joseph.Palmore@fcc.gov Attorney for Respondent FCC Thomas M. Bondy Attorney, Appellate Staff, Civil Division 950 Pennsylvania Avenue, N.W. Room 7535 MAIN Washington, DC 20530 email: thomas.bondy@usdoj.gov Attorney for Respondent United States Robert Corn-Revere, Esq. Davis Wright Tremaine LLP 1919 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006-3402 email: bobcornrevere@dwt.com Attorney for Petitioner CBS Broadcasting Inc. Seth P. Waxman Wilmer Hale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 email: seth.waxman@wilmerhale.com Attorney for Petitioners ABC Inc., WLS Television, Inc., KTRK Television, Inc. Wade H. Hargrove Brooks Pierce McLendon Humphrey & Leonard, LLP Wachovia Capital Center, Suite 1600 150 Fayetteville Street Raleigh, NC 27601 email: whargrove@brookspierce.com Attorneys for Petitioner KMBC Hearst- Argyle Television, Inc. and Intervenor ABC Television Affiliates Association Miguel A. Estrada, Esq. Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 email: MEstrada@gibsondunn.com Attorney for Intervenor NBC Universal, Inc. and NBC Telemundo License Co. Robert Long Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 email: rlong@cov.com Attorney for Intervenors NBC Television Affiliates and CBS Television Network Affiliates Andrew Jay Schwartzman, Esq. Media Access Project 1625 K Street, N.W. Washington, DC 20006 email: andys@mediaaccess.org Attorney for Intervenor Center for the Creative Community, Inc. d/b/a Center for Creative Voices in Media, Inc.