08-0841-ag(L) 08-1424-ag(Con), 08-1781-ag(Con), 08-1966-ag(Con) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ABC Inc., KTRK Television, Inc., WLS Television, Inc, Citadel Communications, LLC, WKRN, G.P., Young Broadcasting of Green Bay, Inc., WKOW Television Inc., WSIL-TV, Inc., ABC Television Affiliates Association, Cedar Rapids Television Company, Centex Television Limited Partnership, Channel 12 of Beaumont Incorporated, Duhamel Broadcasting Enterprises, Gray Television License, Incorporated, KATC Communications, Incorporated, KATV LLC, KDNL Licensee LLC, KETV Hearst-Argyle Television Incorporated, KLTV/KTRE License Subsidiary LLC, KSTP-TV LLC, KSWO Television Company Incorporated, KTBS Incorporated, KTUL LLC, KVUE Television Incorporated, McGraw-Hill Broadcasting Company Incorporated, Media General Communications Holdings LLC, Mission Broadcasting Incorporated, Mississippi Broadcasting Partners, New York Times Management Services, Nexstar Broadcasting Incorporated, NPG of Texas, L.P., Ohio/Oklahoma Hearst-Argyle Television Inc., Piedmont Television of Huntsville License LLC, Piedmont Television of Springfield License LLC, Pollack/Belz CommunicationCompany, Inc., Post-Newsweek Stations San Antonio Inc., Scripps Howard Broadcasting Co., Southern Broadcasting Inc., Tennessee Broadcasting Partners, Tribune Television New Orleans Inc., WAPT Hearst-Argyle Television Inc., WDIO-TV LLC, WEAR Licensee LLC, WFAA-TV Inc,. WISN Hearst-Argyle Television Inc., Petitioners, v. Federal Communications Commission and United States Of America Respondents, Fox Television Stations, Inc., NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting, Inc., Intervenors, Center for Creative Voices in Media, Future of Music Coalition, Amicus Curiae. ON PETITIONS FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION SUPPLEMENTAL BRIEF FOR THE FCC AND THE UNITED STATES TONY WEST ASSISTANT ATTORNEY GENERAL THOMAS M. BONDY ANNE MURPHY ATTORNEYS CIVIL DIVISION, APPELLATE STAFF U.S. DEPARTMENT OF JUSTICE WASHINGTON, D.C. 20530 AUSTIN C. SCHLICK GENERAL COUNSEL JACOB M. LEWIS ACTING DEPUTY GENERAL COUNSEL NANDAN M. JOSHI COUNSEL FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418–1740 TABLE OF CONTENTS Page i BACKGROUND .......................................................................................................1 DISCUSSION ............................................................................................................3 TABLE OF AUTHORITIES Page ii Cases Fox Television Stations, Inc. v. FCC, No. 06-1760-ag(L), ___ F.3d ___, 2010 WL 2736937 (2d Cir. July 13, 2010)..................................................................................................1, 3 Administrative Decisions Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue,” 23 FCC Rcd 3147 (2008) ....................................................................................................2 Statutes and Regulations 18 U.S.C. § 1464..............................................................................................2 47 C.F.R. § 73.3999(b) ....................................................................................2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 08-0841-AG(L), 08-1424-AG(CON), 08-1966-AG(CON) ABC, INC, ET AL., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Respondents. ON PETITIONS FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION SUPPLEMENTAL BRIEF FOR THE FCC AND THE UNITED STATES The Federal Communications Commission and the United States respectfully submit this supplemental brief in response to this Court’s order of July 22, 2010, directing the parties to address the impact of Fox Television Stations, Inc. v. FCC, No. 06-1760-ag(L), ___ F.3d ___, 2010 WL 2736937 (2d Cir. July 13, 2010), on the issues in this appeal. BACKGROUND This case arises out of a forfeiture order issued by the Commission imposing a monetary sanction on ABC and its affiliates (collectively, ABC) for violating federal statutory and regulatory restrictions on the broadcast of indecent material. See Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue,” 23 FCC Rcd 3147 (2008) (Forfeiture Order). See also 18 U.S.C. § 1464; 47 C.F.R. § 73.3999(b). The broadcast in question was an episode of the ABC drama NYPD Blue, the opening moments of which featured a shower scene containing images of an adult actress’s naked buttocks. To determine whether the nude scene violated indecency restrictions, the Commission applied its longstanding policy of examining the overall context of the broadcast in which the nudity appeared. 23 FCC Rcd at 3152 ¶ 12. Applying that contextual analysis to the specific facts of this case, the Commission found that ABC’s broadcast of this NYPD Blue episode outside of the 10 p.m. to 6 a.m. safe harbor for indecent broadcasts, see 47 C.F.R. § 73.3999(b), was actionably indecent. 23 FCC Rcd at 3152-55 ¶¶ 12-18. ABC sought review of the Forfeiture Order in this Court. ABC argued, among other things, that the Commission’s indecency policies were unconstitutionally vague. ABC Br. 43-50. On February 5, 2009, this Court (Wesley, Livingston, JJ., Restani, J., by designation) heard oral argument in the case. On July 13, 2010, another panel of this Court (Leval, Pooler, Hall, JJ.) issued its decision on remand from the Supreme Court in Fox. At issue was the 2 Commission’s determination that the 2002 and 2003 broadcasts of the Billboard Music Awards Show on the Fox television network contained indecent material because variants of the F-Word and the S-Word were gratuitously uttered during the broadcasts. The Fox panel reversed the Commission’s indecency determination. Rather than focusing on the particular facts before it, the panel in Fox broadly concluded that the Commission’s general approach to indecency enforcement “violates the First Amendment because it is unconstitutionally vague.” Slip op. 4, 2010 WL 2736937, at *1. Based on that conclusion, the panel “str[uck] down the FCC’s indecency policy.” Id. at 32, 2010 WL 2736937, at *16. DISCUSSION 3 Unlike Fox, which involved the gratuitous utterances of verbal expletives during live broadcasts of nationally televised awards shows, this case involves the scripted airing of images of adult nudity. The panel’s opinion in Fox does not turn on such distinctions, however. Rather, the panel in Fox held that the Commission’s contextual approach to applying the federal indecency statute is inconsistent with constitutional requirements, and accordingly invalidated the Commission’s indecency policy in its entirety. Because the contextual framework the Commission applied in Fox is the same one it applied in this case, the Fox decision appears to suggest that the Commission’s indecency policy is unconstitutionally vague even as applied to the very different facts of this case. A petition for rehearing and rehearing en banc in Fox would be due no later than August 27, 2010. Because of the substantial adverse consequences of the Fox panel’s decision for federal broadcast indecency enforcement and the decision’s inconsistency with precedent of the Supreme Court, this Court, and other courts of appeals, the interested agencies of the Federal Government are considering whether to file a petition. And because of the significance of the Fox panel decision for this case, it would be appropriate to defer issuing a merits decision in this case until the Court has had an opportunity to resolve any rehearing petition filed in Fox. If rehearing is granted, that action will have obvious implications for this case. If rehearing is denied, the Court would then be positioned to dispose of this case in light of the recent decision in Fox. 4 5 Respectfully submitted, Tony West Assistant Attorney General Thomas M. Bondy Anne Murphy Attorneys Civil Division, Appellate Staff U.S. Department of Justice Washington, D.C. 20530 Austin C. Schlick General Counsel /s/ Jacob M. Lewis Jacob M. Lewis Acting Deputy General Counsel Nandan M. Joshi Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1740 (telephone) (202) 418-2819 (fax) August 23, 2010 08-0841-ag IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ABC, Inc., et al., Petitioners v. Federal Communications Commission and United States of America, Respondents. CERTIFICATE OF SERVICE I, Jacob M. Lewis, hereby certify that on August 23, 2010, I filed the foregoing Supplemental Brief via overnight delivery service and an electronic copy in PDF format with the Clerk of the Court for the United States Court of Appeals for the Second Circuit. I also hereby certify that on this date true and correct copies of the foregoing document were served via first class United States Mail on the persons at the addresses below, and that an electronic copy of this document in PDF format was served on these persons via electronic mail. Alan N. Braverman John W. Zucker Susan L. Fox ABC, Inc. 77 West 66 th Street New York, NY 10024 Alan.braverman@disney.com John.zucker@disney.com Susan.fox@disney.com Counsel for: ABC Inc., KTRK Tele vision, Inc., WLS Television, Inc. Andrew Jay Schwartzman Parul P. Desai Media Access Project 1625 K Street, N.W. Washington, D.C. 20006 andys@mediaaccess.org paruld@mediaaccess.org Counsel for: Center for the Creative Voices in Media, Future of Music Coalitioin Anne Murphy Thomas M. Bondy Catherine G. O’Sullivan U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Anne.murphy@usdoj.gov Thomas.bondy@usdoj.gov Catherine.osullivan@usdoj.gov Counsel for: USA Carter G. Phillips Sidley Austin LLP 1501 K Street, N.W. Washington, D.C. 20005 cphillips@sidley.com Counsel for: Fox Television Stations, Inc. Christopher T. Craig Robert R. Sparks Sparks & Craig, LLP 6862 Elm Street McLean, VA 22101 ctcraig@sparkscraig.com rrsparks@sparkscraig.com Counsel for: Parents Television Council David Kushner Brooks, Pierce, McLendon, Humphrey & Leonard LLP P.O. Box 1800 Raleigh, NC 27602 dkushner@brookspierce.com Counsel for: WKOW Television, Incorporated, WSIL-TV Incorporated, Young Broadcasting of Green Bay, Incorporated Jack N. Goodman Paul R.Q. Wolfson Wilmer Cutler Pickering Hale and Dorr, LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Jack.goodman@wilmerhale.com Paul.wolfson@wilmerhale.com Counsel for: ABC Inc., KTRK Television, Inc., WLS Television, Inc. Mark J. Prak Brooks, Pierce, McLendon, Humphrey & Leonard LLP 150 Fayetteville Street Raleigh, NC 27601 mprak@brookspierce.com Counsel for: ABC Television Affiliates Association, etc. 2 3 Miguel A. Estrada Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 mestrada@gibsondunn.com Counsel for: NBC Telemundo License Co., NBC Universal, Inc. Robert L. Corn-Revere Davis Wright & Tremaine 1919 Pennsylvania Avenue, N.W. Washington, D.C. 20006 bobcornrevere@dwt.com Counsel for: CBS Broadcasting Inc. Robert W. Peters Robin S. Whitehead Morality in Media, Inc. 475 Riverside Drive New York, NY 10115 robinseeley@earthlink.net Counsel for: Morality in Media, Inc. Seth Paul Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 seth.waxman@wilmerhale.com Counsel for: ABC Inc., Thomas B. North Law Office of Thomas B. North 1387 N. State Street St. Ignace, MI 49781 judggy@hotmail.com Counsel for: Decency Enforcement Center for Television Wade Hampton Hargrove Brooks, Pierce, McLendon, Humphrey & Leonard LLP 150 Fayetteville Street Raleigh, NC 27601 whargrove@brookspierce.com Counsel for: Citadel Communications, LLC /s/ Jacob M. Lewis