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 OPPOSITION OF PETITIONER FOX TELEVISION STATIONS, INC. TO PETITION FOR REHEARING AND REHEARING EN BANC Ellen S. Agress Carter G. Phillips Maureen A. O’Connell Mark D. Schneider FOX TELEVISION STATIONS, INC. James P. Young 1211 Avenue of the 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. TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 STATEMENT OF THE CASE.................................................................................. 3 ARGUMENT ........................................................................................................... 10 CONCLUSION ........................................................................................................ 15 TABLE OF AUTHORITIES Page CASES Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) .................................................................... 12, 13 Dial Info. Servs. Corp. of N.Y. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991) ............................................................................. 13 FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009) .......................................................................... 2, 6, 11, 13 FCC v. Pacifica Found., 438 U.S. 726 (1978)...................................................................................... 2, 3, 4 Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007) ............................................................................. 2, 6 Fox Television Stations, Inc. v. FCC, No. 06-1760-ag (2d Cir. July 13, 2010).......................................................passim General Media Commc’ns, Inc. v. Cohen, 131 F.3d 273 (2d Cir. 1997) ............................................................................... 11 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ........................................................................................ 10 NAACP v. Button, 371 U.S. 415 (1963) ............................................................................................ 10 Reno v. ACLU, 521 U.S. 844 (1997) ........................................................................................... 14 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) .............................................................................................. 4 RULE Fed. R. App. P. 35 ................................................................................................ 3, 10 ADMINISTRATIVE DECISIONS Complaints Against Various Broad. Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975 (2004) ..................................................................................... 4 Complaints Against Various Television Broads. Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 2664 (2006) ......................................................................... 1, 5, 8, 9 Complaints Against Various Television Broads. Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 13299 (2006) ....................................................................... 5, 11, 15 Complaints Against Various Television Licensees Concerning Their Feb. 1, 2004 Broad. Of the Super Bowl XXXVIII Halftime Show, 19 FCC Rcd. 19230 (2004) ................................................................................... 4 Complaints Against Various Television Licensees Regarding Their Broad. on Nov. 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private Ryan”, 20 FCC Rcd. 4507 (2005) ..................................................................................... 9 Industry Guidance on the Comm’n’s Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broad. Indecency, 16 FCC Rcd 7999 (2001) ...................................................................................... 4 WGBH Educ. Found., 69 F.C.C.2d 1250 (1978) ...................................................................................... 4 INTRODUCTION In 2004, the Federal Communications Commission launched a new campaign against purportedly indecent content in broadcast programming, abandoning a restrained enforcement policy that had stood for 25 years. In its stead, the FCC ushered in a new indecency enforcement regime under which a wide range of broadcast content would suddenly be declared to violate 18 U.S.C. § 1464. As part of its new indecency policy, the Commission issued a number of indecency orders and forfeitures, many of which—like the original order under review here—purported to provide the broadcast industry with general guidance as to what content the FCC would now find to be impermissibly indecent.1 But the FCC’s new indecency policy failed to provide consistent outcomes and rationales, leaving broadcasters with no meaningful signposts that would help them avoid multi-million-dollar fines from the FCC. Fox Television Stations, Inc. (“Fox”) and other broadcasters responded by challenging the FCC’s new indecency policy on administrative, statutory and constitutional grounds. This court originally held that the FCC had failed to adequately explain its change in enforcement policy as required by the 1 See, e.g., Complaints Against Various Television Broads. Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 2664, ¶ 1 (2006) (“Omnibus Order”) (SPA-2) (ironically explaining order as an attempt to provide “guidance from the Commission about our rules” so that broadcasters would no longer “lack certainty regarding the meaning of our indecency and profanity standards”). Administrative Procedure Act, while also expressing doubts that the FCC’s new policy could withstand constitutional scrutiny. See Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 462 (2d Cir. 2007) (“Fox 1”). The Supreme Court reversed the APA ruling without reaching Fox’s constitutional arguments, FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009) (“Fox 2”), although some Justices noted that “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). On remand to this court, a panel unanimously concluded that the FCC’s current policy is impermissibly vague. Fox Television Stations, Inc. v. FCC, ___ F.3d ___, No. 06-1760-ag (2d Cir. July 13, 2010) (“Fox 3”). The FCC now asks the full court to rehear this case, claiming both that the panel’s ruling somehow conflicts with cases including FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and that the panel’s decision signals the end of all enforcement of the broadcast indecency statute. Neither of these exaggerated claims warrants further review by this Court. The outcome of the panel’s routine application of vagueness principles to the FCC’s indecency policy is unsurprising in light of the expansion of the enforcement policy beyond the boundaries of Pacifica and the constellation of contradictory decisions that have come out of the agency, and there are no precedents that require a different result. Rehearing en banc is therefore not required to preserve the uniformity of the Court’s opinions. Fed. R. App. P. 35(a)(1). And, contrary to the FCC’s over-reading of the panel opinion, the panel expressly acknowledged that the FCC could still attempt to craft a new indecency policy, provided it does so with sufficient clarity and respect for the First Amendment. The panel’s decision therefore does not produce a result of such exceptional importance that this case should be reheard en banc. Id. 35(a)(2). STATEMENT OF THE CASE In Pacifica, a fractured Supreme Court narrowly upheld the FCC’s authority to regulate broadcast indecency pursuant to 18 U.S.C. § 1464. As Justice Powell explained in his separate, controlling opinion, the Court approved “only the Commission’s holding that [George] Carlin’s [seven dirty words] monologue was indecent ‘as broadcast’ at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion.” 438 at 755-56 (Powell, J., concurring). Indeed, Justices Powell and Blackmun, who supplied the crucial votes for Pacifica’s 5-4 outcome, 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 759­60 (Powell, J., concurring). Both Justices were concerned that the FCC’s indecency standard could lead broadcasters to self-censor protected speech, but they voted to uphold the FCC’s order because “the Commission may be expected to proceed cautiously, as it has in the past.” Id. at 756, 760, 762 n.4 (Powell, J., concurring). The Court’s decision in Pacifica was thus “emphatically narrow.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989). And for roughly 25 years, the FCC carefully observed the limited scope of its authority under § 1464.2 In 2001, the FCC articulated new criteria it would use to determine whether broadcast content was indecent, along with case comparisons designed to “illustrate the various factors that have proved significant in resolving indecency complaints.”3 The FCC then changed course and started applying these criteria to reach novel and unexpected results, beginning with its 2004 indecency finding based on Bono’s fleeting statement during the Golden Globe Awards that his award was “fucking brilliant.”4 As the FCC abandoned its policy of restraint and dramatically expanded its broadcast indecency enforcement program, it failed to provide clear and consistent guidance to broadcasters, creating instead substantial 2 See, e.g., WGBH Educ. Found., 69 F.C.C.2d 1250, ¶ 10 (1978) (“We intend strictly to observe the narrowness of the Pacifica holding.”). 3 Industry Guidance on the Comm’n’s Case Law Interpreting 18 U.S.C. § 1464 & Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd 7999, ¶¶ 1, 10 (2001). 4 See Complaints Against Various Broad. Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975 (2004); see also Complaints Against Various Television Licensees Concerning their Feb. 1, 2004 Broad. of the Super Bowl XXXVIII Halftime Show, 19 FCC Rcd. 19230, ¶¶17-24 (imposing $550,000 fine). confusion about exactly what content would now be found to be indecent and thus expose broadcasters to massive forfeitures. In 2006, the FCC attempted to alleviate some of the acknowledged confusion surrounding its new indecency policy by issuing the Omnibus Order. In that order, the FCC resolved indecency complaints involving a substantial number of different broadcasts, in an attempt to illustrate what is and is not permissible under the new, expanded policy. Some of those indecency complaints involved Fox’s 2002 and 2003 live broadcasts of the Billboard Music Awards, and the FCC found certain celebrities’ utterances of unscripted, fleeting expletives during those shows to be indecent under the new policy. See Omnibus Order ¶¶ 106, 120 (SPA-32, 35). The Omnibus Order only increased the confusion about the scope of the policy, however, because there was no discernable consistency to the FCC’s rulings either within the Omnibus Order or compared with other still-valid FCC indecency precedents. Fox and the other broadcast networks responded to the new chill on their free speech rights by challenging the FCC’s Omnibus Order in this Court. After a voluntary remand to the FCC—in which the FCC reversed itself on some of the broadcasts at issue in the Omnibus Order5—this Court, by a 2-1 vote, initially concluded that the FCC’s failure to justify adequately the change in its indecency 5 Complaints Against Various Television Broads. Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 13299 (2006) (“Remand Order”) (SPA-77). enforcement policy was arbitrary and capricious in violation of the APA. See Fox 1, 489 F.3d at 446-47. In dicta, the Court also questioned whether any reasoned explanation for the FCC’s change in policy with respect to fleeting expletives “would pass constitutional muster.” Id. at 462. The panel majority 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 inconsistent results). A divided Supreme Court reversed and remanded the case for further consideration. See Fox 2, 129 S. Ct. 1800. The Supreme Court found that the FCC adequately justified its change in policy for purposes of the APA, id. at 1812, but it did not reach the constitutional arguments, instead remanding to allow this Court to “definitively rule on the constitutionality of the Commission’s orders.” Id. at 1819. Consistent with its preliminary views in Fox 1, the panel evaluated the constitutional issues and held on remand that, at a minimum,6 the FCC’s new indecency enforcement policy was unconstitutionally vague. Fox 3, slip op. at 23. 6 The panel did not address Fox’s other constitutional arguments. The panel’s decision was a straightforward application of routine constitutional principles to the FCC’s content-based regulation of speech. “The First Amendment requires nothing less” than “some degree of certainty [about] what the [indecency] policy is so that [broadcasters] can comply with it.” Id. at 24. Although the FCC has articulated criteria that it purports to apply in making indecency determinations, the panel observed that those factors “hardly give[] broadcasters notice of how the Commission will apply the factors in the future.” Id. at 23. The FCC’s indecency policy “results in a standard that even the FCC cannot articulate or apply consistently.” Id. at 26. The panel therefore found that the FCC’s newly expanded indecency policy is unconstitutionally vague and struck it down. Id. at 32. Although the specific broadcasts at issue in this case involved the use of fleeting expletives, the panel’s opinion necessarily swept more broadly. The Court could not determine the constitutional validity of the FCC’s decision on the broadcasts in question without addressing the entire policy that led to that decision, for several reasons. First, the scope of the panel’s vagueness holding was required in part by the breadth of the FCC’s new policy, which “creat[ed] a chilling effect that goes far beyond the fleeting expletives at issue here.” Id. at 1. More fundamentally, the panel examined how the FCC had applied its new indecency policy in numerous other cases because the FCC has repeatedly suggested that those other cases provide broadcasters with sufficient guidance to distinguish between content that is and is not allowed on television. See, e.g., Omnibus Order ¶ 2 (SPA-2) (resolving “a broad range of factual patterns” to “provide substantial guidance to broadcasters and the public about the types of programming that are impermissible under our indecency standard”); FCC Remand Br. 50-51 (arguing that the FCC’s “numerous decisions applying its indecency analysis to specific factual situations” serve to eliminate any vagueness inherent in the indecency standard). As the FCC has itself emphasized, it is important to consider these various indecency decisions—“[t]aken both individually and as a whole,” Omnibus Order ¶ 2 (SPA-2)—in order to understand the boundaries of its new indecency policy. The panel credited the FCC’s attempts to provide additional guidance, but at the end of the day, correctly decided that the FCC’s various indecency decisions are too inconsistent and ultimately irreconcilable to provide any meaningful guidance to broadcasters. This is evident from the recent indecency decisions cited by the panel. See Fox 3, slip op. at 27-28 (comparing contradictory FCC rulings on various expletives); id. at 31 (describing inconsistent application of FCC’s “bona fide news” and artistic necessity exceptions). For example, the FCC found that the broadcast of the movie Saving Private Ryan—which contained numerous instances of the words “fuck” and “shit”—was not indecent, because the expletives in the program were “integral to the film’s objective” and deleting them would “diminish[] the power, realism, and immediacy of the film experience.”7 Yet the FCC also found that the documentary The Blues: Godfathers and Sons—which included interviews with blues musicians who used the words “fuck” and “shit”—was indecent.8 There is no way to reconcile these two applications of the FCC’s indecency policy; it is inconceivable that “expletives could be more essential to the ‘realism’ of a fictional movie than to the ‘realism’ of interviews with real people about real life events.” Id. at 28. Unsurprisingly, the imprecision of the expanded indecency policy has chilled speech and led to widespread self-censorship by broadcasters. Broadcasters have declined to air such content as the Peabody Award-winning “9/11” documentary that contained raw footage of firefighters reacting to the September 11th attack and a live political debate where one of the politicians involved had previously used expletives on air. See id. at 29, 31 (citing examples). “[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature.” Id. at 32. To prevent this unconstitutional chill and remedy the 7 Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private Ryan”, 20 FCC Rcd. 4507, ¶ 14 (2005). 8 See Omnibus Order ¶ 78 (SPA-25). impermissible vagueness in the Commission’s approach, the panel struck down the FCC’s indecency policy and granted Fox’s petition for review. See id. ARGUMENT En banc review is disfavored and ordinarily will not be permitted unless rehearing is required to maintain uniformity in this Court’s decisions or to resolve a question of exceeding importance. Fed. R. App. P. 35(a). Neither condition is satisfied in this case. The FCC’s argument that the panel’s vagueness analysis was erroneous, FCC Pet. at 10-12, is both mistaken and irrelevant to whether en banc review should be granted. The FCC’s suggestion that the panel opinion somehow conflicted with Pacifica or other vagueness decisions at least invokes an appropriate consideration under FRAP 35, see id. at 12-14, but an examination of the purported conflicts reveals no actual threat to the uniformity of this Circuit’s law. Finally, the FCC acts as though the sky is now falling because the panel struck down its expanded indecency enforcement policy. Id. at 14-15. The panel expressly acknowledged, however, that the FCC may try again, and the panel’s opinion therefore does not create the kind of exceptionally significant issue for which en banc review is warranted. 1. The panel’s vagueness analysis was undoubtedly correct. “[S]tandards of permissible statutory vagueness are strict in the area of free expression.” NAACP v. Button, 371 U.S. 415, 432 (1963); see also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (“[W]hen a statute ‘interferes with the right of free speech or of association, a more stringent vagueness test should apply.’”). As this Court has recognized, regulations “that implicate constitutionally protected rights, including the freedoms protected by the First Amendment, are subject to ‘more stringent’ vagueness analysis.” General Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir. 1997) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)). Applying these principles in this case, the panel found that the FCC’s conflicting indecency decisions “hardly give[] broadcasters notice of how the Commission will apply the [patent offensiveness] factors in the future.” Fox 3, slip op. at 23. The FCC contends that Humanitarian Law Project blocks Fox’s vagueness challenge based on its claim that the content of Fox’s two broadcasts at issue here was “‘clearly proscribed.’” FCC Pet. at 11. This argument ignores the fact that the FCC’s new prohibition on isolated instances of “fuck” or “shit” was part of a change in its indecency policy, the justification for which the agency litigated all the way to the Supreme Court. See Fox 2, 129 S. Ct. at 1812 (noting that the FCC “forthrightly acknowledged that its recent actions have broken new ground”). Fox could hardly have known that its content was “clearly proscribed” when that content would have been permissible under the agency’s prior policy that proscribed only repetitive expletives. See, e.g., Remand Order ¶ 60 (SPA-102) (recognizing that “it was not apparent that Fox could be penalized for Cher’s comment at the time it was broadcast”). It also makes no difference that Fox voluntarily edited the content in question for later broadcasts. Fox maintains its own standards and practices for its broadcast content that are distinct from the FCC’s indecency requirements, and its business judgment to impose these internal standards on content that was unscripted and unexpected is not a concession that the original, unedited broadcasts were actionably indecent. 2. The panel’s vagueness holding creates no conflict with Pacifica or any other decision that would warrant rehearing by this Court. Pacifica contains no vagueness holding. Action for Children’s Television v. FCC, 852 F.2d 1332, 1338 (D.C. Cir. 1988) (“ACT”) (noting that the Supreme Court did not rule on vagueness). Moreover, despite the FCC’s protests, the panel did not hold that the FCC cannot take account of context in enforcing § 1464. To the contrary, the panel expressly recognized that “context is always relevant” to indecency determinations, and “we do not mean to suggest otherwise in this opinion.” Fox 3, slip op. 28. But as the panel recognized, “[i]t does not follow that the FCC can justify any decision to sanction indecent speech by citing ‘context.’” Id. The FCC attempts to do just that with the specious suggestion that the substance of its indecency policy is unchanged since Pacifica, FCC Pet. at 13, despite the FCC’s having gone all the way to the Supreme Court to justify what it acknowledged was a change in policy. Fox 2, 129 S. Ct. at 1812. The FCC’s expanded indecency policy has now moved so far beyond the narrow holding of Pacifica that there is simply no way for this Court’s analysis of the indecency policy to conflict with the actual decision in Pacifica. Similarly, the panel’s vagueness holding creates no conflict with ACT or Dial Information Services Corp. of N.Y. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991).9 ACT frankly acknowledged that “the Court did not address, specifically, whether the FCC’s definition was on its face unconstitutionally vague” but then simply “infer[red]” that the policy was not vague while welcoming correction by “Higher Authority” if it had misunderstood. ACT, 852 F.2d at 1338-39. ACT also expressly relied on the FCC’s formerly restrained approach to indecency enforcement, a policy that the agency has now abandoned. See Fox 3, slip op. at 22 n.8 (citing ACT, 852 F.2d at 1340 n.14). Dial Information Services in turn relied on ACT to find that a similar FCC definition of indecency in an analogous statutory scheme was not vague, without engaging in any independent vagueness analysis. Dial Info. Servs., 938 F.2d at 1541 (citing ACT, 852 F.2d at 1338-39). More importantly, both ACT and Dial Information Services preceded the Supreme Court’s opinion in Reno, which held that an indecency definition identical to the 9 The FCC has prudently abandoned its prior argument that Pacifica itself forecloses a vagueness challenge to indecency enforcement. See Fox 3, slip op. 21. Because Pacifica did not address vagueness, there is no possible conflict between the panel’s vagueness analysis and that Supreme Court precedent. FCC’s broadcast indecency policy was unconstitutionally vague. Reno v. ACLU, 521 U.S. 844, 870-74 (1997). Reno thus undermines both ACT and Dial Information Services on the vagueness question, and this Court must apply that controlling precedent in this case. Even if the additional guidance provided by the FCC in its various indecency decisions means that Reno does not directly compel a vagueness finding in this case, see Fox 3, slip op. 21, Reno trumps any possible conflict between the panel decision and both ACT and Dial Information Services. 3. Contrary to the Commission’s over-reading, the panel’s opinion does not make FCC enforcement of the broadcast indecency statute impossible. The panel opinion “do[es] not suggest that the FCC could not create a constitutional policy.” Id. at 32. The panel did not overturn Pacifica—under which the FCC has regulated indecent broadcasts for 30 years—or the underlying indecency statute. Nowhere does the panel demand “extreme precision,” as the FCC now pretends. FCC Pet. at 14. Rather, “[t]he First Amendment requires nothing less” than “some degree of certainty [about] what the [indecency] policy is.” Fox 3, slip op. 24. That degree of certainty may not entail a bright-line prohibition on certain words or images, as the FCC now suggests. FCC Pet. at 14-15. The FCC may devise some more flexible approach to regulating indecency that will meet its regulatory objectives, especially in light of the restraint shown by broadcasters in declining to air potentially offensive material even during the safe harbor period from 10 p.m. to 6 a.m. See Remand Order ¶ 29 (SPA-88) (citing networks’ policies against offensive language during all parts of the day). Articulating some reasonably clear indecency standard may well be challenging for the FCC. Such a regulatory burden, however, is a necessary cost imposed by the First Amendment whenever the government attempts to control the content of speech. It is a not a burden that the en banc court can or should lift from the FCC’s shoulders. CONCLUSION For the foregoing reasons, the petition for rehearing and rehearing en banc should be denied. Respectfully submitted, /s/ Carter G. Phillips Ellen S. Agress Carter G. Phillips Maureen O’Connell Mark D. Schneider FOX TELEVISION STATIONS, INC. James P. Young 1211 Avenue of the Americas David S. Petron New York, NY 10036 SIDLEY AUSTIN LLP (212) 252-7204 1501 K St. NW Washington, D.C. 20005 (202) 736-8000 Attorneys for Petitioner Fox Television Stations, Inc. CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a) 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 2007 word-processing system in 14-point Times New Roman font. /s/ David S. Petron David S. Petron Attorney for Petitioner Fox Television Stations, Inc. ANTI-VIRUS CERTIFICATION FORM Fox Television Stations, Inc. v. FCC, Case No. 06-1760-ag(L) I, David S. Petron, 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. /s/ David S. Petron David S. Petron Attorney for Petitioner Fox Television Stations, Inc. September 21, 2010 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. /s/ David S. Petron David S. Petron Attorney for Petitioner Fox Television Stations, Inc. Dated: September 21, 2010 Jacob M. Lewis Thomas M. Bondy Federal Communications Commission Nancy Garrison Office of the General Counsel U.S. Department of Justice 445 12th Street, S.W. 950 Pennsylvania Avenue, N.W. Washington, DC 20554 Washington, DC 20530 email: Jacob.Lewis@fcc.gov email: Thomas.bondy@usdoj.gov Counsel for Respondent FCC Nancy.garrison@usdoj.gov Counsel for Respondent United States Robert Corn-Revere Seth P. Waxman Davis Wright Tremaine LLP Wilmer Hale 1919 Pennsylvania Avenue, N.W. 1875 Pennsylvania Avenue, N.W. Suite 800 Washington, DC 20006 Washington, DC 20006 email: seth.waxman@wilmerhale.com email: bobcornrevere@dwt.com Counsel for ABC Inc., ABC Television Counsel for CBS Broadcasting Inc., Affiliates Association, KMBC Hearst-Fox Television Stations, Inc. Argyle Television, Inc., KTRK Television, Inc. and WLS Television, Inc. Wade H. Hargrove Brooks Pierce McLendon Humphrey & Leonard, LLP P.O. Box 1800 Raleigh, NC 27603 email: whargrove@brookspierce.com Counsel for ABC Inc., ABC Television Affiliates Association, KMBC Hearst-Argyle Television, Inc., KTRK Television, Inc. and WLS Television, Inc. Robert A. Long Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 email: rlong@cov.com Counsel for NBC Television Affiliates Glen Robinson University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 email: gor@virginia.edu Counsel for Glen Robinson, Amicus Curiae Robert R. Sparks Sparks & Craig, LLP 6862 Elm Street McLean, VA 22101 email: rrsparks@sparkscraig.com Counsel for Parents Television Council Andrew Jay Schwartzman Media Access Project 1625 K Street, N.W. Washington, DC 20006 email: andys@mediaaccess.org Counsel for Center for the Creative Community, Inc., Future of Music Coalition Miguel A. Estrada Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 email: mestrada@gibsondunn.com Counsel for NBC Telemundo License Co. John B. Morris Center for Democracy & Technology 1634 I Street, N.W. Washington, DC 20006 email: jmorris@cdt.org Counsel for Adam Thierer, Amicus Curiae and Center for Democracy and Technology Robin S. Whitehead Morality in Media, Inc. 475 Riverside Drive New York, NY 10115 email: robinseeley@earthlink.net Counsel for Morality in Media, Inc., Amicus Curiae Marjorie Heins Law Office of Marjorie Heins 170 West 76 Street, #301 New York, NY 10023 email: margeheins@verizon.net Counsel for American Booksellers Foundation, et al., Amicus Curiae Thomas B. North Law Office of Thomas B. North 1387 N. State Street St. Ignace, MI 49781 email: judggy@hotmail.com Counsel for Thomas B. North, Amicus Curiae J. Joshua Wheeler Thomas Jefferson Center for the Protection of Free Expression 400 Worrell Drive Charlottesville, VA 22911 email: jjw@tjcenter.org Counsel for The Media Institute, Amicus Curiae Susan Weiner NBC Universal, Inc. 30 Rockefeller Plaza New York, NY 10112 email: Susan.weiner@nbcuni.com Counsel for NBC Universal, Inc. Nancy Winkelman Schnader Harrison Segal & Lewis LLP 1600 Market Street Suite 3600 Philadelphia, PA 19103-7286 email: nwinkelman@schnader.com Counsel for Former FCC Commissioners and Officials, Amici Curiae Steve H. Aden Alliance Defense Fund 801 G Street, N.W. Washington, DC 20001 email: saden@telladf.org Counsel for Family Research Counsel, Amicus Curiae