06-1760-ag ( L ) IN 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, —against— FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondents, (caption continued on inside cover) ON PETITIONS FOR REVIEW OF ORDERS OF THE FEDERAL COMMUNICATIONS COMMISSION RESPONSE OF PETITIONERS CBS BROADCASTING INC., ABC, INC., WLS TELEVISION, INC., AND KTRK TELEVISION, INC. AND INTERVENORS NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO., AND ABC TELEVISION AFFILIATES ASSOCIATION TO PETITION FOR REHEARING AND REHEARING EN BANC ROBERT CORN-REVERE RONALD G. L ONDON DAVIS WRIGHT & TREMAINE 1919 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006-3401 (202) 973-4200 06-2750-ag (con), 06-5358-ag(con) d JONATHAN H. ANSCHELL CBS BROADCASTING INC. 4024 Radford Avenue Studio City, California 91604 SUSANNA M. LOWY CBS BROADCASTING INC. 51 West 52nd Street New York, New York 10019 Counsel for Petitioner CBS Broadcasting Inc. September 21, 2010 (additional Counsel listed on inside cover) 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. JOHN W. ZUCKER ABC, INC. 77 West 66th Street New York, New York 10023 SETH H. WAXMAN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 Counsel for Petitioners ABC, Inc., WLS Television, Inc., and KTRK Television, Inc. SUSAN WEINER NBC UNIVERSAL, INC. 30 Rockefeller Plaza New York, New York 10112 MIGUEL A. ESTRADA GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Counsel for Intervenors NBC Universal, Inc. and NBC Telemundo License Co. WADE HARGROVE MARK J. PRAK DAVID KUSHNER BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP 150 Fayetteville Street, Suite 1600 Raleigh, North Carolina 27601 (919) 839-0300 Counsel for Intervenor ABC Television Affiliates Association i TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................... ii INTRODUCTION ................................................................................................................ 1 ARGUMENT .......................................................................................................................... 2 I. THE PANEL DECISION IS CONSISTENT WITH SUPREME COURT AND CIRCUIT PRECEDENT.............................................................. 2 II. THE PANEL DECISION DOES NOT CREATE AN ISSUE OF EXCEPTIONAL IMPORTANCE REQUIRING REHEARING .................. 4 CONCLUSION ......................................................................................................................6 ii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) ...................................................................................3 Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991) ...................................................................................2, 3 FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009)...................................................................................................4 FCC v. Pacifica Foundation, Inc., 438 U.S. 726 (1978) ..........................................................................................1, 3, 4, 5 Reno v. ACLU, 521 U.S. 844 (1997) .......................................................................................................3 Watson v. Geren, 587 F.3d 156 (2d Cir. 2009) .........................................................................................5 FEDERAL STATUTES 18 U.S.C. § 1464 ........................................................................................................................2 RULES Fed. R. App. Proc. 35. ..............................................................................................................1 Fed. R. App. Proc. 40. ..............................................................................................................1 ADMINISTRATIVE DECISIONS Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006) .............................................................................................5 1 Pursuant to this Court’s Order of August 31, 2010, CBS Broadcasting Inc.; ABC, Inc., WLS Television, Inc., and KTRK Television, Inc.; NBC Universal, Inc. and NBC Telemundo License Co. (collectively “the Networks”); and the ABC Television Affiliates Association (the “Affiliates”) hereby oppose Respondents’ Petition for Rehearing and Rehearing En Banc (“FCC Petition”). INTRODUCTION The FCC Petition falls far short of the F.R.A.P. 35(a) mandate that rehearing en banc “is not favored and will not be granted” unless the decision conflicts with other circuit precedent or involves a question of “exceptional importance.” The Commission attempts to satisfy the Rule’s high standard by making the hyperbolic assertion that the Fox decision “appears effectively to preclude the Commission from enforcing federal broadcast indecency restrictions,” FCC Petition at 10, but this distorts what the panel actually held and misreads FCC v. Pacifica Foundation, Inc., 438 U.S. 726 (1978). The panel merely observed that broadcasters simply want “some degree of certainty” regarding the meaning of the FCC’s indecency policy and properly held “[t]he First Amendment requires nothing less.” Panel Dec., slip op. at 24. This straightforward holding neither conflicts with any decision of the Supreme Court or this Court, nor raises any issue of exceptional importance that would justify rehearing by the panel pursuant to F.R.A.P. 40 or rehearing en banc under F.R.A.P. 35. 2 ARGUMENT I. THE PANEL DECISION IS CONSISTENT WITH SUPREME COURT AND CIRCUIT PRECEDENT The Fox panel held that the FCC failed to articulate a discernable indecency standard by which broadcasters can accurately predict what speech is prohibited. Panel Dec., slip op. at 22-29. It did not hold that the governing statute, 18 U.S.C. § 1464, the corresponding FCC rule, or the Commission’s general definition of indecency violate the First Amendment. Accordingly, there is no possible conflict between the Fox panel’s decision and this Court’s earlier opinion in Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), as the FCC claims. Unlike this case, Dial Information Services involved a facial challenge to Sections 223(b)-(c) of the Communications Act and implementing rules governing dial-a-porn service. This Court reversed and remanded the district court’s order preliminarily enjoining enforcement altogether. See 938 F.2d at 1536, 1539-40. By contrast, the panel decision here held only that “the FCC’s current policy fails constitutional scrutiny.” Panel Dec., slip op. at 32 (emphasis added). See also id. at 18, 22-23, 29. It did not enjoin Section 1464. To the contrary, it stressed that “[w]e do not suggest that the FCC could 3 not create a constitutional policy.” 1 The Fox decision thus poses no conflict. 2 The Commission’s claim that the panel decision “strikes at the heart of the longstanding context-based approach to indecency enforcement” as approved in Pacifica is equally unfounded. FCC Petition at 9. In particular, the panel expressly disavowed the FCC’s straw man assertion that it was disapproving application of the agency’s “judicially approved indecency approach in any context.” See FCC Petition at 2 (emphasis in original). Analyzing Pacifica, the panel clearly acknowledged that “context is always relevant, and we do not mean to suggest otherwise in this opinion.” Panel Dec., slip op. at 28. Instead, it focused carefully on what the Supreme Court actually meant by that concept. The panel correctly concluded that Pacifica stressed the importance of context “in order to emphasize the limited scope of its holding.” Id. at 28-29. Contrary to the Commission’s reading of Pacifica, a majority of the Court expressly rejected an approach that would permit the government to judge indecency by engaging in an ad hoc weighing of the relative merit of expression against its “offensiveness.” 1 Panel Dec., slip op. at 32. The panel also correctly found that Reno v. ACLU, 521 U.S. 844 (1997), overruled Dial Information Services. Id. at 22 n.8. However, both Reno and Dial Information Services involved facial challenges to Section 223’s definition of in- decency. The panel cogently distinguished those facial challenges from the Commission’s application of its policy in the broadcast context. Id. at 21. 2 This fact likewise defeats the asserted conflict with Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) (“ACT I”), which merely upheld the FCC’s generic indecency definition. The Fox panel also distinguished ACT I based on the D.C. Circuit’s stated understanding that the generic indecency definition would be applied only under a “restrained enforcement policy,” the very thing the FCC abandoned in this case. Panel Dec., slip op. at 22 n.8. 4 Pacifica, 438 U.S. at 761 (Powell, J., concurring). See also id. at 762-63 (Brennan, J., dissent- ing). The Fox panel merely pointed out that the FCC’s attempt to expand contextual analysis beyond what was contemplated in Pacifica had created an opaque policy, and that the First Amendment requires “discernable standards by which individual contexts are judged.” Panel Dec., slip op. at 28-29. The Commission’s manifest desire to expand its authority beyond what was approved in Pacifica is not a valid justification for rehearing. Nothing in the panel decision is inconsistent with FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), in which the Supreme Court remanded the case to resolve the networks’ constitutional challenges. The majority observed that the Commission’s change in policy may cause broadcasters “to avoid certain language that is beyond [FCC] reach under the Constitution,” and that whether such changes violate the First Amend- ment “will be determined soon enough, perhaps in this very case.” Id. at 1811 (emphasis added). See also id. at 1826, 1829 (Stevens, J., dissenting) (describing constitutional impact of the “FCC’s shifting and impermissibly vague indecency policy”). The panel on remand did nothing more than decide the remaining issues the Supreme Court requested be reviewed. II. THE PANEL DECISION DOES NOT CREATE AN ISSUE OF EXCEPTIONAL IMPORTANCE REQUIRING REHEARING The Fox panel’s mandate that the Commission review its indecency policy and formulate standards that survive First Amendment scrutiny is not an issue of exceptional importance. The Commission’s claim that the task is “seemingly impossible” and that it 5 is precluded from enforcing federal broadcast indecency restrictions unless it can devise a standard that “deemphasizes context,” FCC Petition at 10, simply misreads Pacifica, as noted above. The panel merely ordered the FCC to articulate a standard that respects Pacifica’s narrow holding. Notwithstanding the Commission’s speculation about the difficulty of the task, requiring the agency to apply an existing standard is not properly considered a “question of exceptional importance” that requires rehearing. Watson v. Geren, 587 F.3d 156, 158 (2d Cir. 2009). The Commission’s argument that the panel “all but ignore[d] the specific broad- casts at issue” and focused instead on “other FCC decisions,” id. at 9-10, overlooks the very purpose of the Omnibus Order of which the decisions were a part. The orders were announced as two among a “broad range of factual patterns” that were to be taken “both individually and as a whole” to provide “substantial guidance” about “the types of programming that are impermissible under our indecency standard.” Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 ¶ 2 (2006). The panel did nothing more than attempt to apply the standards articulated by the Commission to some of the other factual scenarios discussed in this same agency order, but found “little rhyme or reason” to the Commission’s policy. Panel Dec., slip op. at 25-26. It hardly is controversial to require the FCC to be coherent when regulating expression. Finally, it seems ironic, to say the least, for the FCC to claim that a requirement that it articulate a constitutionally sound indecency policy is somehow “exceptional” or 6 too difficult. Earlier in these proceedings, the Commission sought, and this Court granted, remand of the challenged indecency policy so that it could attempt to explain its position. Order, Sept. 7, 2006. The panel decision provides the FCC with just such an opportunity once again. The Commission may not like the Fox panel’s First Amendment holding, but that is no basis for granting rehearing. CONCLUSION For these and the foregoing reasons, the Networks and Affiliates respectfully submit that rehearing in this matter should be denied. Respectfully Submitted, /s/ Robert Corn-Revere JONATHAN H. ANSCHELL CBS BROADCASTING INC. 4024 Radford Avenue Studio City, CA 91604 SUSANNA M. LOWY CBS BROADCASTING INC. 51 West 52 nd Street New York, NY 10019 ROBERT CORN-REVERE* RONALD G. LONDON DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave., N.W. Suite 800 Washington, D.C. 20006-3401 (202) 973-4200 *Counsel of Record Counsel for Petitioner CBS Broadcasting Inc. JOHN W. ZUCKER ABC, INC. 77 West 66 th Street New York, NY 10023 SETH P. WAXMAN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 Counsel for Petitioners ABC, Inc., WLS Television, Inc., and KTRK Television, Inc. 7 SUSAN WEINER NBC UNIVERSAL, INC. 30 Rockefeller Plaza New York, NY 10112 MIGUEL A. ESTRADA GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., NW Washington, DC 20036 (202) 955-8500 Counsel for Intervenors NBC Universal, Inc. and NBC Telemundo License Co. WADE H. HARGROVE MARK J. PRAK DAVID KUSHNER BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD L.L.P. 150 FAYETTEVILLE STREET SUITE 1600 Raleigh, NC 27601 (919) 839-0300 Counsel for Intervenor ABC Television Affiliates Association CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(5)-(7), 35(e) and 40(b) This brief complies with the volume limitation of Fed. R. App. P. 35(e) and 40(b) because it contains 7 pages, 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 it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Garamond. /s/ Ronald G. London Ronald G. London CERTIFICATE OF SERVICE I hereby certify that on this 21st day of September 2010, one copy of the foregoing Response of Petitioners CBS Broadcasting Inc.; ABC, Inc., WLS Television, Inc., and KTRK Television, Inc.; Intervenors NBC Universal, Inc. and NBC Telemundo License Co.; and Intervenor ABC Television Affiliates Association was sent by First Class mail, postage prepaid, to: Austin Schlick, General Counsel Jacob M. Lewis, Acting Deputy General Counsel Nandan M. Joshi, Counsel Federal Communications Commission 445 12 th Street, S.W. Washington, DC 20554 Tony West Thomas M. Bondy Anne Murphy Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7535 MAIN Washington, DC 20530 Robert Long, Esq. Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, DC 20004 Andrew Jay Schwartzman, Esq. Media Access Project 1625 K Street, N.W. Washington, DC 20006 Carter G. Phillips, Esq. Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20006 In accord with Local Rule 25, I further certify that on this date a copy of this brief in PDF format was emailed to the Clerk at agencycases@ca2.uscourts.gov and to the counsel listed above, and that the PDF brief has been scanned for viruses and no viruses were detected. /s/ Ronald G. London Ronald G. London