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FCC & USA v. CBS Corp., et al., No. 11-1240 (Sup. Ct.)

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Released: May 22, 2012

No. 11-1240

In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

In the Supreme Court of the United States
No. 11-1240
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
CBS CORPORATION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

The court of appeals in this case held that the Fed-
eral Communications Commission (FCC or Commission)
had impermissibly penalized respondents for the broad-
cast of brief nudity “without supplying notice” that such
material could be deemed indecent. Pet. App. 30a; cf. id.
at 93a (Scirica, J., dissenting) (“CBS was adequately on
notice” that “fleeting images could, depending on the
context, be deemed indecent”). The respondents in FCC
v. Fox Television Stations, Inc., No. 10-1293 (argued
Jan. 10, 2012) (Fox II), have asserted a fair-notice chal-
lenge to their liability for the broadcast of nudity that
they likewise characterize as brief. Pet. 17. Because of
the clear overlap between the two cases, the Court
should hold this petition for Fox II and then dispose of
(1)

2
the petition as appropriate in light of its decision in that
case.
1. Respondents characterize the government’s re-
quest that its petition be held for Fox II as “inexplica-
ble,” and they contend that “Fox II is irrelevant to
whether this petition should be granted because there is
no overlap of issues.” Br. in Opp. 1. Respondents are
correct that the question presented in Fox II involves
the constitutionality of the Commission’s indecency en-
forcement policies under the First and Fifth Amend-
ments, while the question presented here involves the
Administrative Procedure Act (APA), 5 U.S.C. 551 et
seq. As the government has explained (Pet. 17-18), how-
ever, the proper disposition of both cases may turn in
part on whether FCC precedent provided adequate no-
tice that the broadcast of brief nudity could be consid-
ered indecent. Like the Third Circuit’s decision in this
case, the fair-notice challenge in Fox II rests in part on
the view that enforcement of the FCC’s indecency re-
gime against brief displays of nudity represents a depar-
ture from prior Commission practices. The two cases
thus raise a significant common issue, even though the
broadcasters in Fox II have asserted constitutional chal-
lenges while respondents have invoked the APA.
If the Court in Fox II rejects the broadcasters’ fair-
notice claim, its reasoning may undermine the court of
appeals’ conclusion in this case that the Commission had
categorically exempted brief images of nudity from inde-
cency enforcement. That possibility provides a suffi-
cient basis for holding this petition. Respondents assert
(Br. in Opp. 6 n.2) that the Fox II broadcasters’ fair-no-
tice claims “are unrelated to the APA issue in this case,”

3
but they offer no argument in support of that conten-
tion.*
2. As the petition for certiorari explains (at 14-17),
the court of appeals’ decision is irreconcilable with both
Commission precedent and this Court’s decision in FCC
v. Fox Television Stations, Inc., 556 U.S. 502 (2009)
(Fox I). See generally Pet. App. 60a-93a (Scirica, J.,
dissenting). As a general matter, the FCC views brevity
as a factor militating against a finding of indecency, but
not as the basis for a categorical exemption. The one
historical exception, under which the Commission previ-
ously treated brevity as the basis for a per se rule of
non-indecency, was for cases involving non-literal exple-
tives. Pet. 15-16; Fox I, 556 U.S. at 508. In the policy
change upheld by this Court in Fox I, the Commission
repudiated that “per se” exemption for brief expletives
and stated that it would instead examine such broad-
casts consistently with its “overall enforcement policy,”
id. at 518 (citation omitted), under which brevity was a
relevant but not dispositive factor.
This reading of Commission precedent is not “revi-
sionist history” (Br. in Opp. 8), nor was the Fox I
Court’s endorsement of it “dictum” (id. at 10). This ac-
* This is not the first time that respondents have opposed a hold for
Fox in this case. The government filed a petition for a writ of certiorari
challenging the court of appeals’ first decision in this case and asked the
Court to hold the petition for the then-pending FCC v. Fox Television
Stations, Inc., 556 U.S. 502 (2009) (Fox I). See Pet. 12. Respondents
opposed that request, asking the Court to deny the petition and con-
tending that the government’s “claim of ‘substantial overlap’ between
the Third Circuit’s decision and [Fox I ] falls far short of the mark.” Br.
in Opp. at 1, FCC v. CBS Corp., 556 U.S. 1218 (2009) (No. 08-653). After
its decision in Fox I, the Court granted the petition, vacated the court
of appeals’ decision, and remanded for further proceedings. See 556
U.S. 1218 (2009).

4
count instead was the basis for the Court’s holding in
Fox I that “the agency’s reasons for expanding the
scope of its enforcement activity were entirely rational,”
i.e., that “[i]t was certainly reasonable to determine that
it made no sense to distinguish between literal and
nonliteral uses of offensive words, requiring repetitive
use to render only the latter indecent.” 556 U.S. at 517.
As the petition explains (at 16-17), rejection of a per se
exemption for brief expletives could not have conformed
the FCC’s treatment of expletives to its overall inde-
cency policy if the Commission had historically recog-
nized a per se exemption for brief nudity.
Respondents contend that the Commission held in
1987 that “deliberate and repetitive use in a patently
offensive manner is a requisite to a finding of inde-
cency.” Br. in Opp. 8 (purporting to quote In re Infinity
Broad. Corp. of Pa., 2 F.C.C.R. 2705, 2705 (1987), but
actually quoting In re Pacifica Found., Inc., 2 F.C.C.R.
2698, 2699 ¶ 13 (1987)). The full passage in which the
quoted language appears, however, unambiguously sup-
ports the Commission’s understanding of its prior prece-
dent (endorsed by this Court in Fox I) as establishing a
categorical exemption for brief material only in cases
involving non-literal expletives:
If a complaint focuses solely on the use of expletives,
we believe that under the legal standards set forth in
[FCC v. Pacifica Found., 438 U.S. 726 (1978)], delib-
erate and repetitive use in a patently offensive man-
ner is a requisite to a finding of indecency. When a
complaint goes beyond the use of expletives, how-
ever, repetition of specific words or phrases is not
necessarily an element critical to a determination of
indecency. Rather, speech involving the description
or depiction of sexual or excretory functions must be

5
examined in context to determine whether it is pa-
tently offensive under contemporary community
standards applicable to the broadcast medium.
In re Pacifica Found., Inc., 2 F.C.C.R. at 2699 ¶ 13 (em-
phasis added). The court of appeals’ decision in this case
is irreconcilable with that statement of Commission pol-
icy.
* * * * *
For the foregoing reasons and those stated in the
petition for a writ of certiorari, the petition should be
held pending this Court’s decision in FCC v. Fox Televi-
sion Stations, Inc., No. 10-1293 (argued Jan. 10, 2012),
and then disposed of as appropriate in light of that deci-
sion.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
MAY 2012

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