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FCC & USA v. Fox Television Stations, Inc., et al., No. 10-1293 (Sup. Ct.)

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Released: June 9, 2011

No. 10-1293

In the Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONERS

NEAL KUMAR KATYAL
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

TABLE OF AUTHORITIES

Cases:
Page
Action for Children's Television v. FCC:

852 F.2d 1332 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . 2, 3, 5
932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 503
U.S. 913 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S.
1043 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CBS, Inc. v. FCC, 453 U.S. 367 (1981) . . . . . . . . . . . . . . . . 11
Dickerson v. United States, 530 U.S. 428 (2000) . . . . . . . 11
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 8, 10, 11
FCC v. League of Women Voters, 468 U.S. 364
(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . . . 2, 6, 9
Holder v. Humanitarian Law Project, 130 S. Ct.
2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) . . . . . . 10
Reno v. ACLU, 521 U.S. 844 (1997) . . . . . . . . . . . . . 3, 4, 5, 7
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) . . . 9
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) . . . 9
United States Civil Serv. Comm'n v. National Ass'n
of Letter Carriers, 413 U.S. 548 (1973) . . . . . . . . . . . . . . 4
Statutes:
Administrative Procedure Act, 5 U.S.C. 701 et seq. . . . . . 4
Communications Decency Act of 1996, Pub. L. No.
104-104, Tit. V, 110 Stat. 133 . . . . . . . . . . . . . . . . . . . . . . . 4
(I)

II
Miscellaneous:
Page
Complaints Regarding Various Television Broads.
Between Feb. 2, 2002 & Mar. 8, 2005, In re, 21
F.C.C.R. 2664 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Industry Guidance on the Comm'ns Case Law
Interpreting 18 U.S.C. 1464 & Enforcement
Policies Regarding Broad. Indecency, In re
,
16 F.C.C.R. 7999 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

In the Supreme Court of the United States
No. 10-1293
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONERS

In a case involving expletives (Fox), the Second Cir-
cuit "str[uck] down the FCC's indecency policy" in its
entirety on the ground that the policy was facially
vague. Pet. App. 34a. In a second case involving scrip-
ted adult nudity (ABC), the court of appeals confirmed
the breadth of its prior decision by overturning the Com-
mission's order on the ground that Fox "binds this
panel." Id. at 124a. The court of appeals' holding that
the FCC's "indecency policy" is unconstitutionally vague
(1)

2
in its entirety conflicts with the D.C. Circuit's recogni-
tion that, in light of this Court's decision in FCC v.
Pacifica Foundation, 438 U.S. 726 (1978) (Pacifica),
such a "vagueness challenge * * * is not open to lower
courts." Action for Children's Television v. FCC, 852
F.2d 1332, 1335 (1988) (ACT I) (R.B. Ginsburg, J.). The
court of appeals also erred by facially invalidating the
FCC's indecency policy based on perceived inconsisten-
cies between adjudications not before the court, without
inquiring whether the Commission's policy was vague as
applied to the particular broadcasts at issue. See
Holder v. Humanitarian Law Project, 130 S. Ct. 2705,
2719 (2010) (HLP). The Second Circuit's decisions effec-
tively disable the Commission from enforcing the prohi-
bition on broadcast indecency that has existed since the
early years of broadcast communications. This Court's
review is warranted.
1. In Pacifica, this Court rejected a constitutional
challenge to an FCC indecency finding. The Court ob-
served with approval that, under the FCC's approach to
resolving issues of broadcast indecency, "context is all-
important." 438 U.S. at 750. The Court also found "no
basis for disagreeing with the Commission's conclusion
that indecent language was used in [the] broadcast" be-
fore it, id. at 741, a holding irreconcilable with the view
that the Commission's standard for determining inde-
cency was unconstitutionally vague. Although the FCC
has since expanded its indecency policy to cover isolated
offensive words and images where circumstances war-
rant, it has adhered since Pacifica to the view that the
presence or absence of indecency turns in part on the
context in which particular words or images appear. See
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800,
1812 (2009) (Fox) (explaining that "the Commission's

3
decision to look at the patent offensiveness of even iso-
lated uses of sexual and excretory words" conformed to
"the context-based approach" that the Court had "sanc-
tioned in Pacifica"). The D.C. Circuit has repeatedly
recognized that Pacifica forecloses any vagueness chal-
lenge to the FCC's indecency policy. See Act I, 852 F.2d
at 1337-1338; Action for Children's Television v. FCC,
932 F.2d 1504, 1508 (D.C. Cir. 1991) (ACT II), cert. de-
nied, 503 U.S. 913, 914 (1992); Action for Children's
Television v. FCC, 58 F.3d 654, 659 (D.C. Cir. 1995) (en
banc) (ACT III), cert. denied, 516 U.S. 1043 (1996).
Fox contends that this Court's decision in Reno v.
ACLU, 521 U.S. 844 (1997), which held that the Commu-
nications Decency Act's regulation of indecent expres-
sion on the Internet was unconstitutionally vague,
"trumps any possible conflict." Fox Br. in Opp. 21; see
ABC Br. in Opp. 9-10. Fox professes to find it "star-
tling" and "remarkabl[e]" that the government did not
discuss Reno in its petition for certiorari because, ac-
cording to Fox, that decision was "at the core of the Sec-
ond Circuit's holding." Fox Br. in Opp. 1.
In Fox, however, the Second Circuit "reject[ed] the
Networks' argument that Reno requires us to find the
FCC's policy vague." Pet. App. 21a (emphasis added).
The court explained that "[u]nlike in Reno," where no
federal agency was charged with administering the chal-
lenged statute or clarifying the scope of the relevant
indecency prohibition, "the FCC has further elaborated
on the definition of indecency in the broadcast context,"
both in In re Industry Guidance on the Commission's
Case Law Interpreting 18 U.S.C. 1464 & Enforcement
Policies Regarding Broadcast Indecency, 16 F.C.C.R.
7999 (2001) (Industry Guidance), and in its reported
decisions. Pet. App. 21a. Such agency interpretations

4
(many of which are subject to review for internal consis-
tency under the Administrative Procedure Act) can clar-
ify an otherwise vague statutory standard. See United
States Civil Serv. Comm'n v. National Ass'n of Letter
Carriers, 413 U.S. 548, 575 (1973). As the court of ap-
peals correctly concluded in Fox, "[t]his additional guid-
ance * * * certainly distinguishes the FCC policy from
the one struck down in Reno." Pet. App. 21a.
Respondents are also wrong in contending that the
statutory provision at issue in Reno was "substantively
identical to the FCC's definition of `indecent' here." Fox
Br. in Opp. 1. One of the prohibitions struck down in
Reno applied to "indecent" communications without
"any textual embellishment at all." 521 U.S. at 871 n.35.
The other prohibition covered all Internet content that
was "patently offensive as measured by contemporary
community standards." Id. at 860. Given the relatively
new and dynamic nature of the Internet when Reno was
decided, it would have been difficult to identify "commu-
nity standards" or "traditional program content" with
respect to that medium. Cf. Reno, 521 U.S. at 867; see
id. at 868-869 ("Neither before nor after the enactment
of the [Communications Decency Act] have the vast
democratic forums of the Internet been subject to the
type of government supervision and regulation that has
attended the broadcast industry.").
By contrast, the Commission has long experience ex-
amining "contemporary community standards for the
broadcast medium," and it has identified for broadcast-
ers three "principal factors" that are "significant" to its
determination whether material is patently offensive.
Industry Guidance, 16 F.C.C.R. at 8002 8 (emphasis
added). The Court in Reno noted that the Commission
has "been regulating radio stations for decades," and

5
that in Pacifica the Commission had "targeted a specific
broadcast that represented a rather dramatic departure
from traditional program content." 521 U.S. at 867. Un-
like the Internet communications at issue in Reno,
broadcast media are subject to longstanding and well-
established community standards. Indeed, the major
networks have personnel and policies designed to ensure
compliance with those standards, even in time periods
when FCC regulations do not apply. Pet. App. 60a-61a.
Fox also contends (Br. in Opp. 21-22) that the D.C.
Circuit in the ACT cases approved only "the FCC's
prior, more restrained indecency enforcement policy,"
which was limited to "the `deliberate and repetitive use'
of" offensive language. The court in the ACT cases,
however, was reviewing the FCC's decision to move
away from its post-Pacifica indecency policy that had
proscribed only such material. See Pet. 4-6. The D.C.
Circuit in the ACT cases reviewed three decisions of the
Commission, "each of which declared `indecent' material
which would not have been so identified under the prior
FCC standard." ACT I, 852 F.2d at 1336. The court
explained that the Commission had decided to "mea-
sure[] broadcast material against the generic defini-
tion of indecency" because its previous "deliberately-
repeated-use-of-dirty-words policy" was " `unduly nar-
row as a matter of law' and inconsistent with [the agen-
cy's] obligation responsibly to enforce" the prohibition
on indecent broadcasting. Id. at 1337-1338. It was that
broader indecency policy that the D.C. Circuit upheld
against a vagueness challenge. Id. at 1338-1339.
2. The Second Circuit also disregarded this Court's
admonition in HLP that courts must evaluate vagueness
challenges based on the facts of the case before them,
rather than on other applications not before the court.

6
Notwithstanding that directive, the court of appeals
failed entirely to ask whether Fox or ABC had received
adequate notice that the particular broadcasts at issue
here would be considered indecent. Instead, the court
conducted a compare-and-contrast exercise limited to
other FCC orders involving different broadcasts. See
Pet. 24. Respondents adopt the court of appeals' flawed
methodology by alleging inconsistencies between other
FCC adjudications involving programs unlike those at
issue here. See Fox Br. in Opp. 17; ABC Br. in Opp. 11-
13; ABC Affiliates Br. in Opp. 18-20 n.20.
Fox (Br. in Opp. 15-16) and ABC (Br. in Opp. 10-11)
contend that the Commission's elaboration of its inde-
cency policy through its policy statement and decisions
have rendered enforcement less certain. But it should
come as no surprise that, under a contextual analysis,
"words and actions found to be unlawfully `offensive' in
some instances" will be "found to be non-actionable [in]
others." Fox Br. in Opp. 2. This Court observed in
Pacifica that "a prime-time recitation of Geoffrey Chau-
cer's Miller's Tale" need not be equated for indecency
purposes with the George Carlin "Filthy Words" mono-
logue, even if both include offensive language. 438 U.S.
at 750 & n.29.
In any event, respondents do not show how pur-
ported inconsistencies between other FCC rulings de-
prived them of notice that the particular broadcasts at
issue here might be considered indecent. For example,
Fox does not identify any case in which the Commission
has found that the concededly gratuitous use of the
F-word in a prime-time awards show was not indecent.
Fox asserts (Br. in Opp. 24) that there was "no way" for
it to have known "whether the live broadcast of an
awards show is sufficiently newsworthy to qualify for"

7
favorable treatment as a "bona fide" news program.
During the nearly five years this case has been pending,
however, Fox has never contended that the Billboard
Music Awards show was a news program, or that its un-
certainty on that question led it to broadcast the exple-
tives that the FCC found to be indecent. Nor has the
network ever contended that the expletives used by
Nicole Richie and Cher were anything other than gratu-
itous. See Pet. App. 71a, 95a.
ABC likewise contends (Br. in Opp. 19) that it had
"no notice" that its broadcast of adult nudity in NYPD
Blue "could be deemed indecent." But the network can-
not seriously claim that nudity is "traditional program
content" on prime-time broadcast television (Reno, 521
U.S. at 867), or that its repeated shots of an actress's
buttocks as she prepared to shower were the equivalent
of "a scene in [the film Schindler's List] depicting con-
centration [camp] prisoners `made to run around the
camp fully nude as the sick are sorted from the heal-
thy.' " Pet. App. 145a.
ABC also argues (Br. in Opp. 11) that the Commis-
sion was inconsistent in distinguishing for indecency
purposes between the relevant NYPD Blue episode and
another program that involved an "eight-second depic-
tion of buttocks." But the program that the FCC found
not to be indecent involved the depiction of an infant.
See Complaints Regarding Various Television Broads.
Between Feb. 2, 2002 & Mar. 8, 2005, 21 F.C.C.R. 2664,
2718-2719, 224-226 (2006). ABC's refusal to acknowl-
edge the difference between broadcast images of a nude
adult and images of a nude infant illustrates the hostility
to the FCC's longstanding "context-based approach"
(Fox, 129 S. Ct. at 1812) that underlies both the net-

8
works' position and the court of appeals' decisions in
these cases.
3. The court of appeals invalidated the Commission's
context-based indecency enforcement policy as unconsti-
tutionally vague even though it recognized that the
greater certainty provided by a less flexible policy, such
as a list of banned words, would raise its own "grave
First Amendment concerns." Pet. App. 27a. Fox ac-
knowledges (Br. in Opp. 25) that articulating an inde-
cency policy that could satisfy the court of appeals "may
well be challenging," and neither the Second Circuit nor
any of the respondents has suggested a workable stan-
dard that could withstand the court of appeals' review.
To be sure, the courts need not and should not "usurp
the FCC's regulatory authority" (id. at 20 n.10) or "do
the Commission's job for it" (ABC Br. in Opp. 32). But
a decision that finds an agency's interpretation of a stat-
ute to be unconstitutionally vague and frankly acknowl-
edges that a clearer standard would likely also be un-
constitutional has the same practical effect as invalida-
tion of the statute itself. That judgment warrants this
Court's review.
4. ABC contends that if certiorari is granted, the
questions presented should be broadened to include "all
available grounds for affirmance." ABC Br. in Opp. 34;
see Fox Br. in Opp. 26-27. None of the alternative
grounds that respondents identify warrants this Court's
review.
First, ABC contends (Br. in Opp. 26-27) that the
availability of "V-chip" blocking technology supports the
judgment below. That argument is not ripe for this
Court's consideration, however, because the court of
appeals did not address it. See Fox, 129 S. Ct at 1819

9
(This Court is "one of final review, `not of first view.' ")
(citation omitted).
In any event, these cases are poor vehicles for con-
sidering the relevance (if any) of the V-chip to the con-
stitutionality of television broadcast indecency regula-
tion. Fox does not contend that the Billboard Music
Awards shows were accurately rated to apprise viewers
that the F-Word and S-Word would be uttered. See Pet.
App. 50a, 92a. ABC's TV-14 (DLV) rating of the rele-
vant NYPD Blue episode ("D" for suggestive or sexual
dialogue, "L" for language, and "V" for violence, id. at
84a n.162) likewise would not have apprised viewers em-
ploying the V-chip system that nudity would be aired.
See id. at 178a-179a. And while ABC's broadcast began
with an advisory (invisible to a V-chip) stating that the
program contained, inter alia, "partial nudity," such
warnings do not provide adequate notice to the many
viewers who tune into ongoing programs. Pacifica, 438
U.S. at 748.
In any event, ABC's argument about the V-chip rests
on a flawed legal premise. Content-based regulations of
broadcast speech are subject only to intermediate scru-
tiny, see FCC v. League of Women Voters, 468 U.S. 364,
380 (1984), under which "a regulation need not be the
least speech-restrictive means of advancing the Govern-
ment's interests," Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 662 (1994). Instead, "[s]o long as the means
chosen are not substantially broader than necessary
* * * the regulation will not be invalid simply because
a court concludes that the government's interest could
be adequately served by some less speech-restrictive
alternative." Turner Broad. Sys., Inc. v. FCC, 520 U.S.
180, 218 (1997) (citation omitted). In addition, the Com-
mission has determined that the V-chip is not an ade-

10
quate substitute for its time-channeling regulation of
indecency because, inter alia, networks often inaccu-
rately rate their shows. See Pet. App. 81a-83a & nn.159,
162; see also id. at 177a-179a. That fact-intensive con-
clusion does not warrant this Court's review.
This Court likewise should not review respondents'
contention that the First Amendment bars the govern-
ment from penalizing ABC's broadcast of pre-scripted
adult nudity in the relevant NYPD Blue episode because
Pacifica "established the constitutional limits of the
FCC's authority to regulate broadcast indecency." ABC
Affiliates Br. in Opp. 26; see ABC Br. in Opp. 27-29. The
ABC panel issued no episode-specific First Amendment
decision because it relied entirely on Fox's vagueness
holding, see Pet. App. 124a-125a, and the Fox panel ex-
pressly declined to address the networks' claim that
Pacifica established the limit of the FCC's regulatory
authority, see id. at 17a-18a. The episode-specific con-
stitutional claim would be most appropriately addressed
by the court of appeals on remand in the first instance if
this Court reverses the Second Circuit's vagueness de-
termination. See Fox, 129 S. Ct. at 1819. In any event,
this Court has "never held that Pacifica represented the
outer limits of permissible regulation." Id. at 1815.
Finally, there is no sound reason for this Court to
reconsider its decisions in Pacifica and in Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Accord
ABC Affiliates Br. in Opp. 26; see also Center for Cre-
ative Voices in Media Br. in Opp. 1-7. "[T]he principles
of stare decisis weigh heavily against overruling" this
Court's precedents, and "even in constitutional cases,
the doctrine carries such persuasive force that [the
Court] ha[s] always required a departure from prece-
dent to be supported by some `special justification.' "

11
Dickerson v. United States, 530 U.S. 428, 443 (2000) (in-
ternal citation omitted). That principle is especially
weighty here, where generations of "conscientious par-
ents" have relied on the "regulation of broadcast pro-
grams" to ensure a "relatively safe haven for their chil-
dren" in an increasingly coarse media environment.
Fox, 129 S. Ct. at 1819.
Despite the changes in the media landscape since
Pacifica was decided, broadcasting remains an ex-
tremely pervasive--and invasive--medium that contin-
ues to be highly accessible to children. See Pet. App.
78a-85a. In addition, intervening "technological ad-
vances have made it easier for broadcasters to bleep out
offending words," Fox, 129 S. Ct. at 1813, and "the pro-
liferation of numerous other media sources" (Fox Br. in
Opp. 26) has increased the opportunities for dissemina-
tion to adults of programming not appropriate for chil-
dren. Those changes reduce the burdens that regulation
of broadcast indecency may entail.
Finally, broadcast regulation, including limits on
indecent programming, reflects an exchange between
broadcasters and the public. A broadcast licensee is
"granted the free and exclusive use of a limited and
valuable part of the public domain," but "when he ac-
cepts that franchise it is burdened by enforceable public
obligations." Fox, 129 S. Ct. at 1806 (quoting CBS, Inc.
v. FCC, 453 U.S. 367, 395 (1981)). Respondents identify
no sound constitutional basis for relieving the networks
of those public obligations while they continue to enjoy
free use of the public airwaves.

12
* * * * *
For the foregoing reasons and those stated in the
petition, the petition for a writ of certiorari should be
granted.
Respectfully submitted.
NEAL KUMAR KATYAL
Acting Solicitor General
JUNE 2011

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