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FCC v. CBS Corporation et al., No. 08-653 (Sup. Ct.)

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Released: December 31, 1969

No. 08-653

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

GREGORY G. GARRE
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

TABLE OF CONTENTS

Page
A. The petition should be held pending this Court's
decision in Fox because Fox may lead the court
of appeals to reconsider its analysis of FCC
precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. The other issues identified by respondents are
not an obstacle to holding the petition pending
the decision in Fox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. The decision of the court of appeals is erroneous . . . . 7

TABLE OF AUTHORITIES

Cases:
Commissioner v. Clark, 489 U.S. 726 (1989) . . . . . . . . . . . . 8
Complaints Against Various Broad. Licensees
Regarding Their Airing of the "Golden Globe
Awards" Program, In re
, 19 F.C.C.R. 4975 (2004) . . . 10
Cutter v. Wilkinson, 544 U.S. 709 (2005) . . . . . . . . . . . . . . . 6
FCC v. Fox Television Stations, Inc., No. 07-582
(argued Nov. 4, 2008) . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 8, 10
FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . . . . . . 2, 7
Infinity Broad. Corp., In re, 2 F.C.C.R. 2705 (1987) . . . . . 8
Pacifica Found., Inc., In re, 2 F.C.C.R. 2698 (1987) . . . . . 8
Lawrence v. Chater, 516 U.S. 163 (1996) . . . . . . . . . . . . . . . . 5
Tyler v. Cain, 533 U.S. 656 (2001) . . . . . . . . . . . . . . . . . . . . . 5
WGBH Educ. Found., In re, 69 F.C.C.2d 1250 (1978) . . . . 9
Young Broad. of San Francisco, Inc., In re,
19 F.C.C.R. 1751 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(I)

II
Statutes:
Page
Administrative Procedure Act, 5 U.S.C. 55l et seq. . . . . . . 1
18 U.S.C. 1464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Miscellaneous:
Industry Guidance on the Comm'n's Case Law
Interpreting 18 U.S.C. 1464 and Enforcement
Policies Regarding Broad. Indecency, In re
, 16
F.C.C.R. 7999 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In the Supreme Court of the United States
No. 08-653
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 has set aside an order of the
Federal Communications Commission (FCC or Commis-
sion) imposing a forfeiture on respondents for broad-
casting the most widely viewed display of public inde-
cency in television history. According to the court,
the Commission acted arbitrarily and capriciously, in
violation of the Administrative Procedure Act (APA),
5 U.S.C. 551 et seq., because the order represented an
unacknowledged departure from a supposed policy of
exempting all brief or fleeting material--including im-
ages--from enforcement of statutory and regulatory
prohibitions on the broadcast of indecent material. No
such policy existed, and the court's holding is inconsis-
tent with settled principles of deference to an agency's
reasonable interpretation of its own precedent.
(1)

2
In FCC v. Fox Television Stations, Inc., No. 07-582
(argued Nov. 4, 2008), this Court is considering a related
APA challenge to the FCC's enforcement of the federal
broadcast-indecency prohibitions, which were upheld by
the Court in FCC v. Pacifica Foundation, 438 U.S. 726
(1978) (Pacifica). More specifically, both this case and
Fox involve the Commission's treatment of indecent
broadcast material that is isolated or fleeting. This
Court's decision in Fox is likely to discuss the nature
and scope of the Commission's prior indecency enforce-
ment policy and the deference owed to the Commission's
interpretation of its own policies and practices, and in
doing so may inform the Court's assessment of the cor-
rectness of the court of appeals' reasoning in this case.
The petition should therefore be held pending the deci-
sion in Fox. At that time, the Court can decide whether
to grant certiorari, vacate the decision below, and re-
mand the case for further consideration, or instead to
grant certiorari and proceed with plenary review.

A. The Petition Should Be Held Pending This Court's Deci-

sion In Fox Because Fox May Lead The Court Of Ap-
peals To Reconsider Its Analysis Of FCC Precedent

Contrary to respondents' assertion (Br. in Opp. 1)
the government does not contend that "the legal ques-
tion at issue here and in Fox is identical." Rather, as
respondents correctly observe (id. at 11), "the question
in Fox is whether the Commission's explanation of an
acknowledged change in policy was sufficient, while the
question here is whether the FCC changed its policy at
all prior to the broadcast under review." In assessing
the adequacy of the Commission's explanation for its
change in policy in Fox, however, this Court will pre-
sumably consider what the change was. Doing so will

3
require the Court to compare the old indecency policy
with the new indecency policy and consider the defer-
ence owed to the Commission's interpretation of its own
policies and practices under administrative-law princi-
ples. That inquiry will shed light on the contours of the
old policy and whether, in the context of this case, there
was any change in policy at all. The prospect that the
Court's decision in Fox will clarify the proper analysis
here is a sufficient reason to hold the petition in this
case, even though the two controversies do not present
precisely the same legal issue.
The decision in Fox is particularly likely to be rele-
vant to this case because the parties in Fox disagree
about the nature of the FCC's old indecency policy. In
Fox, the government has argued that the Commission's
"general approach to indecency enforcement * * *
stress[ed] the critical nature of context," Gov't Br. at 23,
Fox, supra (No. 07-582), but that the FCC had applied
an exception to that general rule in cases involving ex-
pletives, see id. at 17 ("[T]he Commission made one fac-
tor dispositive in its analysis in certain cases by holding
that the utterance of a single vulgar expletive could
not be found indecent, no matter how strongly other
contextual factors weighed in favor of such a finding.").
The respondents in Fox (including respondent CBS), by
contrast, have argued that "there never has been an `au-
tomatic exemption to the indecency prohibition for non-
repeated expletives.' " NBC, CBS, and ABC Resp. Br.
at 53 n.19, Fox, supra (No. 07-582) (citation omitted);
see Fox Resp. Br. at 19, Fox, supra (No. 07-582) ("There
was never a per se rule against liability for isolated ex-
pletives.").
Significantly, neither side's position in Fox is consis-
tent with the view of the court of appeals in this case

4
that the FCC had "a consistent and entrenched policy of
excluding fleeting broadcast material"--whether exple-
tives, other kinds of words, or images--"from the scope
of actionable indecency." Pet. App. 18a. And neither
position is consistent with the view respondents now
espouse (Br. in Opp. 2) that "[f]or almost 30 years the
FCC held consistently that isolated, fleeting, or uninten-
tional broadcasts of allegedly indecent material were not
actionable."
Thus, regardless of the outcome in Fox, the Court's
reasoning may lead the court of appeals in this case to
reconsider its view that the Commission's order de-
parted from a policy of exempting all fleeting material
from indecency regulation or, at a minimum, shed light
on the legal principles governing that determination.
Because the decision in Fox ultimately may inform this
Court's assessment of the correctness of the court of ap-
peals' judgment in this case, the petition should be held
pending the decision in Fox and disposed of as appropri-
ate in light of that decision.

B. The Other Issues Identified By Respondents Are Not An

Obstacle To Holding The Petition Pending The Decision
In Fox

Respondents make little effort to argue that the peti-
tion should not be held pending the decision in Fox. In-
stead, they suggest (Br. in Opp. 12) that "the petition
should be denied especially if the issue presented is
identical" to that in Fox, since "[n]othing would be
gained by granting the petition to consider the same
question twice." While that observation is relevant to
the decision whether to grant plenary review, it provides
no basis for declining to hold the petition. In any event,

5
as explained above, although Fox is closely related to
this case, the issues in the two cases are not identical.
Respondents are also wrong in contending (Br. in
Opp. 12) that this Court's review would not "alter the
practical outcome of the decision below." In respon-
dents' view, the Commission would be unable to impose
a forfeiture, even if the decision below were vacated,
because the government "declined to seek review of an-
other issue necessary to that goal--the requirement of
showing scienter." Ibid. As noted in the petition (at 23
n.3), however, and as respondents appear to acknowl-
edge (Br. in Opp. 9-10), the Third Circuit's discussion of
scienter was dictum. See Pet. App. 81a (Rendell, J., dis-
senting). More importantly, respondents ignore the
court's statement that "[r]ecklessness would appear to
suffice as the appropriate scienter threshold for the
broadcast indecency regime," id. at 74a; its observation
that the Commission could meet that standard if it could
show "that CBS acted recklessly and not merely negli-
gently when it failed to implement a video delay mecha-
nism for the Halftime Show broadcast," id. at 79a; and
its suggestion that the Commission might reconsider the
issue of scienter on remand, id. at 80a. Although the
ultimate outcome of proceedings on remand would de-
pend on the facts found by the Commission, the scienter
requirement provides no reason to doubt that reconsid-
eration of the APA issues by the court of appeals "may
affect the outcome of the litigation." Tyler v. Cain, 533
U.S. 656, 666 n.6 (2001); see Lawrence v. Chater, 516
U.S. 163, 167 (1996).
Respondents also argue (Br. in Opp. 11) that "[f]ur-
ther review" in this case "would be futile, because the
Commission's appellate lawyers cannot now supply an
explanation that the agency failed to give." But an "ex-

6
planation" is necessary only if the agency has changed
its policy (if there is no change, there is nothing to ex-
plain), and the question on which the government has
sought review is whether there was any change at all.
Finally, respondents contend (Br. in Opp. 22) that
"the doctrine of constitutional avoidance" is a basis for
denying review. A grant, vacatur, and remand to the
court of appeals to reconsider its ruling on whether
the FCC changed its enforcement policy, however,
would not require this Court to consider any constitu-
tional questions. Indeed, even if the Court were to grant
plenary review, there would be no need for it to consid-
er any constitutional issues. The court of appeals
did not address any such issues, and there would be no
occasion for this Court to consider them in the first in-
stance. Instead, review could be confined to the non-
constitutional questions decided by the court of appeals.
See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)
(declining to reach issues that "were not addressed by
the Court of Appeals," because "we are a court of re-
view, not of first view"); see also Gov't Reply Br. at 15-
18, Fox, supra (No. 07-582).
Contrary to respondents' suggestion (Br. in Opp. 23),
there is in this case no "interrelationship between APA
review and First Amendment analysis"--the two issues
are analytically distinct. In particular, this case does
not involve any disputed question of statutory interpre-
tation that would make it appropriate to invoke the
canon that ambiguous statutes should be construed so
as to avoid serious doubt about their constitutionality.
There is no dispute about the interpretation of 18 U.S.C.
1464, which prohibits the broadcast of indecency, and
which the Commission has consistently interpreted to
bar material--including nudity, such as the image at

7
issue here--that describes or depicts sexual or excre-
tory organs or activities and that is patently offensive as
measured by contemporary community standards for
the broadcast medium. See Pacifica, 438 U.S. at 731-
732. The only dispute concerns the validity of the FCC's
enforcement policy under the APA.

C. The Decision Of The Court Of Appeals Is Erroneous

Respondents devote much of their brief to a defense
of the court of appeals' merits analysis. That effort pro-
vides no basis for denying review. The purpose of hold-
ing the petition for Fox is to allow this Court to deter-
mine after that case is decided--and with the benefit of
the Court's decision--whether the analysis in Fox casts
doubt on the reasoning of the court below. In any event,
respondents' arguments lack merit.
1. Like the court of appeals, respondents misinter-
pret the Commission's indecency enforcement frame-
work, and their arguments fail to take account of the
deference owed the Commission's reasonable interpreta-
tion of its own precedent. Respondents attribute (Br. in
Opp. 17) dispositive significance to the observation that
"[t]he Commission is unable to cite any case in which it
actually explained that images were to be analyzed dif-
ferently from words." As explained in the petition (at
18-19), however, the Commission has a general inde-
cency framework that applies to both words and images.
Under that framework, the Commission considers brev-
ity, but only as one of three factors relevant to the as-
sessment of patent offensiveness. In re Industry Guid-
ance on the Comm'n's Case Law Interpreting 18 U.S.C.
1464 and Enforcement Policies Regarding Broad. In-
decency, 16 F.C.C.R. 7999, 8003 10 (2001); see id. at
8002-8003 9 (explaining that the determination whe-

8
ther a broadcast is "patently offensive" and therefore
indecent turns on "the full context" in which the mate-
rial is broadcast). For one subset of cases--those in-
volving expletives--the Commission previously made
the brevity factor dispositive. See Gov't Br. at 22-25,
Fox, supra, (No. 07-582). Cases involving allegedly in-
decent material other than expletives, by contrast, were
governed by the general three-factor test.
In contending that a series of orders from 1987 sup-
port their view that the prior indecency exception was
not limited to expletives, respondents quote (Br. in Opp.
18) the Commission's order in In re Infinity Broadcast
Corp., 2 F.C.C.R. 2705 (1987), for the proposition that
"deliberate and repetitive use in a patently offensive
manner is a requisite to a finding of indecency." The
quoted language, however, does not appear anywhere in
that order. It does appear in In re Pacifica Foundation,
Inc., 2 F.C.C.R. 2698 (1987), but the context there belies
respondents' interpretation. The full sentence reads as
follows: "If a complaint focuses solely on the use of ex-
pletives, we believe that under the legal standards set
forth in Pacifica, deliberate and repetitive use in a pa-
tently offensive manner is a requisite to a finding of in-
decency." Id . at 2699 13 (emphasis added). Thus, far
from announcing a rule applicable to indecency cases
generally, the quoted language by its terms was limited
to cases involving expletives.
2. Because respondents seek to invoke an exception
to the Commission's general approach to indecency reg-
ulation, they have the burden of identifying some state-
ment by the Commission that brief nudity is exempt
from indecency regulation. Cf. Commissioner v. Clark,
489 U.S. 726, 739 (1989). Like the court of appeals, they
have failed to do so--and no such statement exists. In-

9
stead, respondents rely (Br. in Opp. 16) on the Commis-
sion's order in In re WGBH Educational Foundation,
69 F.C.C.2d 1250 (1978), and on a set of unpublished
staff letters denying various indecency complaints. But
none of those decisions suggested that brief nudity was
exempt from indecency regulation. In WGBH, the Com-
mission rejected a petition to deny a license renewal, but
it did not even discuss the petitioner's allegation that the
licensee had broadcast nudity. Id. at 1254 10 & n.6.
And the staff orders respondents cite are similarly cryp-
tic; they say nothing at all about the staff 's analysis.
Pet. App. 31a-32a.
3. Respondents' view of the regulatory history also
fails to account for In re Young Broadcasting of San
Francisco, Inc., 19 F.C.C.R. 1751 (2004), issued just
days before the 2004 Super Bowl, in which the Commis-
sion proposed to impose a forfeiture on a broadcast li-
censee for televising "less than a second" of nudity. Id.
at 1755 12. Respondents appear to recognize (Br.
in Opp. 20) that the treatment of brief nudity in Young
Broadcasting is inconsistent with the isolated-material
exception that respondents believe the FCC formerly
applied. Like the court of appeals, however, respon-
dents cannot explain why the FCC, in a case like Young
Broadcasting, would have abandoned without explana-
tion its purported earlier policy of exempting brief or
fleeting nudity from indecency sanctions. The more
plausible conclusion is that the FCC in Young Broad-
casting said nothing about a categorical exemption for
brief nudity because no such exemption existed.
Respondents assert (Br. in Opp. 19) that the order in
Young Broadcasting "does not constitute binding FCC
precedent" because the Commission has not issued a
forfeiture. Young Broadcasting is significant, however,

10
because it clearly reflects the Commission's understand-
ing, at the time of the 2004 Super Bowl, that indecency
sanctions could properly be based upon the broadcast of
fleeting nudity. The fact that the Commission did not ul-
timately impose a monetary forfeiture in Young Broad-
casting does not diminish the significance of the case as
evidence of then-existing FCC policy.
4. Respondents contend (Br. in Opp. 14 n.7) that
the decision below prevents the Commission from tak-
ing action only with respect to broadcasts that occurred
before the FCC eliminated the isolated-expletive excep-
tion in In re Complaints Against Various Broadcast
Licensees Regarding Their Airing of the "Golden Globe
Awards" Program, 19 F.C.C.R. 4975 (2004) (Golden
Globe Awards Order). The court of appeals stated, how-
ever, that because the Golden Globe Awards Order ad-
dressed only expletives, "a residual policy on other cate-
gories of fleeting material--including all broadcast
content other than expletives--remained in effect." Pet.
App. 23a. Under the decision below, the Commission
therefore may not take action against broadcasts involv-
ing brief images, no matter how sexually explicit or of-
fensive those images may be, and no matter what time
of day they are aired and how many children are in the
viewing audience, until it formally changes the policy
that the court of appeals (erroneously) concluded still
exists. That result warrants review.

11
* * * * *
For the foregoing reasons and those stated in the
petition, the petition for a writ of certiorari should be
held pending this Court's decision in FCC v. Fox Televi-
sion Stations, Inc., No. 07-582, and then disposed of ac-
cordingly.
Respectfully submitted.
GREGORY G. GARRE
Solicitor General
JANUARY 2009

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