Filed: Jan. 04, 2011
Latest Update: Feb. 21, 2020
Summary: 08-0841-ag (L) ABC, Inc., et al. v. Federal Communications Commission UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELE
Summary: 08-0841-ag (L) ABC, Inc., et al. v. Federal Communications Commission UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELEC..
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08-0841-ag (L)
ABC, Inc., et al. v. Federal Communications Commission
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of January, two thousand eleven.
PRESENT: RICHARD C. WESLEY,
DEBRA A. LIVINGSTON,
Circuit Judges,
JANE A. RESTANI,*
Judge.
______________________________
Nos. 08-0841-ag (Lead)
08-1424-ag (Con)
08-1781-ag (Con)
08-1966-ag (Con)
ABC, INC., KTRK TELEVISION , INC., WLS TELEVISION , INC., CITADEL COMMUNICATIONS, LLC,
WKRN, G.P., YOUNG BROADCASTING OF GREEN BAY , INC., WKOW TELEVISION , INC., WSIL-
TV, INC., ABC TELEVISION AFFILIATES ASSOCIATION , CEDAR RAPIDS TELEVISION COMPANY ,
CENTEX TELEVISION LIMITED PARTNERSHIP, CHANNEL 12 OF BEAUMONT INCORPORATED ,
DUHAMEL BROADCASTING ENTERPRISES, GRAY TELEVISION LICENSE, INCORPORATED , KATC
COMMUNICATIONS, INCORPORATED , KATV LLC, KDNL LICENSEE LLC, KETV HEARST -
ARGYLE TELEVISION INCORPORATED , KLTV/KTRE LICENSE SUBSIDIARY LLC, KSTP-TV LLC,
KSWO TELEVISION COMPANY INCORPORATED , KTBS INCORPORATED , KTUL LLC, KVUE
TELEVISION INCORPORATED , MCGRAW -HILL BROADCASTING COMPANY INCORPORATED , MEDIA
GENERAL COMMUNICATIONS HOLDINGS LLC, MISSION BROADCASTING INCORPORATED ,
MISSISSIPPI BROADCASTING PARTNERS, NEW YORK TIMES MANAGEMENT SERVICES, NEXSTAR
*
The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
BROADCASTING INCORPORATED , NPG OF TEXAS, L.P., OHIO /OKLAHOMA HEARST -ARGYLE
TELEVISION INC., PIEDMONT TELEVISION OF HUNTSVILLE LICENSE LLC, PIEDMONT TELEVISION
OF SPRINGFIELD LICENSE LLC, POLLACK /BELZ COMMUNICATION COMPANY , INC ., POST -
NEWSWEEK STATIONS SAN ANTONIO INC., SCRIPPS HOWARD BROADCASTING CO ., SOUTHERN
BROADCASTING INC., TENNESSEE BROADCASTING PARTNERS, TRIBUNE TELEVISION NEW
ORLEANS INC., WAPT HEARST -ARGYLE TELEVISION INC., WDIO-TV LLC, WEAR LICENSEE
LLC, WFAA-TV INC., WISN HEARST -ARGYLE TELEVISION INC.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION , UNITED STATES OF AMERICA ,
Respondents,
FOX TELEVISION STATIONS, INC., NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO ., CBS
BROADCASTING INC.,
Intervenors.
______________________________
FOR PETITIONERS: SETH P. WAXMAN (Paul R.Q. Wolfson, Jack N. Goodman,
Daniel S. Volchok, and Micah S. Myers, on the brief), Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, DC; John W.
Zucker, Alan N. Braverman, and Susan L. Fox, ABC, Inc., New
York, NY, for Petitioners ABC, Inc., KTRK Television, Inc., and
WLS Television, Inc.
Wade H. Hargrove, Mark J. Prak, and David Kushner (Stephen
Hartzell and Julia Ambrose, on the brief), Brooks, Pierce,
McLendon, Humphrey & Leonard, LLP, Raleigh, NC, for
Petitioners Citadel Communications, LLC, WKRN, G.P., Young
Broadcasting of Green Bay, Inc., WKOW Television Inc., WSIL-
TV, Inc., ABC Television Affiliates Association, Cedar Rapids
Television Company, Centex Television Limited Partnership,
Channel 12 of Beaumont Incorporated, Duhamel Broadcasting
Enterprises, Gray Television License, Incorporated, KATC
Communications, Incorporated, KATV LLC, KDNL Licensee
LLC, KETV Hearst-Argyle Television Incorporated, KLTV/KTRE
License Subsidiary LLC, KSTP-TV LLC, KSWO Television
Company Incorporated, KTBS Incorporated, KTUL LLC, KVUE
Television Incorporated, McGraw-Hill Broadcasting Company
Incorporated, Media General Communications Holdings LLC,
Mission Broadcasting Incorporated, Mississippi Broadcasting
Partners, New York Times Management Services, Nexstar
2
Broadcasting Incorporated, NPG of Texas, L.P., Ohio/Oklahoma
Hearst-Argyle Television Inc., Piedmont Television of Huntsville
License LLC, Piedmont Television of Springfield License LLC,
Pollack/Belz Communication Company, Inc., Post-Newsweek
Stations San Antonio Inc., Scripps Howard Broadcasting Co.,
Southern Broadcasting Inc., Tennessee Broadcasting Partners,
Tribune Television New Orleans Inc., WAPT Hearst-Argyle
Television Inc., WDIO-TV LLC, WEAR Licensee LLC, WFAA-
TV Inc., and WISN Hearst-Argyle Television Inc.
Andrew J. Schwartzman and Parul P. Desai, Media Access Project,
Washington, DC, for Amici Curiae Center for Creative Voices in
Media and Future of Music Coalition, in support of Petitioners.
FOR RESPONDENTS: AUSTIN C. SCHLICK, General Counsel,** (Jacob M. Lewis,
Acting Deputy General Counsel, Nadan M. Joshi, Counsel, on the
brief), Federal Communications Commission, Washington, DC, for
Respondent Federal Communications Commission.
Tony West, Assistant Attorney General,*** (Thomas M. Bondy and
Anne Murphy, on the brief), U.S. Department of Justice, Civil
Division, Washington, DC, for Respondent United States of
America.
Thomas B. North, Law Office of Thomas B. North, St. Ignace, MI,
for Amicus Curiae Decency Enforcement Center for Television, in
support of Respondents.
Robert W. Peters and Robin S. Whitehead, Morality in Media, Inc.,
New York, NY, for Amicus Curiae Morality in Media, Inc., in
support of Respondents.
Christopher T. Craig and Robert R. Sparks, Jr., Sparks & Craig,
LLP, McLean, VA, for Amicus Curiae Parents Television Council,
in support of Respondents.
FOR INTERVENORS: Carter G. Phillips, R. Clark Wadlow, Mark Schneider, James P.
**
Austin C. Schlick is substituted for Matthew B. Berry, who briefed and argued this
case, as counsel for Respondent Federal Communications Commission.
***
Tony West is substituted for Gregory G. Katsas, who briefed this case, as counsel for
Respondent United States of America.
3
Young, Jennifer Tatel, David S. Petron, and Quin M. Sorenson,
Sidley Austin LLP, Washington, DC; Ellen S. Agress, Maureen A.
O’Connell, Fox Television Stations, Inc., New York, NY, for
Intervenor Fox Television Stations, Inc.
Miguel A. Estrada, Gibson, Dunn & Crutcher LLP, Washington,
DC; Susan E. Weiner, NBC Universal, Inc., New York, NY, for
Intervenors NBC Universal, Inc. and NBC Telemundo License Co.
Robert Corn-Revere, Ronald G. London, Amber L. Husbands, and
David M. Shapiro, Davis Wright Tremaine LLP, Washington, DC;
Jonathan H. Anschell, CBS Broadcasting, Inc., Los Angeles, CA;
Susanna M. Lowy, CBS Broadcasting, Inc., New York, NY, for
Intervenor CBS Broadcasting Inc.
______________________________
Petition for review of a forfeiture order of the Federal Communications Commission.
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review be GRANTED and the forfeiture order of the Federal
Communications Commission (“FCC”) be VACATED.
ABC, Inc. (“ABC”) and the ABC Television Affiliates Association and ABC-affiliated
television stations (collectively, “ABC Affiliates”) petition for review of an order of the FCC
determining that an episode of the ABC Television Network show NYPD Blue violated
broadcast indecency standards because it depicted a woman’s nude buttocks and imposing a
forfeiture penalty against forty-four ABC-affiliated television stations. See Complaints Against
Various Television Licensees Concerning Their Feb. 25, 2003 Broad. of the Program “NYPD
Blue”, 23 FCC Rcd. 3147, 3147–48, 3171–75 (2008) (“Forfeiture Order”). Petitioners,
supported by Intervenors Fox Television Stations, Inc. (“Fox”), NBC Universal, Inc. (“NBC”),
NBC Telemundo License Co. (“Telemundo”), and CBS Broadcasting Inc., raise administrative
4
and constitutional challenges to the Forfeiture Order.1 Because Fox Television Stations, Inc. v.
FCC, 613 F.3d 317, 335 (2d Cir. 2010) (rehearing en banc denied), held that the indecency policy
under which the Forfeiture Order was issued is unconstitutionally vague, we grant the petition for
review and vacate the Forfeiture Order.
BACKGROUND
On February 25, 2003 at 9:00 p.m. in the Central and Mountain time zones, the ABC
Television Network aired an episode of NYPD Blue that depicted an adult woman’s nude
buttocks for slightly less than seven seconds.2 Forfeiture Order, 23 FCC Rcd. at 3147–48 ¶¶ 2–3;
NYPD Blue: Nude Awakening. In the episode, Connie McDowell (played by Charlotte Ross),
who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her
nude buttocks are visible. Complaints Against Various Television Licensees Concerning Their
Feb. 25, 2003 Broad. of the Program “NYPD Blue”, 23 FCC Rcd. 1596, 1598–99 ¶¶ 9–10 (2008)
(“NAL”) ; NYPD Blue: Nude Awakening. As McDowell turns toward the shower, the side of
her buttocks and the side of one of her breasts are visible. NAL, 23 FCC Rcd. at 1599 ¶ 9.
While she faces the shower, the camera pans down, again revealing her nude buttocks. Id. at
1599 ¶ 10. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the
front. See NAL, 23 FCC Rcd. at 1599 ¶ 10; NYPD Blue: Nude Awakening. Theo blocks the
1
Amici curiae Center for Creative Voices in Media and Future of Music Coalition
support Petitioners. Amici curiae Decency Enforcement Center for Television, Morality in
Media, Inc., and Parents Television Council support Respondents, the FCC and the United
States.
2
The episode began with a warning that “THIS POLICE DRAMA CONTAINS ADULT
LANGUAGE AND PARTIAL NUDITY. VIEWER DISCRETION IS ADVISED.” NYPD
Blue: Nude Awakening (ABC television broadcast Feb. 25, 2003).
5
audience’s view of McDowell’s nudity. Id. Each character reacts with embarrassment, and Theo
leaves the room and apologizes.
Id. McDowell, covering her breasts and pubic area, responds,
“It’s okay. No problem.”
Id. According to ABC and the ABC Affiliates, the scene was included
to portray the awkwardness between a child and his parent’s new romantic partner and their
difficulties in adjusting to life together.
The FCC received indecency complaints regarding the episode, and in January 2008 the
FCC issued a notice of apparent liability for forfeiture (“NAL”) to ABC and the ABC Affiliates
proposing the maximum forfeiture penalty of $27,500 against each station. NAL, 23 FCC Rcd.
at 1596, 1601 ¶ 18, 1602 ¶ 23. In February 2008, the FCC issued the Forfeiture Order,
determining that the depiction of the buttocks was indecent and imposing a penalty of $27,500 on
each of forty-four ABC-affiliated stations. See 23 FCC Rcd. at 3147 ¶¶ 1–2, 3171–75. ABC and
the ABC Affiliates petition this Court for review of the Forfeiture Order.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a). Under the
APA, we may “hold unlawful and set aside agency action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or]
contrary to constitutional right . . . .” 5 U.S.C. § 706(2)(A)–(B). “We review an agency’s
disposition of constitutional issues de novo.” Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 91
(2d Cir. 2009).
DISCUSSION
Under 18 U.S.C. § 1464, “[w]hoever utters any obscene, indecent, or profane language by
means of radio communication” is subject to a criminal penalty. 18 U.S.C. § 1464. A regulation
6
pursuant to that statute provides that “[n]o licensee of a radio or television broadcast station shall
broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.” 47 C.F.R.
§ 73.3999(b). The FCC may impose a forfeiture penalty when it determines that a licensee has
violated 18 U.S.C. § 1464. 47 U.S.C. § 503(b)(1)(D). The FCC defines indecent material as
“describ[ing] or depict[ing] sexual or excretory organs or activities” and “patently offensive as
measured by contemporary community standards for the broadcast medium.” Industry Guidance
on the Comm’ns Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding
Broad. Indecency, 16 FCC Rcd. 7999, 8002 ¶¶ 7–8 (2001). In determining whether material is
patently offensive, the FCC looks to three principal factors:
(1) the explicitness or graphic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or activities; (3) whether the
material appears to pander or is used to titillate, or whether the material appears to
have been presented for its shock value.
Id. at 8002 ¶ 10. The context in which the material appears “is critical.”
Id.
Speech “which is indecent but not obscene,” however, “is protected by the First
Amendment.” Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115, 126 (1989). The First and
Fifth Amendments protect speakers “from arbitrary and discriminatory enforcement of vague
standards” in laws and regulations. Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 588
(1998). Standards are unconstitutionally vague if they do not “give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited . . .” Grayned v. City of
Rockford,
408 U.S. 104, 108 (1972). “The First Amendment places a special burden on the
government to ensure that restrictions on speech are not impermissibly vague.”
Fox, 613 F.3d at
327.
7
In Fox, a panel of this Court struck down the FCC’s indecency policy, holding that it
violates the First Amendment because it is unconstitutionally vague. Id. at 319, 330. The FCC
and the United States concede that Fox “invalidated the [FCC]’s indecency policy in its entirety.”
Supplemental Br. for FCC and United States 3. Although they contend that the facts of this case
are different from those of Fox, the FCC and the United States correctly recognize that “Fox does
not turn on [factual] distinctions.”3
Id.
Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC
levied fines for fleeting, unscripted utterances of “fuck” and “shit” during live broadcasts.
Id. at
322. Although this case involves scripted nudity, the case turns on an application of the same
context-based indecency test that Fox found “impermissibly vague.”
Id. at 327. According to
the FCC, “nudity itself is not per se indecent.” WPBN/WTOM License Subsidiary, Inc.,
Memorandum Opinion & Order, 15 FCC Rcd. 1838, 1841 ¶ 11 (2000). The FCC, therefore,
decides in which contexts nudity is permissible and in which contexts it is not pursuant to an
indecency policy that a panel of this Court has determined is unconstitutionally vague.
Fox, 613
F.3d at 332.
Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds
this panel. See United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). Accordingly, we need not
3
Only amicus curiae Parents Television Council argues that this case is distinguishable
from Fox. The Parents Television Council alleges that Fox’s holding “is restricted to FCC’s
fleeting expletive policy as it relates to live, unscripted broadcasts.” Supplemental Br. for
Parents Television Council at 4. Although certainly the facts of Fox relate to live, unscripted
broadcasts, Fox clearly sweeps more broadly, holding that the “current policy fails constitutional
scrutiny.” Fox, 613 F.3d at 335.
8
reach the administrative law or other constitutional challenges Petitioners raised.4
CONCLUSION
For the foregoing reasons, the petition for review is GRANTED and the forfeiture order
of the FCC is hereby VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of the Court
4
Because the constitutional issue is decided, the “fundamental and longstanding principle
of judicial restraint” that “requires that courts avoid reaching constitutional questions in advance
of the necessity of deciding them,” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,
445–46 (1988), is not implicated.
9
