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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

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.

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 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 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, 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 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 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 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 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, 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.

* * * * *

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 accordingly.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General

JANUARY 2009