CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

When the Supremes decline to review a case (which they do in the vast majority of cases that get filed with the high court), the action is normally reflected in a simple nine-word order – “The petition for a writ of certiorari is denied.” That means that at least six of the justices saw no reason to hear the appeal. The final order in the Jackson case followed that course.

But in the Jackson case, Chief Justice Roberts bothered to write a two-page concurring opinion questioning whether the Third Circuit had really gotten it right. The Third Circuit’s decision was based on the notion that the half-second exposure of Ms. Jackson’s right breast was essentially the same as a “fleeting expletive”. As to that analogy, Roberts says “I am not so sure.” As he sees it, images are different from words. To hammer that point home, he quotes the prosaic proverb, “a picture is worth a thousand words”.

But, given the Court’s decision in FCC v. Fox, Roberts acknowledges that the distinction is in any event immaterial: “[i]t is now clear that the brevity of an indecent broadcast – be it word or image – cannot immun­ize it from FCC censure.”

This underscores the narrowness of the Fox decision and the continuing vitality of indecency regulation, at least in the Chief Justice’s mind. While the bottom line in Fox was that Fox and ABC got off the hook, that happy result was based on the technicality that the broadcasts in question had occurred before the Commission had announced, in 2004, that fleeting expletives (and, by extension, fleeting images) were taboo. The Court’s opinion left wide open the question of whether the FCC could, consistently with the First Amendment, penalize such broadcasts occurring after the 2004 announcement. It also left open the question of whether the FCC could penalize other instances of non-fleeting language (or images), regardless of whether they were aired before or after the 2004 announcement.

Roberts’s separate opinion clearly suggests that he, for one, believes that the FCC’s indecency policies can, should and do live on post-Fox. 

On the other hand, adding still more flair to the Court’s denial of review in the Jackson case, Justice Ginsburg also weighs in with a concurring opinion. It consists of one sentence, which we reproduce here in toto:

The Court’s remand in FCC v. Fox Television Stations, Inc., 567 U. S. ___ (2012), affords the Commission an opportunity to reconsider its indecency policy in light of technological advances and the Commission’s uncertain course since this Court’s ruling in FCC v. Pacifica Founda­tion, 438 U. S. 726 (1978).

That, of course, echoes her concurring opinion in Fox in which she announced her strong belief that the Court’s first and only (thus far) endorsement of indecency regulation (in Pacifica) was “wrong”. (Memo to Justice Ginsburg: Could you try not to sugarcoat it next time?)

So there you have it: a court that is still split on whether the government can constitutionally regulate broadcast indecency. We’ve had to live in the shadow of that uncertainty since the 1978 Pacifica decision. It looks like we’ll be living with for some time to come.

Several justices have historically demonstrated uneasiness with the notion of removing regulations they perceive as necessary (or at least useful) in maintaining some sense of morality or decorum on the public airwaves. No big surprise there – I have repeatedly noted in earlier posts that the Court has been cautious about language and decorum. (For instance, they frown on use of the actual words – fuck, shit, etc. – in the courtroom or in their opinions. They opt instead for euphemisms like “f-word” and “s-word”.) In particular, it was always highly unlikely that Justices Roberts, Scalia and Alito were going to sign on to a decision opening the airwaves to what they felt would be a cacophony of indecency.  

Furthermore, this Court has always been somewhat cautious when it comes to First Amendment cases (as I have discussed in previous posts). I have detected little sentiment on the Roberts Court for actions that completely overturn longstanding laws based on facial First Amendment challenges. And, truth be told, the Court has historically not shown any such sentiment. In fact, the longstanding principle of “constitutional avoidance” holds that the Court will not take on a constitutional issue when it can dispose of a case via other means.

So it’s not surprising that the Court as a whole may have been reluctant to push the button on the First Amendment thermonuclear option when a narrower alternative was available. 

Blogmeister: But the “narrower” alternative here was still a constitutional provision – the “due process” clause of the Fifth Amendment. How does that fit into any “constitutional avoidance” notion?

Swami: Sure, it’s still the constitution, but look at the differences. Assume that everybody agrees that the FCC should not have penalized the Fox and ABC broadcasts at issue here. To get to that result through the First Amendment, the Court would have had to hold that the FCC’s indecency policies – or at least some significant subset of them – are barred by the First Amendment. That would open up a whole host of follow-up questions that would almost invariably take the Court back to Pacifica. By contrast, the Fifth Amendment approach the Court used allowed them to find that, whether or not the indecency policy is consistent with the First Amendment, the two broadcasters (Fox and ABC) didn’t get the due process notice to which they were entitled under the Fifth Amendment. Net result: the penalties meted out to those two broadcasters are tossed without anybody having to come to grips with the First Amendment arguments.

This is, of course, very frustrating for those of us who have been waiting patiently for some conclusive ruling by the Supreme Court as to the constitutionality of the FCC’s indecency policy. When it agreed to hear the Fox case this time around, the Court specified that the only question to be considered was

[w]hether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.

Many of us read that to refer to the overall indecency regime as a whole, not merely the particular application of that regime to two particular parties. We obviously guessed wrong.

(This is a good time to point out another possible reason that the Court decided this unanimously and narrowly. It’s a hypothesis advanced by UCLA professor Eugene Volokh. Volokh theorizes that the recusal of Justice Sotomayor left the Court in serious danger of a 4-4 split on the merits if it ruled on the overriding First Amendment issue. That would have been the worst possible result, leaving the Second Circuit decision in place but providing no Supreme Court precedent. The narrow decision was therefore a tactical means of getting to a result favored by all justices without forcing the Court through a divisive and ultimately deadlocked First Amendment analysis.)

Blogmeister: But that doesn’t mean that the First Amendment problems with the FCC’s indecency policy have gone away, does it?

Swami: Absolutely not. That issue isn’t going away. The Court’s unwillingness in the Fox case to address that issue squarely, for once and for all, means we’re almost certain to be back here several years from now (maybe just in time for another election day). 

Blogmeister: OK, so here we are, with a very narrow, largely analysis-free Supreme Court decision based on Fifth, not First, Amendment grounds – a decision that appears to apply only to these three broadcasts.   What comes next?

Swami: That’s unclear.  According to the Supremes, “[t]he judgments of the United States Court of Appeals for the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with the principles set forth in this opinion.” So the Second Circuit’s broad, sweeping (and, to many us, welcome) opinion holding the indecency policy to be inconsistent with the First Amendment has now been tossed by the Supremes. As a result, the FCC’s indecency regime, as a whole, remains in place.

I’m guessing the Court is also telling the Second Circuit that it should simply and quickly issue an order reversing the FCC’s actions for the reasons stated by the Supremes. Since the Second Circuit obviously feels strongly about this case – you can tell that from its first two opinions – I suppose it’s possible that the Circuit might use the opportunity of a remand to signal how broadly it plans to read the Supreme Court’s decision and whether the Second Circuit will continue to be the “go-to” circuit for indecency cases. And you can take the Swami’s word for it – there will be more indecency cases. As the Supreme Court expressly observed, its decision leaves the courts “free to review the current policy or any modified policy in light of its content and application”. 

The more intriguing question, though, is how the FCC will react to this decision. It obviously just dodged a bullet. Does it tweak its indecency policy, does it massively overhaul that policy, does it scrap the policy entirely, or does it just leave it the way it’s been for the last six-seven years? In light of the Commission's traditional behavior, I suspect it’ll be the last option – the FCC as Decency Police will continue to pound the beat – but you never know. After all, we now have Justices Thomas and Ginsburg on the record saying that they seriously question whether the indecency policy could withstand First Amendment scrutiny. At some point the FCC may be able to take a hint.

Blogmeister: And beyond that, what does the Supreme Court’s decision mean for indecency cases pending at the FCC?

Swami: That, too, remains to be seen. In a perfect world, the Commission would go through all the million or more still-pending indecency complaints and divide them into two groups: (a) complaints involving “fleeting expletives” and (b) all others. Then it would take all the complaints in Group (a) and subdivide them into two categories: (i) those that occurred prior to the 2004 Golden Globes decision that announced an end to the Commission’s previous “fleeting expletive” policy (i.e., the policy that let such instances slide without penalty), and (ii) those that occurred after. I get the need to draw that latter line from Justice Kennedy’s majority opinion. He makes a point of saying that “[the] regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent”  (emphasis added). 

So once all complaints involving fleeting expletives or nudity that occurred before the 2004 Golden Globes decision are identified, the Commission would promptly dismiss them, since they would all be essentially identical to the Fox/NYPD Blue situations. All other complaints would be left for routine processing.

But with the sheer volume of pending complaints, it’s hard to imagine that the Commission is in a position even to begin such a triage process.

And let’s not forget the fact that, even if the FCC goes ahead with indecency complaints which may survive the Supreme Court’s decision, and even if it ends up issuing fines in those cases, the government will be hard-pressed to collect any fines in cases older than five years. That’s because of 28 U.S.C. §2462, a federal law that requires that lawsuits by the Feds to enforce a civil fine, penalty or forfeiture be initiated within five years after the underlying claims accrue. The Communications Act provides that, if a licensee hit with a fine simply declines to pay, the FCC’s only recourse is to sue the licensee for payment – and until that suit is finally resolved in favor of the FCC, the Commission can’t use the licensee’s alleged violence in any way that might prejudice the licensee. So any case that would be subject to the five-year statute of limitations in 28 U.S.C. §2462 could (and, in an ideal world, should) all be summarily tossed regardless of the Fox decision.

Blogmeister: When you look into your crystal ball, what do you see happening on the indecency front?

Swami: The Court told the FCC expressly that the Commission “remains free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” And it told the courts that they are “free to review the current policy or any modified policy in light of its content and application”. 

So we could see the FCC revise its policy. Or we could see the FCC stick to its guns, applying the current policy against another broadcaster in one of those nonfleeting expletive or post-Golden Globe cases. If that broadcaster then brings challenges the constitutionality of the entire scheme, that challenge could work its way up the courts, finally returning to the Supreme Court, maybe just as we round into yet another Presidential election year.

Or not. Concentrate and ask again later.

In fact, it assiduously avoided even coming close to Pacifica. Pacifica, of course, upheld – against a strong First Amendment attack – the FCC’s general authority to regulate broadcast indecency. This time around, the Court is relying on the Fifth Amendment’s due process clause (which, for our purposes here, assures adequate “notice”). Hence, Pacifica lives on.

But for how long? That’s where Ginsburg’s terse concurrence is particularly intriguing. It reads, in its entirety, as follows:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commis­sion’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

Now bear in mind that, the last time the Fox case rolled through the Supremes (back in 2009), Justice Thomas said pretty much the same thing (as Ginsburg's citation to Thomas’s 2009 Fox concurrence acknowledges). That makes two justices, on polar opposite ends of the ideological spectrum, ready to pound a stake into the heart of Pacifica. 

Check back here later for a more complete analysis by Swami Kevin Goldberg.

Swami: The government was claiming that, in return for the supposedly free spectrum, broadcasters should be happy to cough up some of their constitutional rights. I have a real hard time with that notion, particularly because even the Pacifica court didn’t seem to go down that road. But maybe the government is looking to move away from the “protect the kids” justification in light of the Supremes’ Brown decision last term. (In that case, the Court threw out a California statute restricting the sale of violent video games to minors. The Court held that the state hadn’t demonstrated that such games cause harm to minors. Justice Scalia, writing for the majority, observed that “disgust is not a valid basis for restricting expression”.)

Blogmeister: Another thing. How about the Fox lawyer’s willingness to throw the radio industry under the bus? Noting that Pacifica involved a radio broadcast, Justice Alito asked whether there is a basis to distinguish between radio and TV for purposes of indecency regulation. Counsel for Fox seemed happy to say that radio is different and, thus, on its own to argue that the FCC’s indecency policies can’t be applied to radio.

Swami: That was pretty striking. But for my money, the highlight of the argument came when ABC’s counsel pointed out to the Justices that the Supreme’s courtroom itself features images of bare breasts and buttocks. As counsel proceeded with his argument, he apparently noticed that Scalia was looking around the court to see if he could see those images. Counsel happily pointed them out to the Justice, noting that counsel hadn’t focused on them before. “Me neither”, responded Scalia. And, as a service to our readers, here’s one of those images (depicting Philosophy, from the north wall frieze):

Blogmeister: OK, enough of the color commentary. Let’s get down to the real nitty-gritty. How do you figure the Court’s going to come out here? Are you sticking with your prediction from last June?

Swami: I still see Justices Kagan and Ginsburg voting in favor of the broadcasters. Not a big surprise – at least to me – since I had them both in this camp when I made my initial predictions last year. Both Kagan and Ginsburg expressed serious concern about the “appearance of arbitrariness about how the FCC is defining indecency in concrete situations”, as Ginsburg put it. I thought it was noteworthy, too, that Justice Ginsburg – an opera buff – pointedly asked whether televising a nude scene from The Makropulos Affair (a Czech opera – who knew? – apparently misidentified in the official transcript as “Metropolis”, at least according to some commentators) would run afoul of the FCC. 

Blogmeister: I just moved The Makropulos Affair way up in my Netflix queue.

Swami: Not to be confused with Fritz Lang’s great “Metropolis”, the classic 1927 sci-fi film. 

But enough about movies, operas, Kagan and Ginsburg. On to the other side of the Court, where it seems equally clear that Chief Justice Roberts and Justice Scalia are two solid votes for the FCC. Both surprised me a little, since they’re key switches from my predictions last summer. I figured that Scalia would set aside his morality-tinged aversion toward indecent speech in favor of his longstanding interest in protecting even controversial speech. Also (as I pointed out last year), his opinion in the Brown case sure suggested that he doesn’t buy into the “we must protect the kids” rationale that underpinned the 1978 Pacifica decision. And for Roberts, I thought he would stick with the position he staked out in Snyder v.Phelps and United States v. Stevens. I probably shouldn't have trusted my gut on either one.

During the argument, both Roberts and Scalia clearly indicated that they believe that broadcasters have a higher responsibility to society, and that the government is entitled to insist on what Scalia termed a “certain modicum of decency”. It looked like they were buying into the government’s new contract theory – i.e., since the government is supposedly giving broadcasters their lucrative spectrum for free, the government can exact something in return. Seeming to step out of his role as judge and into the role of regulator, Roberts said that “[a]ll we are asking for, what the government is asking for, is a few channels where you are not going to hear the S word, the F word. They are not going to see nudity.”   Shoot, simply his use of “S word” and “F word” alone shows you where he stands. Ditto for Scalia, who used similar terms to refer to “shit” and “fuck”.

Blogmeister:  Here’s an interesting factoid: the only two times the Supreme Court has considered whether the FCC can penalize the broadcast of certain words, none of those words has been spoken during the oral arguments. That’s more than two hours of people arguing about the use of a small handful of particular words, and those words never make an appearance. (Check it out: recordings of the arguments in Pacifica and Fox are available on-line.) 

Maybe I’m missing something, but if nobody even says what the words are – and everybody instead pussy-foots around them – that suggests that the words themselves have some inherent mystique that makes them different from all other words. Different and, therefore, subject to different treatment by the government. But words are just words, collections of letters and sounds, with no force in and of themselves. So a failure even to mention what the words at issue are could be seen as a major concession that they really are different. Roberts’s and Scalia’s references to “the S word” and “the F word” reflect their apparent belief that one should not utter the words even in a dispassionate judicial forum in which those words are the very focus. That’s obviously bad news.

Swami: Agreed. (And if you’ll notice: I don’t share the Justices’ aversion to using the words themselves. Before we move on with my predictions, I should just come out and admit that, if I were on the Supreme Court, I’d vote to overturn the indecency regulations.)

So if I’m right on those four, the count’s at 2-2. Since Justice Sotomayor has recused herself from the case – presumably because she was sitting on the Second Circuit when both Fox and ABC rolled through on their way to the Supremes – it will take only four votes, total, to avoid reversal of the decisions below (both of which favored the broadcasters). Where are the other justices?

As is his custom, Justice Thomas didn’t open his mouth during the argument – he hasn’t asked a question during the last five and a half terms – so there’s nothing new there to analyze. I’m sticking with my earlier prediction: not only will he rule for the broadcasters, but he'll actually go the farthest in doing so. He may even take the position that both Pacifica and Red Lion should be abandoned by the court. 

Blogmeister: For the neophytes among our readers, we should explain that “Red Lion” was the 1969 case in which the Supremes held that the First Amendment rights of broadcasters can be abridged by the FCC because spectrum is scarce. Tossing Red Lion would be a huge development in communications law. When the Fox case passed through the Supreme Court back in 2009, Thomas issued a separate opinion observing the “doctrinal incoherence” of Pacifica and Red Lion and expressing an openness to reconsidering both. The Swami may be onto something here. 

Swami: Right, and that might seem very good for the broadcasters. But what if Thomas can’t get a majority of his colleagues to join him? He could end up just writing another separate opinion, which might not be useful in getting the indecency issue resolved once and for all. (More on that later.)

Anyway, Justice Alito seems pretty solid back the other way. In my view, of all the justices he’s the least friendly toward First Amendment rights. He did little during oral argument to make me believe that he’ll change that in this case. He pointed out that the number of over-the-air viewers is shrinking and asked, “why not let this die a natural death?”

Blogmeister: So whether or not there’s a First Amendment violation, he’d be content to just stand aside and let nature take whatever course it might? That’s some First Amendment sensitivity.

Swami: Yeah, that’s why I see him as a vote for the FCC here, which (if I’m right about everybody else so far) still leaves us at 3-3.  But don’t forget that we’ve also got Justices Breyer and Kennedy to consider. Fortunately, I had both in the pro-Fox camp last summer, and the oral argument didn’t fully move me off that.

Let’s start with Kennedy. He seemed skeptical about the government’s claim that there may be some symbolic value in imposing different indecency standards on broadcast TV as opposed to, say, cable. He also showed the most interest in the availability of the V-Chip, which could mean that he sees that as a non-regulatory answer to any possible concerns about children’s access to indecent programming. But he also expressed concern that overturning the indecency rules would inevitably open the door to the all kinds of vulgar television programming. He’s a question mark here.

Blogmeister: Which makes Justice Breyer crucial. 

Swami: And, unfortunately, Breyer seemed confused at times, particularly when he asked the government’s lawyer to walk him through the procedural posture of the case. He also seemed surprised that the ABC bare buttocks case was there at all, as if the Court should instead have been looking only at the Fox fleeting expletives case.

To me, the key to Breyer is his apparent concern about whether the Court really has to, or should, overrule Pacifica.  He seemed to me uncomfortable about holding Fox liable for the fleeting expletives, but possibly more willing to let the FCC penalize the nudity in NYPD Blue. Importantly, he seemed to feel that both results could be reached using the existing Pacifica standard. 

Blogmeister: That doesn’t surprise me. The Supreme Court traditionally is reluctant to overrule itself. And this may be a good example of why. Pacifica was decided back in 1978. It involved an extreme set of facts – the George Carlin monologue at issue involved 12 minutes of the classic “seven dirty words” repeated over and over. The Court in Pacifica emphasized that its decision there was limited to the facts of the case. In his crucial concurring opinion Justice Powell stressed that that narrow focus would be “conducive to the orderly development of this relatively new and difficult area of law” by the Commission and the courts. 

The problem is that that “orderly development” hasn’t happened.

Instead, over the intervening three-plus decades the Commission has gone back and forth, up and down, this way and that way on indecency. And, most importantly, the “standards” it has invoked over the years have not been reviewed by the courts. (That’s the result of a number of factors, including the Communications Act’s odd provisions concerning judicial review of forfeiture decisions.)

It’s as if, 34 years ago, the Court held that it’s OK for the government to penalize folks driving at 100 miles per hour, but at the same time declined to say whether the government could penalize drivers at slower speeds – leaving that question to be decided in later cases through the “orderly development” of the law. No such later cases get to court. Then, 34 years later, the government tries to fine somebody for driving at 20 mph, and that guy challenges the fine, asking the Court (among other things) to throw out the 34-year-old decision as wrong. In such circumstances, the Court might figure that it could reverse the 20 mph conviction without having to toss out the earlier 100 mph ruling. 

Breyer seemed to be thinking that, maybe, even if Pacifica was and remains good law, the Commission’s Fox and ABC decisions can’t be justified.

Swami: So maybe he’ll write his own separate opinion laying that out. But if he does believe that the Second Circuit reached the correct result, even if for the wrong reasons, the bottom line would be good for broadcasters. Unless the FCC gets five votes to reverse the result below, that result would stand. So if Ginsburg, Kagan, Thomas and Breyer – and possibly Kennedy – all agree that the Second Circuit’s reversal of the FCC was correct, broadcasters should prevail.   

Let’s go on the record: the Swami says that the split among the justices will most likely be 5-3 (affirming the Second Circuit) or 4-4. That’s just a count as to which sides the justices take. Almost certainly we’ll see a split court with multiple opinions and, probably, no single opinion reflecting the views of a majority of justices.

Blogmeister: And while that’s not a bad thing, it’s not optimal. Multiple opinions, including separate concurrences from Thomas (going the furthest, possibly urging that Red Lion be overruled) and/or  Breyer (staying the narrowest, probably looking to preserve Pacifica) would leave everybody in a very frustrating position: we would still not know precisely what programming the Commission can constitutionally prohibit as “indecent”. We’d be back on the quest for “orderly development” of this “difficult area of law”. We can all hope that some such “orderly development” might occur, but based on the last 34 years of that same quest, it’s hard to be optimistic.

Swami: Which kinda puts us right back where we were before all this right? In a place where the broadcasters lack any real certainty as to when they’ll be punished.

To review the recent history of the case, we go back to 2008, when the Third Circuit first reversed the FCC’s decision to whack CBS with a $550,000 fine. Its decision was based on administrative, rather than constitutional, grounds. That is, the court concluded that the FCC’s imposition of a fine for a “fleeting” exposure of a breast was inconsistent with previously-established Commission policies. While the FCC can, of course, change its policies if it wishes, in doing so it must provide notice and an explanation of the change. According to the court, the Commission came up short on the whole notice/explanation thing. Because it found that the case could be resolved on non-constitutional grounds, the court did not take on CBS’s First Amendment arguments.

The FCC asked the Supreme Court to review the Third Circuit’s decision. However, in the meantime the Supremes considered a similar decision from the Second Circuit in the Fox case. In that case, the Supreme Court held that the FCC had adequately explained the apparent abandonment of its “fleeting expletive” policy. As a result, in May, 2009, the Supremes shipped the Fox case back to the Second Circuit for further consideration, and at the same time it shipped the CBS case back to the Third Circuit.

A year later (in July, 2010), the Second Circuit cranked out its decision on remand. There the Second Circuit held that the Commission’s indecency policy violates the First Amendment because it is unconstitutionally vague.   The FCC promptly asked the Supremes to look at that decision, and the Supremes agreed. As noted above, we’re expecting that that case will be argued in early 2012, and a decision should be out by July, 2012.

Meanwhile, the Third Circuit took its own sweet time . . . some 16 months longer than the Second Circuit. And the result of its deliberations, issued November 2, 2011, is nowhere near as dramatic as the constitutional gauntlet thrown down by the Second Circuit.

Instead, the Third Circuit has again concluded that the FCC’s decision in CBS reflected a change in policy that was not adequately announced or explained. Even though the Supreme Court’s 2009 opinion in Fox accorded the Commission considerably greater leeway to change policies than the Commission had previously been thought to enjoy, the Third Circuit remains convinced that the FCC’s CBS decision cannot survive even the more relaxed standard set out in Fox. 

And even the dissenting judge on the Third Circuit panel would reverse the CBS decision and remand it to the FCC. In his view, the Commission did not apply the proper standard of mens rea (a legal concept relating to the accused party's level of improper intent or "guilty mind"), so he would send the case back to the Commission for further consideration.

Where the case goes from here isn’t clear. The Commission could ask the Third Circuit to reconsider its position. (That’s the approach the Commission tried, without success, in the Second Circuit.) The Commission could try to haul CBS back up to the Supremes. Or the Commission could throw in the towel.

Since the Commission hasn’t said die on this yet, it’s probably a pretty good bet that they will continue to fight the fight, at least in the short term. The goal would be to try to keep the case alive in some venue at least until the Supreme Court acts in the Fox case next year. If the Supremes decide that the FCC’s overall indecency policy runs afoul of the First Amendment, then presumably the FCC will drop any further appeal in the CBS case, as there will no longer be any indecency policy to enforce. But if the indecency policy somehow survives Fox’s constitutional challenge, the FCC might want to continue to slug it out with CBS on the non-constitutional issues.

So here we are, nearly eight years after Ms. Jackson’s 9/16 second exposure, with at least several months – and maybe a year or more – of additional litigation ahead. But for the foreseeable future, the broadcast interests (represented by Fox and CBS) appear to be in the driver’s seat. Let’s hope they stay there.

Had the Commission chosen not to take the cases up to the Supremes, the Commission would have been unable to continue those efforts without first radically revising its regulatory approach. (The alternative, of course, would have been simply to walk away from indecency enforcement entirely – an alternative that was, obviously, not the Commission’s first choice.) Such a radical revision would have sucked the Commission back into the regulatory and constitutional quagmire of indecency regulation that has existed for nearly four decades since the Supreme Court’s seminal decision in Pacifica (often referred to as “the seven dirty words” case).

So the Commission is going with a Hail Mary to the Supreme Court, apparently hoping that the Supremes will tell the Second Circuit that its Fox and NYPD Blue rulings were wrong.

We won’t get deeply into the specifics of the FCC’s arguments to the Supreme Court here. Since the next act of the indecency soap opera could play out over the next year or so, there should be plenty of time for that down the line. But here are a few things to know that might help you appreciate the drama as it unfolds.

First, even though the FCC has asked the Supremes to review the Second Circuit decisions, there’s no guarantee that that request will be granted. Unlike the federal circuit courts of appeal, the Supreme Court is not (except in very, very rare instances, and this isn’t one of them) required to take cases just because one of the litigants asks it to.

A party wanting the Supremes to consider its case files a petition explaining why the issues in the case are important enough to warrant the Court’s attention. (Want to impress your lawyer friends? The technical name for such a petition is “petition for certiorari” – that last word generally, but not invariably, being pronounced “sur-she-or-RARE-eye”. You can also short-hand it as “cert petition”, where “cert” is pronounced like the candy/breath mint.) The Supreme Court rules describe the types of issues that might get you in the door. Essentially, they’re looking for cases involving some “important federal question”, particularly if the lower court has decided that question in a way that conflicts with decisions by the Supreme Court or other courts of appeals.

In its petition (which was co-signed by the Solicitor General, as is customary but not mandatory in such cases), the Commission argues that the Second Circuit’s decisions conflict with the Supreme Court’s 1978 Pacifica decision and a couple of 1990s-era indecency decisions out of the D.C. Circuit. The Commission also claims that the Second Circuit’s “vagueness” analysis was inconsistent with a 2010 Supreme Court decision. And finally, the Commission asserts that, if the Second Circuit rulings remain in effect, the Commission will be unable to do what Congress has told it to do, i.e., enforce the statutory prohibition against the broadcast of indecent material.

The next step in the process will be the filing of oppositions to, and/or statements in support of, the FCC’s cert petition. Oppositions are due within 30 days of the FCC’s filing (i.e., by May 23), unless the time gets extended. Once oppositions are filed, the Court will hunker down, read through the pleadings, and decide whether to take the case. Since the Supreme Court’s annual term traditionally wraps up by the end of June or early July, it’s obviously too late to get the case briefed and argued this term, but there’s at least a chance that the Court might rule, before it closes up shop this summer, on whether or not it will hear the case next term.

If the Court denies the Commission’s petition, that’s just about all she wrote – the Second Circuit decisions will then stand and, if the FCC’s petition is accurate, the Commission will be “preclude[d] . . . from effectively implementing statutory restrictions on broadcast indecency”. If the Court grants the petition, it will set a briefing and argument schedule that would probably call for arguments sometime this Fall. In that case we’d be looking for a decision on the merits from the Court by the end of the term, i.e., by July, 2012.

Oddsmakers usually don’t give cert petitions much chance. The Court gets lots of them, but ends up granting only a tiny percentage. This case may be different, though. The Fox case has already been to the Supremes once, which suggests that the Court may have an interest in taking a look at the constitutionality of indecency regulations. That is, after all, a question which the Court has not revisited in more than 30 years. (On its first trip to the high court in 2009, the Fox case was resolved on non-constitutional grounds, which set the table for the Second Circuit to issue a ruling on constitutional grounds, leading to the current state of affairs.)

That’s the good news for the Commission.

The bad news is that, if the Court does take the case, the Commission may find the Court interested in significantly more than mere indecency. As one of my fellow bloggers observed last year,

in his separate opinion in the Supreme Court’s 2009 Fox decision, Justice Thomas specifically invited reconsideration not only of Pacifica, but also of Red Lion. Red Lion is the 1969 Supreme Court decision upholding the Fairness Doctrine (and, by implication, special regulatory treatment for broadcasting) because of the supposed “scarcity” of broadcast spectrum. Thomas referred in particular to the “questionable viability” of both Red Lion and Pacifica. If four of his colleagues were to agree with Thomas that the scarcity rationale is no longer valid, that could cause massive upheaval in virtually every aspect of the FCC’s operation. 

So there is at least some basis for thinking that the Court could see this case as an opportunity to review the continued viability of the “scarcity rationale” which forms the historical foundation of much of the FCC’s regulation of broadcasting. If that were to happen, it’s at least conceivable that the Commission could lose not only its ability to regulate indecency, but its ability to regulate broadcasting as it has for decades.

So the stakes could definitely be high for all concerned. We’ll keep you updated on the action as it goes down.

ABC appealed the action to the Second Circuit, which had in 2007 invalidated the Commission’s indecency policy on non-constitutional grounds in the Fox case. Action on the ABC appeal was put on hold while the Fox case headed to the Supreme Court (in 2008) only to get bounced back to the Second Circuit (in 2009), which then held the policy to be unconstitutional in July of last year. (The FCC asked the Second Circuit to reconsider its Fox decision, but the Court declined the opportunity, as most of us expected it would.)

In pleadings filed in the ABC case, the FCC acknowledged that the 2010 Fox decision “invalidated the [FCC]’s indecency policy in its entirety.”  That is, there was nothing left of the indecency policy after Fox. And while there may be some arguable factual distinctions between the Fox case and the ABC case – for example, Fox involved mere unscripted language, while NYPD Blue involved “scripted nudity” – the FCC effectively conceded that those were immaterial because the legal principle announced in the Fox case didn’t depend on any particular factual distinctions. (For what it’s worth, the ABC Court expressly rejected the notion that there were in fact any significant distinctions between Fox and ABC.)

Since the ABC case involved the FCC’s application of its indecency policy, and since that policy had already been held to be unconstitutional (in the Fox case), the Second Circuit had little difficulty in concluding that the NYPD Blue fine should be vacated.

According to a brief notation in the decision, the Summary Order does not have any “precedential” effect, which means that the ABC decision itself will not be binding on the Court in any other cases that may arise. But that probably doesn’t make much difference, because it’s clear that Fox is binding. And given the ABC panel’s emphatic affirmation of the broad reach of the Fox decision, the FCC should not expect any different result out of the Second Circuit any time soon. So while the ABC decision may not add any new dimension to the indecency debate, it certainly suggests that the Second Circuit remains solidly committed to the rationale set out in Fox.

Where do we go from here? There are now three separate cases – Fox, ABC and CBS’s continuing saga relative to the Janet Jackson/Super Bowl matter – that could go to the Supreme Court sooner rather than later. Fox and CBS are not quite yet teed up to go straight to the Supremes, and in view of its total reliance on Fox, it seems unlikely that the FCC would attempt to take ABC up by itself. Whether the issue of the FCC’s indecency policy is ultimately brought back to the Supreme Court – and, if it is, whether the Supremes will agree to look at it – is anybody’s guess. But if the issue does make it up there, we could end up with a decision that fundamentally changes FCC jurisprudence as we have known it for decades: not just the law of indecency, but the extent to which the FCC may permissibly regulate any broadcast content.

Stay tuned.

[Blogmeister's Note: This post has been updated to reflect that the Second Circuit denied the FCC's petition for rehearing (on November 22, 2010).  The decision was largely unpublicized and unreported, and we found out about it only through our old friend Andy Schwartzman, who kindly brought it to our attention.]

As the FCC sees it, the Second Circuit panel should have focused narrowly on the particular facts of the case before it and should have assessed the FCC’s analysis of those facts, nothing more and nothing less. Instead, at least according to the Commission, the panel considered other facts and circumstances involving other cases to reach its conclusion that the overall indecency policy – not merely that policy as applied to the Fox facts – was too vague. But, the Commission argues, there is nothing vague about the notion that “fuck” and “shit” – the words uttered by Cher and Nicole Richie in the Fox broadcasts at issue – are indecent; accordingly, even if there might be some question about whether other material might or might not be deemed “indecent”, the same cannot be said of the particular material before the court.

The Commission gussies up this argument with a discussion of the standards for when a rule is “vague” as a constitutional matter, although that discussion includes, at most, only passing mention of the different “overbreadth” standard often used in First Amendment cases.  Suffice it to say that, whatever the other merits of the Commission’s argument on this point, it presupposes that the language at issue here was, in fact, “indecent”.  But since the Commission had determined in at least two cases more or less contemporaneous with its decision in the Fox case that similar language was not indecent, that assumption is obviously open to question.

The Commission also characterizes the panel’s decision as effectively rejecting the “contextual” approach which the FCC says it has taken to indecency enforcement. Other courts – including the Supremes in the Mother of All Indecency Cases, Pacifica, not to mention at least one other Second Circuit panel – have repeatedly emphasized the need for the Commission to consider “context”. Thus, the Commission argues, the Fox panel’s seeming rejection of that approach should be reviewed and reversed as inconsistent with precedent.

The problem with this aspect of the FCC’s argument is that it’s not entirely clear that the panel rejected the importance of “context” as the FCC claims. Rather, the panel appears to have been critical not of the need to consider “context”, but rather of the FCC’s less than clear – opaque, some might say – approach to how “context” is considered. While the Commission undeniably incants the term “context” in its indecency opinions, that incantation often appears to be little more than the legalistic equivalent of “abracadabra”, a rhetorical flourish with no apparent meaning or substance.

As one example – cited by the Second Circuit panel – the Commission’s contextual analysis enabled it to reach diametrically inconsistent conclusions about the use of the term “bullshitter” in a single instance, each time citing an identical contextual aspect. First, the fact that that word was aired during a news interview made it indecent; but on further thought, the Commission concluded that, because it was aired during a news interview, it wasn’t indecent. In the panel’s words, if the Commission does have any actual indecency standard, it is a standard that “even the FCC cannot articulate or apply consistently.”

The Commission’s final argument is one of apparent exasperation. As it reads the panel decision, the Commission can’t win because any changes to make its contextual analysis more predictable would raise further First Amendment concerns, subjecting the FCC to a Catch-22.

This argument is intriguing because, by making it, the Commission could be seen as conceding that, as a practical matter, indecency is not susceptible to regulation within constitutional limitations. To be sure, the Supreme Court in Pacifica held that the Constitution does permit some regulation of broadcast indecency. But the Supremes then left it to the Commission and the courts to develop, on a case-by-case basis, an appropriate analytical approach in which “context” would be all-important. If, after more than 30 years, the best that the FCC has been able to come up with is the “analysis” invoked in Fox, is it possible that the agency is incapable of regulating indecency – beyond the Carlin monologue at issue in Pacifica – constitutionally? The FCC’s rehearing petition seems to imply that.

The Second Circuit now must decide whether or not to grant rehearing, either by the original panel or en banc. While that may sound simple, it’s not. In particular, the en banc rehearing process in the federal courts ranks up there with papal elections when it comes to procedural quirks. The FCC’s petition will first be circulated to all ten active judges on the Circuit as well as Senior Judge Leval, who sat on the original panel. Any of those 11 can ask that his/her colleagues be polled as to whether or not to consider the petition. If nobody asks for such a polling, the petition is denied. If polling is requested, then the ten active judges – but no senior judges (i.e., Judge Leval doesn’t participate) – are polled. Unless a majority of those polled vote for rehearing, the petition is denied. If a majority of the poll votes to grant rehearing, then the case is re-briefed and re-argued in front of all ten active judges and Senior Judge Leval. There is no guarantee that, even if the case gets that far, the FCC would prevail. A majority of the en banc court could just as easily affirm the panel’s decision.

In other words, the FCC has a long row to hoe.

Meanwhile, a couple of other indecency cases also continue to wend their way through the Courts.

A separate panel of three judges in the Second Circuit is currently considering an appeal of the FCC decision that the broadcast of “naked buttocks” during an episode of NYPD Blue was indecent. After the Fox decision came down in July, the NYPD Blue panel asked the parties for supplemental briefs discussing the impact of Fox on the NYPD Blue case. The FCC’s terse, four page, brief noted the Commission’s belief that the facts of the NYPD Blue broadcast, which involved the scripted display of adult nudity, were very different from those at issue in Fox, which involved the utterance of unscripted “fleeting expletives”. Nevertheless, the Commission conceded that the agency’s decisions in both Fox and NYPD Blue were based on the same “contextual framework” that the Court found unconstitutional in Fox. According to the Commission, the Court’s Fox opinion therefore “appears to suggest” that the policy would be unconstitutional as applied to the NYPD Blue case as well.

As a result, the Commission suggests that the NYPD Blue appeal be put on hold until after resolution of any rehearing motion (the Commission’s NYPD Blue supplemental brief was filed several days before the Fox petition for rehearing went in). With both cases pending in the same court, it seems likely that there will not be any decision in the NYPD Blue case until the Fox rehearing request is disposed of.

And just down the road in Philadelphia, the Third Circuit is also dealing with indecency in CBS’s appeal of the Commission’s Janet Jackson/Super Bowl decision. As we reported in the April issue of our Memo to Clients, the Third Circuit, after hearing oral arguments early this year, asked for supplemental briefs on issues that could allow the court to resolve the case without addressing the constitutional questions regarding the FCC’s indecency policies. While the Third Circuit does not appear to have asked the parties to discuss the possible effect of Fox on the Janet Jackson case, CBS (the appellant) did notify the court of the issuance of Fox decision, thus suggesting that the Second Circuit’s decision was at least relevant to the Third Circuit’s deliberations. The FCC responded with a two-page letter in which it observed that the Third Circuit is not bound to follow Second Circuit decisions and that, anyway, the Second Circuit decision is flawed, and, by the way, the Third Circuit is still considering issues that might allow it to resolve the Janet Jackson case on non-constitutional grounds.

While the sparring before the various circuits is important and could prove decisive, the real question is whether – and if so, when – we’ll ever get to the Main Event. That would be review by the Supreme Court of the constitutionality of the FCC’s indecency enforcement policy as it has developed since Pacifica. Such review could have implications for the FCC’s authority far beyond the somewhat narrow issue of indecency. With the FCC’s election to seek rehearing of Fox at the Second Circuit (rather than ask the Supremes to take a look at the case), that Main Event has been deferred at least a year or two.

Frankly, I don’t see much change from Stevens. It’s pretty safe to say that the “liberal block” of the Court will affirm the Second Circuit and strike down the FCC’s regulatory scheme. (That would parallel the vote in the 1978 Pacifica case, where the four liberal survivors from the Warren Court hung together in dissent.)  Let’s also assume that Justice-designate Kagan will: (a) be confirmed and (b) vote the same way that Justice Stevens did in Stevens (no relation, obviously). So right there you’ve got Breyer, Ginsbug, Sotomayor and Kagan ready to slap the FCC down.

I think Fox also gets Justice Thomas. He was the only Justice in the 2009 Fox decision to flat out question the rationale for broadcast content regulation. His separate opinion there indicated that he’s itching to do away not only with the indecency regulations, but also with the scarcity doctrine underpinning all regulation of broadcast content.  Plus, he voted with the majority in Stevens.  And don’t forget his vote in U.S. v. Playboy Entertainment Group, Inc.  There the Court struck down a requirement that cable operators scramble sexually explicit content.  He voted with the majority, saying “I am unwilling to corrupt the First Amendment to reach this result. The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.”

On the other side, I suspect that Justice Alito is the most likely to vote to reverse the Second Circuit and side with the FCC.  He was the lone outlier in Stevens and has generally seemed to be paternalistic and protective of “society’s morals” in similar cases.

That gets us to 5-1, with Chief Justice Roberts and Justices Scalia and Kennedy left. I think you might see one, maybe  two, of them side with the FCC, but not all three.   Why?

Chief Justice Roberts wrote the strong majority opinion in Stevens and was clearly uncomfortable with the lack of regulatory precision in that case.  While it’s possible that he could line up with Alito, I just don’t see it. After all, the Chief was also in the majority in the most controversial First Amendment decision of the most recent term (Citizens United v. Federal Election Commission). There is really no comparison between Fox and Citizens United, but if the Chief is going to go that far out on a limb in favor of the First Amendment, it's going to take him a while to get back in, even if he really wants to come back.

Speaking of Citizens United, that decision was written by Justice Kennedy.  He was also in the majority in Reno v. ACLU and wrote the opinion in the U.S. v. Playboy.

I originally had Scalia solidly on Fox’s side, but I began to rethink this a little. He wrote majority decision in 2009, when Fox first blew through the Court and the FCC won. (As you will recall, the Court then sent the case back down on administrative law grounds without reach the thornier constitutional issues.) But that doesn’t say much: he was very clear that he was ruling on the non-constitutional issues only, and he never hinted at how he might come out on the First Amendment issue here. Some of his votes in other First Amendment cases suggest he might side with Fox here. Remember, Scalia was the swing vote (joining uber-liberal Justices Brennan and Marshall) in Texas v. Johnson, which accorded First Amendment protection to flag burning. He was also clearly with the majority in Stevens.

On the other side, he’s shown that he is willing to “vote morality”. In Barnes v. Glen Theater he concluded that the First Amendment did not prevent restriction of nude dancing.   He also dissented in U.S. v. Playboy Entertainment Group, Inc.  Ultimately, I’m hoping that he’ll vote to strike down the FCC’s indecency scheme because: (1) he justified the moral high ground in Barnes only after declaring nude dancing to be conduct, not expression; (2) he dissented in Playboy only after deciding that the content providers in that case were clearly providing – and intending to provide – hard core sexually-oriented material, not at all the case here; and (3) he was in the majority in Reno v. ACLU back in 1997 where regulation of supposedly “harmful” material on the Internet was declared unconstitutional, in part due to the vagueness of the law.

So maybe more than one of Scalia/Roberts/Kennedy drops off to join Alito in upholding the FCC’s indecency policy.  But I doubt it. And in any event, I clearly don’t think any more than those three join Alito in ruling for the FCC. 

Bottom line: Kevin’s Krystal Ball says that Fox wins in the Supremes.

Clouding the FCC’s choices is the fact that CBS’s appeal in the Janet Jackson case is currently pending in the U.S. Court of Appeals for the Third Circuit. Since that case also involves the indecency policy so thoroughly trashed by the Second Circuit in Fox, the Commission might be inclined to hold off until the Third Circuit shows its hand before making any decisions about the next appellate step through the indecency minefield. (The FCC has 90 days to file its cert petition – and that can be extended another 60 days under some circumstances – so the Commission may sit back and wait at least a little while for a Third Circuit decision to roll in.)

[Blogmeister’s Note: Kevin Goldberg, our crack Supreme Court observer and First Amendment guru, has advised that, according to Kevin’s Krystal Ball, the Second Circuit’s decision would be affirmed in the Supreme Court by at least 6-3, maybe even 7-2, if it were to get that far. Kevin has undertaken considerable analysis to back this up – let us know if you would like us to post that analysis – and he assures us that he is not relying on the soccer-predicting German octopus. Some reports, however, indicate that he has his own octopus powering the Krystal Ball (see illustration at right).]

Of course, the Commission could also just run up the white flag and forget about appealing any further. In that case, its indecency options would be reduced to two: (1) go back to the drawing board and attempt to develop an indecency enforcement policy that passes constitutional muster; or (2) accept the fact that indecency is not susceptible to government regulation.

In view of the zeal with which the FCC has been flexing its anti-indecency muscles in recent years, (2) seems an unlikely choice. That unlikelihood is underscored by Commissioner Copps’s statement concerning the Second Circuit decision. In that statement Copps expressed his hope that the FCC would appeal the case, and he called on the Commission to “move forward immediately to clarify and strengthen its indecency framework”. Hmm . . . we’re guessing that he would opt for choice (1). 

But so far Copps is the only Commissioner who has spoken up on this. Others might reasonably take the position that now would be a good time for the Commission to get out of the business of trying to regulate indecency. This is particularly so since the FCC could claim that such a retreat was strictly a reaction to the Second Circuit’s decision. That is, if any critics tried to beat up on the Commission for giving up too early, the Commissioners could simply respond that the Court made them do it.

While the FCC plans out its next move on the litigation front, what about all those indecency complaint proceedings which have been piling up at the Commission over the last several years?

The good news is that, in the aftermath of the Fox decision, it seems very unlikely that the FCC would attempt to take any enforcement action based on pending complaints. After all, the Second Circuit told the FCC in no uncertain terms that the Commission’s indecency policy is unconstitutional. With the Second Circuit’s order sitting there, the Commission seems to have no choice but to stand down unless/until that order is reversed. So don’t expect to see any more fines or forfeitures or notices of apparent liability or even letters of inquiry relating to allegations of indecency while the Second Circuit’s Fox decision is alive and kicking. 

And similarly, anyone who is already in the middle of an indecency inquiry – say, for example, every Fox affiliate who received the American Dad inquiry – is probably off the hook for responding to the FCC’s questions.  (The Commission could theoretically ask the Second Circuit to stay the effectiveness of its order. The odds that such a request might be granted fall comfortably in the “good luck with that” range.)

Ironically, the FCC’s likely inaction on pending complaints is bad news as well. Lack of FCC action would mean that all the stations whose license renewals have been held up for years solely because of pending indecency complaints would probably not see those renewals granted in the short term. That’s frustrating: once a court has determined that an agency is acting unconstitutionally, regulatees who have suffered and are continuing to suffer from such unconstitutional activity should logically be entitled to prompt relief. While it would be nice if the Commission were to do the right thing here, you probably shouldn’t count on that happening. Pending applications are likely to remain pending.

The Commission could clear up any uncertainty about all these things by issuing a public notice setting forth its plans. If that happens, we’ll let you know. In the meantime it would probably be advisable not to hold your breath.

Acknowledging that the Supreme Court (in the 1978 Pacifica case) had clearly held that the Constitution permits some regulation of indecency, the Second Circuit observes that the media landscape has changed dramatically in the 30 years since Pacifica. The overwhelming penetration level of cable and satellite services and the development of an “omnipresent” Internet offering all sorts of video programming starkly contrast with the state of affairs in 1978, when broadcast media occupied a “uniquely pervasive presence in the lives of all Americans”. The Circuit also notes the technological controls now available to help parents police content in their own homes.

But even within the confines of Pacifica, the Second Circuit concludes that the FCC’s policy on indecent broadcasts exceeds Constitutional limits because the policy is impermissibly vague. 

Significantly, the Circuit’s ruling targets the FCC’s entire indecency standard – not just the “fleeting expletives” component that was the focus of its 2007 opinion. 

In a tour de force of First Amendment analysis, the Second Circuit takes apart virtually every element of the FCC’s policy and the FCC’s defense of that policy. The Circuit finds that the standard itself is so vague that neither the broadcast industry nor the FCC itself could ever be certain which words or images qualify as “patently offensive” under the existing standard. The Court also observes that the FCC’s presumptive prohibition against the words “shit” and “fuck” can’t survive because the FCC can’t justify why some uses of those words have been prohibited and some not.

For example, how could the FCC permit the broadcast of repeated uses of certain “bad” words by fictional soldiers in Saving Private Ryan, but proscribe the use of those same words by real life musicians in a documentary about the blues? The Commission has on occasion attempted to explain its actions on the basis of such factors as whether the words are “integral” to a particular program or whether the program is a “bona fide news interview”. But in the Circuit’s view, “[t]here is little rhyme or reason to these decisions”.

The Second Circuit describes the enormous First Amendment harms that naturally flow from “the FCC’s indiscernible standards”. The Court notes the inherent risk that vague standards applied on an “ad hoc” basis by government officials allows for the suppression of particular points of view: “it is hard not to speculate that the FCC was simply more comfortable with the themes in ‘Saving Private Ryan,’ a mainstream movie with a familiar cultural milieu, than it was with ‘The Blues,’ which largely profiled an outsider genre of musical experience.” 

The Circuit also recognizes that the FCC’s vague standards force broadcasters to choose between (a) censoring controversial programs and (b) risking massive fines or loss of licenses – the unsurprising result being that many broadcasters choose to self-censor. According to the Court, concern about possible FCC enforcement efforts has prompted stations to edit or refuse to air a wide range of programming, including a documentary on the September 11th World Trade Center attack, literary readings, live news programs, political debates, sitcoms and dramatic programs. 

And with that, the Second Circuit has struck down the FCC’s indecency policy. While the Court acknowledges that, unless and until Pacifica is overruled, the FCC could conceivably create a constitutional policy, the agency’s current policy does not pass Constitutional muster.

The Second Circuit’s decision represents an unambiguous defeat of the FCC’s current indecency policy – but it’s not likely the last word on the subject. The FCC will almost certainly appeal to the Supreme Court. And let’s not forget that the Third Circuit still has the Janet Jackson Super Bowl case pending – raising the possibility of conflicting decisions between the two federal courts. Such a “circuit split” would virtually guarantee a Supreme Court review. 

The prospect of Supreme Court review focusing on the constitutionality of indecency regulation is particularly exciting because, in his separate opinion in the Supreme Court’s 2009 Fox decision, Justice Thomas specifically invited reconsideration not only of Pacifica, but also of Red Lion. Red Lion is the 1969 Supreme Court decision upholding the Fairness Doctrine (and, by implication, special regulatory treatment for broadcasting) because of the supposed “scarcity” of broadcast spectrum. Thomas referred in particular to the “questionable viability” of both Red Lion and Pacifica. If four of his colleagues were to agree with Thomas that the scarcity rationale is no longer valid, that could cause massive upheaval in virtually every aspect of the FCC’s operation. 

In the meantime, broadcasters should not take the decision as a green light to start airing “R” rated movies at mid-day. The Second Circuit struck down the FCC’s policy interpreting the federal statute prohibiting “obscene, indecent or profane language” but not the statute itself. In other words, it’s still technically illegal to broadcast such fare, even if there is no obvious way in which the government could penalize it in the wake of the Second Circuit’s decision. As has always been the case, broadcasters will need to continue to exercise good judgment in their selection of programming. We, as always, will stay tuned.

Three times in the past year the Third Circuit asked the FCC and the other parties to the case to update the Court on the status of those proceedings at the Commission. In its last such request (in December, 2009), the Court indicated some impatience with the lack of apparent progress: the Court expanded its previous request to ask why the stay shouldn’t be lifted and why the Court shouldn’t proceed to hear the case. The Commission responded that the Court really ought to wait until the conclusion of the 2010 quadrennial review. It appears that the Court was not convinced. 

In a very brief Order, the Court has now lifted the stay, and established a briefing schedule for the remainder of the case. With initial briefs now due on May 17, and the overall briefing cycle set to wrap up by July 1 (barring any intervening interruptions), things are likely to move reasonably quickly. 

In the interim, the 2008 changes to the newspaper/broadcast cross-ownership rule will go into effect, finally. But bear in mind that the current Commission has already made clear that it does not approve of those 2008 changes. Moreover, until the Third Circuit issues its decision on the merits of the pending appeals, the longevity of those changes is still very much an open question. (Recall that, in its 2004 opinion, the Third Circuit gave the thumbs up to relaxing the cross-ownership ban as a general matter, but at the same time gave the thumbs down to the mechanics of precisely how the Commission proposed to do the relaxing.) So the impact of the Third Circuit’s lifting of the stay is likely to be minimal for almost everybody, at least for the time being. (The technical effectiveness of the 2008 changes will put some burdens on a limited number of parties to the appeal, but they are by far the exception, not the rule.)

Interestingly, the FCC had already scheduled its next public workshop in the media ownership proceeding – a forum titled Newspaper/Broadcast Cross-Ownership Impact on Competition and Diversity in the Media Marketplace – for April 20. With the stay now lifted, that get-together could prove entertaining.

The majority opinion, written by Judge David Sentelle (with Judge Thomas Griffith joining him), relied on a standard statutory analysis of the FCC’s decision, an approach in which the Court accords a boatload of deference to the agency. As usually happens when the Court takes that deferential tack, the FCC got the benefit of the doubt: the majority held that the Commission was not unreasonable in its conclusion that the prohibition is still justified, even though a different panel of the Court had held, in an unrelated case decided last August, that “[c]able operators [ . . . ] no longer have the bottleneck power over programming that concerned the Congress in 1992.” (We blogged about that case, which involves the FCC’s ownership caps, here.)

But the victory may not comfort the Commission (or others supporting the prohibition) much.  The majority wrapped up its opinion by observing that “[w]e expect that if the [MVPD] market continues to evolve at such a rapid pace, the Commission will soon be able to conclude that the exclusivity prohibition is no longer necessary to preserve and protect competition and diversity in the distribution of video programming.”  In other words, while the Court was willing to give the FCC a pass this time around, the Commission shouldn’t necessarily count on similar treatment the next time around.

An interesting aspect of the majority opinion is that it rejected the cable petitioners’ claims that, rather than the lenient, deferential statutory standard of review invoked by the majority, a more rigorous, less-agency-friendly First Amendment standard should apply because the cable operators’ First Amendment rights were (according to the petitioners, at least) at stake. The majority declined to consider any First Amendment arguments because, according to Sentelle, the cable guys didn’t raise them. 

That was news to Judge Brett Kavanaugh, whose 29-page dissent – not quite twice as long as the majority opinion – relied heavily on First Amendment analysis to reach the conclusion that the FCC’s prohibition is unconstitutional.  In the majority’s view, the cable petitioners never squarely argued that theirs was a First Amendment attack, and (according to the majority) the Court should not be in the business of deciding issues of constitutionality which the petitioner did not “set forth as an issue in the case and to which it refers only obliquely.”  [Important practice tip: If you plan to argue a constitutional issue, be sure to refer to the Constitution in your Statement of Issues.]  In fairness, while Kavanaugh makes a big effort to “tease out” (in Sentelle’s words) enough constitutional references in the petitioner’s briefs to cobble together an argument, it does appear that the cable guys declined to present the constitutional issue as such.

For their part, while the cable petitioners may take considerable comfort from Judge Kavanaugh’s  constitutional analysis, even he had to acknowledge that “the First Amendment rights of a Cablevision or ESPN do not tug at the free speech heartstrings in the same way as the iconic political protester who lies at the core of the First Amendment.”  Ouch.

Next stop? The ball is in Cablevision/Comcast’s court. They could sit back and wait for the current extension to expire (in 2012) and see what the FCC does. Or they could continue their litigation by seeking either: (a) reconsideration by the Sentelle/Griffith/Kavanaugh panel; or (b) rehearing en banc by the full D.C. Circuit; or (c) review by the Supreme Court. 

The odds of success in pursuing any of those options tend to be long against the guy seeking review. However, consider these facts. First, the cable petitioners have the advantage of a very thoughtful dissent on their side, reflecting at least one judge’s approval of their First Amendment arguments.  That might be helpful in persuading Kavanuagh’s colleagues that those arguments have merit.  Second, another panel of the Circuit did issue that decision on the cable ownership caps just last August, containing language that could easily be viewed as inconsistent with (or at least in strong tension with) the more recent ruling.  The full Circuit might be inclined to look at that aspect to confirm that the Court’s rulings are not heading in opposite directions.  And if cable’s goal is really to get the Supreme Court to revisit the issue of cable’s First Amendment rights – an issue last decided  there more than a decade ago, by a slim 5-4 vote – Cablevision and/or Comcast may figure that the Supremes might want to take a look (particularly in view of Judge Kavanaugh’s dissent).

Even if the cable petitioners pursue their litigation successfully, though, it’s possible that that litigation won’t be resolved until 2011 or even 2012. And at that point, the prohibition against exclusivity will be expiring anyway . . . unless the Commission decides otherwise. 

[Department of Credit-where-credit-is-due: FHH’s own Paul Feldman represented the Broadband Service Providers Association as an amicus on the FCC’s side before the Circuit in this case.]

By 2007, their product was back on the market. This time FCC fined RMR $25,000 and issued warnings to its distributors.   Apparently believing the best defense is a good offense, RMR sued the FCC in a federal district court in Texas, where it not only sought to overturn the fine, but also alleged the FCC had unlawfully interfered with its contractual relationships.  The FCC countered with a demand for the $25,000. 

RMR’s strategy failed, for lack of a good offense to begin with. The district court decided it lacked jurisdiction over RMR’s claims, but not the FCC’s. The court ordered RMR to pay the money.

By now we can anticipate RMR’s next step: another appeal. This time it went to the U.S. Court of Appeals for the Fifth Circuit (which hears appeals from U.S. district courts in Texas). RMR went back to square one: it argued, yet again, that its device does not “generate” RF signals. Up to that point its record on this issue, by our count, was zero for five. 

Make that zero for six: in a recent decision from the Fifth Circuit, RMR lost yet again. This court, too, found the company had violated the FCC rules and ordered it to pay the money.

RMR’s next stop, we suspect, will be another try at the U.S. Supreme Court. The nine folks up there probably have better things to do, and the odds are they will turn down RMR yet again. But RMR seems unable to hear the word “No.” And they still have 11 more Federal courts of appeals to try  . . .

[Blogmeister note: The photo displayed above was provided to us by Decatur Electronics.]

The law was intended to snuff out a discrete subculture of animal cruelty videos – dubbed “crush videos” – said to appeal to a certain sexual fetish. Crush videos are visual depictions of women stepping on insects and small animals. (It pains us to describe these, but describe we must.)

Robert Stevens was the first person tried under this law. He was prosecuted for selling three videos containing scenes of pit bulls fighting each other or hunting other animals. Ironically, Stevens is a big fan of pit bulls, and dog fighting was not the main topic of these films. Rather, the dog fighting scenes were included to highlight the fact that the breed’s positive qualities are the same ones which make them strong fighting dogs. Stevens was convicted, drawing a multi-year jail term.

The U.S. Court of Appeals for the Third Circuit tossed the conviction. The government took the case to the Supremes, urging the creation of a new class of unprotected speech. (The last time the Court indulged in such a carve-out was in 1982, when it declared child pornography to be completely outside First Amendment protection.)

The American Society of News Editors, an FHH client, joined several other journalism organizations and media companies in a brief arguing that the statute is unconstitutional. And so it was that I ambled over to One First Street to observe the oral argument before the Court on October 6. I needed to see whether I had any reason to fear for the future news coverage of a vast range of animal-related stories – including stories about local hunting ordinances, Spanish bullfights, or attempts to stop animal cruelty, to cite just a few examples. All such coverage might be threatened by an overzealous prosecutor reacting – or over-reacting – to what he or she believes to be one or another inappropriate depiction in an otherwise evenhanded and well-produced story.

Here’s the good news from the argument: true journalism is not likely to be threatened in this way. 

The Justices set upon the government’s lawyer like a pack of wolves. They appeared considerably more concerned about the breadth of the statute – which could be invoked against a tremendous range of seemingly protected speech – than about the specifics of Stevens’s case. 

The government was not more than three minutes into its presentation when newly-installed Justice Sotomayor went for the throat, asking why Congress felt it needed to pass such a broad law to address such a discrete problem. Government counsel never broke free.

This was followed by a line of questioning from Justices Scalia and Kennedy and Chief Justice Roberts about the government’s assertion that this entire area of speech falls outside of the First Amendment.   Pressed to sum up his justification in one sentence, the government’s lawyer stumbled forward with:

In one sentence, if – if – if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can – they can regulate a depiction, so long as it leaves alternative mechanisms for that expression . . .

But the Justices did not appear convinced that this law targets the underlying conduct so much as this speech, noting that animal cruelty would continue to exist even if these videos were eradicated.

Chief Justice Roberts, who is believed to have a strong aversion to “facial” challenges (i.e., challenges to the overall law as a whole, irrespective of the particular facts of the particular case before the Court), hinted that he might support such a challenge in this case. He seemed concerned that this law is particularly overbroad, dependent on a cobbled-in exception to save it.  Justice Scalia and others were similarly unimpressed, questioning whether the law would apply only to “educational” depictions of bullfighting (if they can somehow be identified and defined) or to other instances in which animals might be “legally” harmed. 

The hypotheticals kept coming. Justice Alito questioned how the law might deal with a re-creation of Roman gladiator fights: would it be saved if the participants dressed in traditional gladiator garb to make it “historical” in nature?   It seemed clear at this point that a majority of the Court was not buying the claim that the law is narrowly drawn to focus in on the laudable, if not compelling, interest of animal cruelty. 

What we didn’t see coming was that the gladiator hypothetical wouldn’t be the most, um, unusual hypothetical of the day . . .

No, Patricia Millet, Stevens’s lawyer, was on the receiving end of that one. She first had to parry Justice Alito, who asked whether it was even permissible for Congress to try to address the problem of “crush videos” with such a law. Barely conceding the point, she argued that such a law would have to: (1) satisfy the rigorous “strict scrutiny” standard applicable to content-based regulation of speech; or (2) be equivalent to the Court’s standard for obscene speech; or (3) truly be addressed and tailored to the underlying acts, not the speech about or depicting those acts. Asked whether the Court could interpret the statute consistently with those standards, she replied that that would require statutory “alchemy” more than statutory “interpretation” (which brought a noticeable chuckle from Justice Scalia). 

But back to that strangest of hypotheticals. In exploring the arguable “overbreadth” of the statute – that is, by looking at possible scenarios in which the statute might be used to prosecute plainly protected speech well beyond the facts of Stevens’s videos – the Court asked whether the law could properly reach a series of hypothetical situations. It was one of these hypotheticals that took us into truly weird territory, as Justice Alito asked how the statute might be applied to a “human sacrifice channel” that offered live pay-per-view coverage of legal human sacrifice that: (a) might be occurring somewhere in the world; (b) is illegal in the United States; but (c) nevertheless enjoys a commercial television market.  (Ms. Millett conceded that an evenhanded application of a narrowly drawn statute was paramount.)

After an hour of questions, answers, and hypotheticals, one thing seemed very clear: the Court was more concerned about where to draw the line in terms of substantial overbreadth than it was with the particulars of this case. It barely discussed the facts of Stevens’s case – or even the law’s application to traditional forms of speech. The word “journalistic” appears only five times in 73 pages of transcript. While we understand the First Amendment is primarily tested on the fringes, the Court spent so much time outside the fringe and into the fanciful that I think we’ll be hard-pressed to find five members of the Court who believe this law can ever be constitutionally applied to real-world speech.

In fact, I’m saying that the Court declares the law unconstitutional by a vote of at least 7-2.

The decision was issued in a case pitting a number of record companies (think BMG, Arista, Bad Boy, Zomba) against the popular LAUNCHcast service. The record companies claimed LAUNCHcast was interactive. The court disagreed. 

The Copyright Act defines an interactive service as one which “enables a member of the public to receive a transmission of a program specifically created for the recipient, or on request, a transmission of a particular sound recording . . . , which is selected by or on behalf of the recipient.”  The parties agreed that LAUNCHcast, in some form, generated a list of songs to be performed based on the initial song or artist choice by the listener.  But was that enough to make it “interactive”? Nope.

The Court engaged in a searching review of the factors leading to the creation of the interactivity/non-interactivity distinction in the Digital Performance Right in Sound Recordings Act of 1995 and its refinement in the 1998 Digital Millennium Copyright Act – two seminal laws intended to protect sound recording copyright holders. The competing goals of the law are: (1) to increase the number of distribution channels for music and (2) to discourage rampant copying of music without compensation to the copyright holder.

The Court concluded that a major consideration – perhaps the major consideration – is the ability of a digital listener to capture and save a high quality copy of a sound recording with little to no effort if he or she knows it is about to be played. That is, if a listener can manipulate the webcast service in a way which permits him/her to snag his/her own digital copy of a song of his/her choosing, then it’s likely an “interactive” service. Stated another way, the Court focused on whether the webcasting service offers listeners an opportunity to steal music they would otherwise purchase.

Analytically, the Court reviewed factors which the Copyright Office had deemed relevant over the years. Although asked to clarify the “interactive/non-interactive” distinction, the Copyright Office has declined to take the bait, explaining that technology changes too rapidly to allow for a hard and fast rule. But it did indicate that some level of listener influence is permitted within the definition of non-interactive. In particular, the Copyright Office had even indicated that LAUNCHcast itself would qualify as “non-interactive”.

How exactly does LAUNCHcast work? The short strokes are that users:  

• Must log in with a unique username/password;
• Must enter basic information about preferences unrelated to music;
• Must enter information regarding the user's favorite artists;
• Must identify the user's favorite musical genres and rating them in order of preference; and
• Are able to rate songs or artists they hear (or even instantly purchase a song they like).

That final step (i.e., the rating process) continually refines and changes the individual stream offered to the individual listener.  Based on all these preferences and refinements, the LAUNCHcast software creates a playlist of 50 songs every time the listener logs on. The listener has no idea what those songs will be or which artists will be featured.

There is actually much more to the software, involving ratios, quotients and other mathematical formulas that aid in the refinement and ordering of the playlists. The Court of Appeals spent a good ten pages describing the process in impressive detail. Though we’re glossing over the particulars, we’ll note that it is this very level of detail which led the Court to conclude that LAUNCHcast is not an interactive service.  As the Court saw it, the LAUNCHcast system does not allow a user either to pick a song and then immediately hear that song, or to predict whether (much less when) any particular song may be played, and or (most definitely) to engage in music piracy. (Indeed, the instant-purchase function probably promotes the legal purchase of copyrighted music).

While LAUNCHcast may be more complex than some other few music services, the Court’s discussion does highlight some key characteristics which webcasters can take note of in determining whether their services may be deemed interactive: 

• In defining “interactive”, Congress “intended to include bodies of pre-packaged material, such as groups of songs or playlists specifically created for the user”;
• About 60 percent of the various factors used in the LAUNCHcast programming to create and modify a user’s playlist are out of the listener’s control (the only absolutely certain control available to a user is the “zero” rating: by giving a song a “zero” rating, the user guarantees that he or she will not hear it again);
• A new playlist of 50 songs is created every time the listener logs in, which prevents any ability to predict what will be heard during any particular session.

Emphasizing the limited involvement of the listener in the LAUNCHcast song selection process, the Court contrasted listening to LAUNCHcast to listening to radio back in the halcyon days. According to the Court, LAUNCHcast listeners do not enjoy even the “limited predictability that once graced the AM airwaves on weekends in America when ‘special requests’ graced lovestruck adolescents’ attempts to communicate their feelings to ‘that special friend’”. Ah yes, the good old days. But the Court’s comparison prompts this reminder to broadcasters who stream their over-the-air programming: be careful about inviting “special requests” from listeners, since granting such requests could lead the webcasting element of your operation to be deemed “interactive”, with all that that entails.

The Court had occasion to review the FCC’s first revised approach back in 2001, at which point the Court expressed concern that the Commission hadn’t adequately addressed all relevant considerations – including, in particular, the increase in direct satellite broadcast (DBS) subscribership. (The Court at that point also questioned the constitutionality of the cap, but since the matter was being shipped back to the FCC for further deliberation, no final determination was made on that score.) In 1992, DBS had accounted for a minuscule share of video subscribers (in the Court’s words, DBS providers were “bit players” then). In the intervening years DBS has expanded considerably – today, it accounts for one-third of all subscribers.   Unsatisfied with the FCC’s initial revised approach, in 2001 the Court shipped the matter back to the Commission for further consideration. The Court specifically directed the agency to consider the effect of DBS on the ability of cable operators to “determine the economic fate” of programming networks.

The Commission dutifully took the case back. In 2008, after several years of proceedings, the Commission again reached into its magic hat, again intoned some mathematical incantations, and, lo and behold, again came up with a 30% cap!

Representatives of the cable industry again brought the matter back to the Court. And again the Court wasn’t satisfied with the Commission’s analysis. So much so, in fact, that in its August 28 opinion, the Court vacated the 30% cap, declaring it to be arbitrary and capricious. As a result, for all practical purposes, the cap no longer exists.

The Commission tried to justify its failure to figure in the competitive impact of DBS by observing that it would be difficult to do so. That argument went nowhere with the Court. Referring to the Commission’s “dereliction” as “particularly egregious”, the Court concluded that the FCC “either cannot or will not fully incorporate the competitive impact of DBS and fiber optic companies” into its calculations. Since the Court had specifically instructed the Commission, back in 2001, to consider DBS impact, the agency’s failure to do so appears to have been especially galling to the Court.

The FCC 2007 decision to cling, rigor mortis-like, to the 30% cap was reached on a 3-2 vote, with the two then-Republican Commissioners (McDowell and Tate) dissenting. It will be very interesting to see how the new Democratic Commission reacts to the Court’s stinging rebuke.

The RFA is a legacy of the Reagan era. It requires federal agencies to analyze the impact of new rules on small businesses.   The theory is that, by forcing an agency to review and articulate the impact of its rules on the Little Guys, the RFA may prevent, or at least discourage, unnecessarily burdensome regulations.

As a practical matter, though, the RFA provides little help in most situations. The agency is ordinarily accorded substantial deference by the courts. That’s even truer when it comes to compliance with the RFA’s requirements, which the D.C. Circuit has characterized as “purely procedural” – and by that the court seems to mean that, as long as the FCC jumps through the limited number of hoops set out in the RFA, the FCC can expect to insulate itself from pretty much any RFA-based appeal. (While the Court did send the 2003 number portability order back to the Commission on RFA grounds, that was because the FCC had declined to perform any RFA analysis at all. The FCC said it thought that its 2003 order was exempt from the RFA. Nice try.) 

In its most recent decision reviewing the FCC’s three-years-in-the-making RFA analysis, the Court had no trouble concluding that that analysis passed muster. The Court confirmed that the FCC touched all the bases required by the statute, and that its analysis was neither arbitrary nor capricious. So even though small carriers will be subjected to significantly increased costs as a result of the number portability system imposed by the Commission – a result which the RFA was intended to discourage, if possible – that system has now survived judicial review.

Having won this one, the Commission may be emboldened to increase the regulatory load on wireline carriers. On May 13, the FCC is scheduled to consider a possible reduction in the maximum allowable time for porting numbers – a reduction which would likely be burdensome for wireline carriers. Since the Court did not have any problem with the new burdens imposed by its prior intermodal number portability requirements, the Commission may reasonably figure that similar, or even greater, burdens can be heaped on without fear of reversal. We will likely see that come into play shortly.

But the Court didn’t let the Commission off scot free. In rejecting the argument that porting imposes disproportionate transport costs on small carriers, the Court explicitly relied on the FCC’s assurances that it will be addressing transport costs more broadly in the long-pending ICC proceeding.  This may put some heat on the FCC to get that proceeding going again, particularly because the Court pointedly observed that “[w]e assume the Commission will complete its work [on ICC] soon. If not, an appropriate party may of course file a petition for mandamus.”  Essentially, the Court was inviting parties to seek “mandamus”, i.e., a special writ by which parties may seek relief from “unreasonable delay” by an agency. Such an invitation is music to the ears of parties who would otherwise have to cool their heels, waiting for years for the FCC to act. As recently as 2008, a party sought and obtained from this very Court, an order requiring the FCC to rule on ICC for ISP-bound traffic.

So while the FCC may currently lack the set of permanent Commissioners needed to properly address the ICC proceeding (a proceeding that has dragged on for over eight years already), the Court has clearly signaled that it is running out of patience. Optimists might figure that the FCC may feel the need to take up the ICC proceeding even before the new Commissioners are seated.  However, if history is any predictor, we suspect that the FCC will have to be further pushed into action, kicking and screaming.

Majority Opinion (Justice Scalia, joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy)

Justice Scalia wrote the Court’s majority opinion. He commenced by tracing the history of the Commission’s application of the indecency statute (18 U.S.C. §1464) from its start in the 1975 Pacifica decision (addressing a broadcast of George Carlin’s famous “Filthy Words” monologue, a ruling that eventually ended up in the 1978 Supreme Court decision in F.C.C. v. Pacifica Foundation).  

 (We won’t go into all that legal history here. If you’re interested, contact our colleague Joe Di Scipio, who has put together a way cool PowerPoint presentation tracing the recent development of indecency regulation.)

Scalia’s majority opinion held that the APA does not require an agency to engage in a “heightened review” of its prior policy decisions before reversing course on those policies. Instead, according to Scalia, an agency must only (1) acknowledge that it is changing its policies and (2) show good reasons for the change. (In Scalia’s view, the Second Circuit had improperly required such “heightened review”.)  Justice Scalia also flatly smacked down any notion that heightened review is required when the change affects a constitutional right, as suggested by Fox’s counsel during oral argument.

Applying this new, minimal standard of accountability, Scalia found that the Commission had not acted in an arbitrary or capricious manner.  The Commission’s forthright acknowledgment that it was “break[ing] new ground”, combined with an equally forthright disavowal of earlier, contrary, decisions as “no longer good law”, was sufficient, especially where the FCC hadn’t imposed an actual penalty. He further found that the Commission’s change – at least on a theory that allowing fleeting utterances would lead to more fleeting utterances – was perfectly rational because technology to bleep out these words is widely available. 

The final section of the Scalia opinion garnered the support of only three other Justices, as Justice Kennedy did not join this section. In that section Scalia criticized the opinions of his dissenting colleagues.  He disagreed with Justice Breyer’s dissenting sentiment that the Court must engage in increased oversight of an independent agency because these agencies are “less political”.  According to Scalia, an independent agency endures a different kind of oversight, with Congressional oversight replacing Presidential oversight.  He pointed out that the FCC’s change in its indecency enforcement was directly traceable to Congressional pressure.

Scalia also criticized Breyer’s fear that small broadcasters will be unduly burdened by this decision because they do not have the means to purchase and employ technology to prevent the broadcast of fleeting expletives.  The Trenton-born, Queens-raised, primarily metropolis-living Scalia placed his faith in the goodness of small town folk who will know how to check their tongues during live television broadcasts.  As Scalia sees it, absent the threat of the utterance of a fleeting expletive in locally-produced programming, small market broadcasters really face no enforcement dangers at all, because the Commission has repeatedly said it will not act on utterances emanating from live breaking news events in national programming. 

And, finally, the constitutionality of the FCC’s indecency policy?  Scalia simply didn’t go there, other than to say that the issue could (and likely would) be raised on remand to the Second Circuit.

Concurring Opinion (Justice Thomas)

Justice Thomas concurred as only Thomas could:  by raising an issue that nobody really wanted to discuss, questioning the continuing validity of the “scarcity doctrine” (the  underlying rationale for the FCC’s regulation of broadcast content).  

He found this continued restriction on the First Amendment right of broadcasters troubling for two reasons: (1) the Court adopted in 1969 in Red Lion Broadcasting Co. v. F.C.C. and reaffirmed in Pacifica a rule that had no basis in the original text of the constitutional (because, of course, little boxes electronically providing music, news and other information were not known to the Founding Fathers); and (2) even if one assumes that the scarcity of physical spectrum does justify some regulation of broadcasters’ content, the availability of multiple electronic information sources – digital television/cable television/satellite television/the Internet/iPod/and God-knows-what – means there’s simply no scarcity anymore.  Thomas’s opinion invited reconsideration of Red Lion and Pacifica (and, one might argue, previewed what would be a key fifth vote in favor of striking down regulation of indecent content as violating of the First Amendment). 

 Concurring Opinion (Justice Kennedy)

Justice Kennedy joined all but one part of the majority opinion. He expressed some sympathy for Breyer’s view that heightened review of an agency’s decision is necessary when a longstanding rule or policy is being changed.  In Kennedy’s words, the necessary question is “whether an agency’s reasons for the change, when viewed in light of the data available to it, and when informed by the experience and expertise of the agency, suffice to demonstrate that the new policy rests on principles that are rational, neutral and in accord with the agency's proper understanding of its authority”.  Where there is an established body of evidence supporting an agency’s policy, any change in that policy must be overwhelmingly supported by new evidence which shows why circumstances have changed.

Kennedy found that FCC met this standard (whether or not that standard was “heightened”).  While the FCC’s reasons for the change in its fleeting expletive policy were not, in Kennedy’s view, so “precise, detailed, or elaborate as to be a model for agency explanation”, they nonetheless “were the sort of reasons an agency may consider and act upon.”

What’s particularly interesting is that, while Kennedy may have won the battle for the FCC on this particular application of the indecency rules, he may end up winning the war against future agency actions of this ilk.  If one adds Justice Kennedy’s vote to the four dissenting votes, we might see the Court apply the higher standard in the next case of agency deviation from a prior policy position. 

Dissenting Opinion (Justice Stevens)

In addition to joining Breyer’s dissent, Justice Stevens wrote separately to emphasize two points.  First, he disagreed with the majority’s assessment that the FCC need not fully explain a departure from its prior interpretation of the indecency rules.  Second, the Pacifica decision was not as broad and sweeping as the majority thinks it was (Stevens, of anyone on the current Court, would be the one to know: he is not only the sole current member who was on the Court in 1978, but he wrote the majority opinion in Pacifica).  

His primary quarrel with Scalia regarded the extent of the Court’s holding in Pacifica.  He interpreted Scalia as believing that a proper interpretation of the Pacifica decision would treat as “indecent” any expletive that has a sexual or excretory origin.  Justice Stevens reemphasized his view of the very limited nature of Pacifica: that it related only to Carlin’s use of the words as broadcast in the middle of the day when children were likely to be in the radio listening audience.  That limited holding was supposed to be the outer limit of the FCC’s indecency rules.  And it was... for nearly 30 years.  Justice Stevens could not square the Pacifica holding and FCC’s subsequent interpretation with this Court’s approval of an FCC action that removes any distinction between the use of these words in a sexual or excretory fashion and the use of the same words in a non-sexual, non-excretory, clearly-just-a-profanity-for-the-sake-of-profanity fashion.

Dissenting Opinion (Justice Ginsburg)

Also joining Breyer’s dissent, Justice Ginsburg wrote to chastise the Court for avoiding the First Amendment issues presented in this case. Her short, but in our minds, sweet, opinion, questioned whether punishment for these fleeting expletives would be consistent with the First Amendment.  Again, viewing this in conjunction with the other dissenters and Justice Thomas’s concurring opinion, one might wonder whether the indecency regulations will survive for the long haul.  

Dissenting Opinion (Justice Breyer, joined by Justices Stevens, Souter and Ginsburg)

Justice Breyer had problems with both the legal standard outlined by the majority and the way in which the FCC justified its departure from the prior indecency decisions.

His core belief was that, when changing a policy position, an independent agency should be held to a higher standard of review than when it is instituting a new policy or rule. Departing from an established rule requires proper explanation of both the rationale for the new rule and the reasons for departing from the established rule.  Simply put: an agency must be able to answer the question “Why did you change?” 

The FCC did not – and could not – answer this question.  When it abandoned its previous, largely “hands-off-fleeting-expletives” policy, it changed a 25-year-old policy with little to no explanation for its actions. What little explanation the FCC offered was lacking in basis.  Its entire explanation consisted of two sentences amounting to nothing more in effect than “we think our new approach is consistent with Pacifica”. 

As discussed above, Breyer feared the impact of the change on small broadcasters, who may not be able to afford and employ the technology cited by the majority as a relatively easy means of avoiding liability for the broadcast of fleeting expletives. The adverse impact is especially disturbing given the special importance of local broadcasting and its already-existing financial troubles.  Breyer supported these claims with a detailed, facts-and-figures type inquiry he would demand of the FCC or any other independent agency.

Finally, the dissent attacked the majority’s constitutional avoidance argument, saying that the doctrine has no place where an agency engages in a constitutionally suspect application of its rules.  He would remand the case to the FCC and require the agency to explain its actions in light of the First Amendment concerns that are clearly applicable.

So there you have it:  six opinions and 72 pages, in which the Court upheld the FCC's radical change in policy with regard to the broadcast of "fleeting expletives", but seemed to signal the possibility of greater oversight of future agency reversals of policy positions - and almost invited broadcasters to challenge the indecency rules and other content -based regulations on First Amendment grounds.

(Justices' photos from the Collection of the Supreme Court of the United States)

Indecency

As most everybody probably knows, this case involved the FCC’s determination that Fox had broadcast indecency during two awards shows. In one, Cher commented, “I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So  fuck ‘em”. In the other, Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.”

The Commission had historically declined to go after the occasional, single use of such words as “fuck” and “shit”, uses which are referred to familiarly as “fleeting expletives”. Here, however, the Commission changed course and held that Fox’s broadcast of fleeting expletives was a violation. Fox appealed the ruling, raising two basic arguments. First, according to Fox, the FCC’s about-face on fleeting expletives was arbitrary and capricious, in violation of the Administrative Procedure Act (APA) – that is, the FCC failed to explain adequately why it was abandoning its previous policy. Second, Fox argued that even if the action survived the APA attack, the FCC’s new policy violates the First Amendment.

The Second Circuit in New York agreed with both of Fox’s arguments. But, because courts generally shy away from making constitutional determinations if they don’t have to – for the same reasons that you don’t undergo brain surgery if your problem can be effectively treated with less invasive and dangerous methods – the Second Circuit’s actual ruling was limited to the APA ground. That didn’t stop the Second Circuit, however, from including an extended discussion – referred to as “dicta” – in which it made clear that the Second Circuit was very skeptical of the constitutionality of the FCC’s new approach.

The Second Circuit decision effectively stopped the Commission’s indecency juggernaut in its tracks. The FCC asked the Supremes to review the case, and the Supremes agreed.

In his majority opinion, Justice Scalia held that, contrary to the Second Circuit’s view, the FCC did explain its change in policies, at least enough to satisfy the APA. Writing for himself, Chief Justice Roberts, and Justices Thomas, Kennedy and Alito, Scalia concluded that the Commission had recognized that it was shifting course and it had articulated sufficient reasons why it believed the new course to better. So as a matter of administrative law, the new fleeting expletives policy was properly adopted. (Of course, the other members of the Court – Justices Stevens, Ginsburg, Souter and Breyer – did not agree, but without that crucial fifth vote, all they could do was issue dissenting opinions.) Since the Second Circuit’s decision was limited to the APA/administrative law issue, the FCC won and the indecency policy lives on.

At least for a while.

Consistently with the doctrine of avoiding constitutional questions if at all possible, neither Scalia nor any other Justice (there were a total of four additional concurring and/or dissenting opinions) addressed the constitutionality of the new fleeting expletives policy. While the Second Circuit opinion had included the dicta discussion on that point, the Supreme Court recognized that dicta has no actual legal effect, so the Supreme Court could simply ignore it.

As a result, the case now goes back to the Second Circuit for “further proceedings consistent with [the Supreme Court’s] opinion.”

But, thanks to the dicta portion of the Second Circuit’s decision, we all have a pretty good idea of what is likely to happen when the case toddles on back there: presumably, Fox will re-present its constitutional arguments and, if the Second Circuit still sees those arguments the way its saw them in 2008, we should be seeing a new Second Circuit decision declaring the FCC’s indecency policy to be unconstitutional. If and when that happens, we can expect the Commission to seek review, again, by the Supreme Court.

So the Supremes’ decision in Fox does little to alter the landscape in the short term. While the Commission may feel fortified by Scalia’s decision – and Acting Chairman Copps wasted no time in crowing about it – the fact is that the fleeting expletives policy is still not out of the woods by a long shot. Getting rid of the APA arguments merely clears the path toward some final resolution of the constitutional issues, possibly in the next couple of years.

If and when that happens, it’s reasonable to assume that the Second Circuit will stick to the position (outlined in its earlier dicta) that the policy can’t survive First Amendment analysis. Such a ruling could bring the case back to the Supremes. Interestingly, in his concurring opinion, Thomas expresses the view that the “scarcity rationale” – i.e., the traditional justification for governmental regulation of broadcast content – may no longer have any validity (if it ever had any validity at all – according to Thomas, the primary cases in which that rationale was articulated by the Court “were unconvincing when they were issued.”). Additionally, while Kennedy technically joined Scalia’s opinion, his own separate opinion oddly seems to lean more toward Breyer’s dissent than Scalia’s majority. 

As a result, there is at least some reason to speculate that the Court’s decision on the APA ground may not necessarily provide any reliable indication of how the Court would rule on the far more important constitutional ground.

At this point, though, we are off in the land of speculation. Lots of things could happen between now and whenever the constitutional argument might make it back to the Supremes. Still, while the reversal of the Second Circuit’s APA decision may be disappointing to many, there are enough glimmers of hope on the constitutional side that the immediate impact of the Supreme Court’s decision on indecency regulation can be shrugged off as very limited.

A major APA shift

The same cannot be said of the impact of Scalia’s APA analysis on FCC regulatory activities as a whole. And that’s the real story in the Supreme Court’s decision.

As noted above, the APA requires that the actions of federal agencies, including the FCC, not be arbitrary or capricious. More than 25 years ago, the Supreme Court interpreted that requirement, holding that an agency must “examine the relevant data and articulate a satisfactory explanation” for actions it takes. Since then, numerous courts of appeals have read that standard, in the context of changes in agency policy, to require that the agency also explain why the reasons underlying its original policy are no longer dispositive and why the new policy is preferable to the policy being abandoned. That gloss on the Supreme Court’s 1983 decision served to assure a measure of stability in agency policies, since the agency had to be able to explain why a new policy was preferable.

But Scalia’s majority opinion in Fox throws that gloss out the window.  The Second Circuit’s rationale for the APA portion of its decision was based to a significant degree on the fact that the Commission failed to explain why its old fleeting expletives policy was no longer valid. The Second Circuit’s approach was consistent with case law developed over more than a quarter of a century.  Characterizing that approach (and the lower courts’ consistent interpretation of the APA on which it was based) as imposing a “heightened standard” or a “more searching review”, Scalia declares that that interpretation is, well, just wrong. According to Scalia, when an agency decides to change an established policy,

it suffices that the new policy is permissible under the [agency’s governing] statute, that there are good reasons for it, and that the agency believes it to be better. [emphasis in original]

In other words, the Commission can change its policies without necessarily explaining why the reasons which underlay its to-be-abandoned policy are no longer operative or persuasive. Instead, the Commission can say simply “we prefer the new policy”, and that may satisfy the APA.

This is a huge and ominous change which accords the Commission potentially vast latitude to engage in largely unexplained reversals of policy. This new take on the APA’s requirements opens the door for regulatory zigging and zagging of all sorts in all areas of FCC activity. And this new take is, as of the release of the Supreme Court’s Fox opinion, the law of the land. No need to await any decisions on remand or further review by any court – Scalia’s pronouncement is now the way it is.

So the Fox decision does have sweeping effect, but not in the indecency area where we all might have expected it. The indecency aspect of the ruling doesn’t effect any fundamental changes. But on the APA side, its repercussions could be profound and long-lasting for everyone subject to FCC regulation.

The American Radio Relay League (ARRL) is an association of amateur radio operators dating back to 1914, with a long record of looking out for amateurs' interests before the FCC.  It fought BPL throughout the proceeding with a certain amount of rhetoric, but also with reasoned analysis and empirical data.  ARRL mobilized its individual members, who participated by the thousands, though by and large with a lot less reason and data than their association.  (There were a dozen or so notable exceptions.)  For some amateurs the battle against BPL took on the fervor of a religious crusade.

And indeed, the amateurs won a substantial victory.  Although the FCC authorized BPL in the amateur bands, it required BPL operators to undertake unprecedented measures to cure any interference they cause.  But the amateurs wanted more.  They wanted BPL completely off their frequencies.  When the FCC refused to go along, ARRL went to court.

The Part 15 Problem

BPL devices, both on the power poles and in customers' homes, are treated as "unlicensed devices" under Part 15 of the FCC rules.  The same is true of all other digital products, such as laptops and iPods, and also a host of low-power transmitters such as Wi-Fi, Bluetooth, and cordless phones.  All such unlicensed devices are regulated as to stray radio emissions, among other properties.  Manufacturers and importers must establish compliance before marketing.  Once they pass the required tests, the devices can be purchased and used by anyone without an FCC license.

There has long been some tension between the amateurs and the Part 15 industry.  Most of the higher-powered Part 15 operations occur in bands shared with the amateurs.  In some of these bands, Part 15 power can exceed one Watt -- 10 million times higher than the limit elsewhere in the spectrum.  As Part 15 devices proliferate, the amateurs are exposed to increasing risks of interference.  The amateurs routinely oppose expansion of Part 15 in the shared bands.  Starting about fifteen years ago, those oppositions began including a stock footnote suggesting that Part 15 might be unlawful under Section 301 of the Communications Act.  That section can be read to say that any device emitting radio waves must be licensed by the FCC.  If that were the correct reading, then the statutory language would leave no room for unlicensed devices.

In 2001, the FCC approved one more in a string of Part 15 power increases in shared amateur bands.  ARRL sought reconsideration, and this time argued head-on that the FCC's action violated Section 301.  The FCC's reasoning went something like this:

1.    We think Section 301 requires licensing only for devices that actually cause interference.  Harmless devices like laptops and PDAs and musical greeting cards are exempt -- and would be impossible to license anyway.  (ARRL agreed.)

2.    And we, the FCC, get to decide which devices cause interference.  (ARRL agreed again.)

3.    We now decide those higher-power Part 15 devices you oppose are non-interfering.  That makes them lawful under Section 301.

ARRL promptly filed an appeal.  But it withdrew the appeal shortly afterward, giving no reason for the change of heart.  Observers at the time thought ARRL, to prevail, would need a case having better facts.

From ARRL's point of view, the ideal set-up for a challenge would have the FCC authorizing a Part 15 device that the FCC itself conceded could interfere with amateur radio.  But that seemed unlikely, to say the least.  The FCC had always been careful about limiting Part 15 emissions to make interference to other users a very remote possibility.  But it took only three years for the planets to align.  In the BPL rules, the FCC seemed to give ARRL everything it needed to contest Part 15.

Mobile vs. Fixed

There are two kinds of amateur stations.  Fixed stations are typically installed in a building such as a residence or club; mobile stations are usually in a car.  Fixed stations tend to have better antennas and receivers, and so can receive weaker signals.  That makes the fixed stations more sensitive to very weak levels of interference.

The FCC at first adopted the same BPL rules as to fixed and mobile amateur users.  If an amateur reports interference, the BPL operator must "notch" (turn down) the signal on that frequency by either 90% or 99%, depending on the band.  If that does not resolve the problem, the operator has to completely shut off the offending BPL unit.  In addition, the BPL industry must maintain a publicly accessible database showing the frequencies in use and details on the equipment at every location nationwide, with phone numbers and email addresses to report interference.  All of this added up to a major victory for the amateurs, far beyond anything else in Part 15.

In a reconsideration order, the FCC made a small but significant change.  The rules remained the same for fixed amateur users.  But on a complaint from a mobile amateur, the BPL operator must only effect the 90 or 99% notch; it need not turn off the unit.  The FCC acknowledged that intermittent interference might remain after notching, but it absolved the BPL operator of further obligations.  The mobile user could escape the interference by relocating, the FCC noted, and besides, the public benefits of BPL justified "a small increase in instances of disruptions" to mobile communications.

No party had asked for this particular ruling.  But a look through the 8,000 filed comments turns up a possible motivation.  A few of the more zealous amateurs had said they planned to drive around looking for interference, report it, and thus shut down BPL "one pole at a time."  Eliminating the shut-down requirement as to mobile users ended this threat to BPL.  But it stirred outrage in the amateur community.

ARRL thought it finally had its case.  The FCC had admitted possible interference from a Part 15 device.  ARRL went to the U.S. Court of Appeals for the D.C. Circuit.

Is Part 15 Lawful?

ARRL's central argument turned on the Section 301 licensing requirement.  If a device can cause interference, said ARRL, it must be licensed, according to prior FCC rulings, and therefore is ineligible for authorization under Part 15.  At the very least, ARRL insisted, the FCC should be required to explain its departure from precedent on this point.

The FCC answered by saying, yes, while BPL may cause minor and intermittent interference, that does not constitute harmful interference.  Because Part 15 must protect amateur radio only against harmful interference, BPL is therefore proper under Section 301.

(The FCC could have made a different argument.  Another rule, much older than BPL, requires any Part 15 device to shut down if it causes harmful interference to any licensed user.  If that rule applies to BPL and mobile amateurs -- and there is no reason to think otherwise -- then BPL complies with the long-standing, non-interference interpretation of Section 301.  But the FCC did not raise this point.)

The Part 15 community was concerned about the case.  Any Part 15 device is a potential source of interference -- even harmful interference -- under some conditions.  Wi-Fi, for example, sometimes interferes with amateur radio.  A court ruling that barred the FCC from authorizing arguably interference-causing devices under Part 15 could have thrown the legal status of the industry into doubt.

But the court accepted the views of the FCC that BPL would not cause harmful interference to mobile amateurs.  This means the missing shut-down requirement would never have to be invoked, so its absence from the rules does not run afoul of Section 301.

The FCC must realize that it had a close brush.  Going forward, it is likely to be more careful in framing its rules to ensure that licensed devices are well protected from Part 15 interference.  And yet, as the role of Part 15 in the economy continues to grow, Part 15 becomes increasingly hard to contain.

Other Issues

While affirming the FCC on the Section 301 issue, the court found fault with other two aspects of the BPL decision.

First:  Among the many technical studies that played a part in the proceeding were five carried out by the FCC itself.  The FCC placed these in the public docket, but blacked out some passages it said were "preliminary or partial results or staff opinions."  It claimed not to have relied on those passages in reaching its conclusions.  And ordinarily an agency need not share its internal deliberations with the public.  But the court, having reviewed the missing material, suspected it might contain evidence that could call the rules into question.  For that reason it ordered the FCC to publish the material and to receive public comment on it.

The other ARRL victory (at least for the time being) concerns an "extrapolation factor" that the FCC carried over from earlier Part 15 rules.  At frequencies below 30 MHz, the permissible emissions are specified at a distance of 30 meters, or almost 100 feet.  That requires an inconveniently large test set-up.  The FCC allows measurements at shorter distances, which are then corrected to 30 meters by a factor of 40 dB/decade.  Translating:  for every factor of ten change in distance, the actual measured values are divided by 10,000.  For example, measurements taken at 3 meters can be 10,000 times higher than the published limit at 30 meters, and still comply.

ARRL insisted throughout the proceeding that 40 dB/decade is too high:  that the factor should be 20 dB/decade, or division by 100 for each tenfold increase in distance.  Using ARRL's figure, a BPL device measured at 3 meters would be allowed only 1/100 of the emissions it could have under the FCC's approach.

Ordinarily the courts tend to side with the agency on a complex technical issue.  Here, however, the court found that the mathematical models used to justify the 40 dB/decade value relied on measurements from other, non-BPL technologies that might not accurately reflect BPL.  The court also wondered why the FCC had disregarded British studies, placed in the record by ARRL, showing that 20 dB/decade was closer to the mark.  The court did not invalidate the 40 dB/decade factor, but it ordered the FCC either to justify it in terms of the record, including the British studies, or else to pick a different number and justify that one.

The last issue went to the FCC.  Equipment made by one leading BPL vendor uses only the frequency band 30-50 MHz, where the amateurs have no operations.  If one vendor could do it, ARRL reasoned, so could all of them.  It asked the FCC to limit BPL to just those frequencies, and when the FCC refused, complained to the court that the FCC had brushed off a good idea.  But the court found enough reasoning in the FCC's order to support the rejection.

Back to Work

The next step in the process will be a request for comments from the FCC, certainly on the redacted studies, and probably on the 40 dB/decade issue as well.  Considering the great interest in the original BPL proceeding, the FCC is bracing itself for this new round, which promises to be at least as contentious.  The amateur community is unlikely to pass up another opportunity to express its displeasure with BPL.