08-0841-ag (L)
ABC, Inc., et al. v. Federal Communications Commission

                            UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of January, two thousand eleven.

PRESENT:    RICHARD C. WESLEY,
            DEBRA A. LIVINGSTON,
                        Circuit Judges,
            JANE A. RESTANI,*
                        Judge.
______________________________
                                                             Nos. 08-0841-ag (Lead)
                                                                  08-1424-ag (Con)
                                                                  08-1781-ag (Con)
                                                                  08-1966-ag (Con)

ABC, INC., KTRK TELEVISION , INC., WLS TELEVISION , INC., CITADEL COMMUNICATIONS, LLC,
WKRN, G.P., YOUNG BROADCASTING OF GREEN BAY , INC., WKOW TELEVISION , INC., WSIL-
TV, INC., ABC TELEVISION AFFILIATES ASSOCIATION , CEDAR RAPIDS TELEVISION COMPANY ,
CENTEX TELEVISION LIMITED PARTNERSHIP, CHANNEL 12 OF BEAUMONT INCORPORATED ,
DUHAMEL BROADCASTING ENTERPRISES, GRAY TELEVISION LICENSE, INCORPORATED , KATC
COMMUNICATIONS, INCORPORATED , KATV LLC, KDNL LICENSEE LLC, KETV HEARST -
ARGYLE TELEVISION INCORPORATED , KLTV/KTRE LICENSE SUBSIDIARY LLC, KSTP-TV LLC,
KSWO TELEVISION COMPANY INCORPORATED , KTBS INCORPORATED , KTUL LLC, KVUE
TELEVISION INCORPORATED , MCGRAW -HILL BROADCASTING COMPANY INCORPORATED , MEDIA
GENERAL COMMUNICATIONS HOLDINGS LLC, MISSION BROADCASTING INCORPORATED ,
MISSISSIPPI BROADCASTING PARTNERS, NEW YORK TIMES MANAGEMENT SERVICES, NEXSTAR


         *
          The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
BROADCASTING INCORPORATED , NPG OF TEXAS, L.P., OHIO /OKLAHOMA HEARST -ARGYLE
TELEVISION INC., PIEDMONT TELEVISION OF HUNTSVILLE LICENSE LLC, PIEDMONT TELEVISION
OF SPRINGFIELD LICENSE LLC, POLLACK /BELZ COMMUNICATION COMPANY , INC ., POST -
NEWSWEEK STATIONS SAN ANTONIO INC., SCRIPPS HOWARD BROADCASTING CO ., SOUTHERN
BROADCASTING INC., TENNESSEE BROADCASTING PARTNERS, TRIBUNE TELEVISION NEW
ORLEANS INC., WAPT HEARST -ARGYLE TELEVISION INC., WDIO-TV LLC, WEAR LICENSEE
LLC, WFAA-TV INC., WISN HEARST -ARGYLE TELEVISION INC.,
                           Petitioners,

             v.

FEDERAL COMMUNICATIONS COMMISSION , UNITED STATES OF AMERICA ,
                        Respondents,

FOX TELEVISION STATIONS, INC., NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO ., CBS
BROADCASTING INC.,
                           Intervenors.
______________________________

FOR PETITIONERS:          SETH P. WAXMAN (Paul R.Q. Wolfson, Jack N. Goodman,
                          Daniel S. Volchok, and Micah S. Myers, on the brief), Wilmer
                          Cutler Pickering Hale and Dorr LLP, Washington, DC; John W.
                          Zucker, Alan N. Braverman, and Susan L. Fox, ABC, Inc., New
                          York, NY, for Petitioners ABC, Inc., KTRK Television, Inc., and
                          WLS Television, Inc.

                          Wade H. Hargrove, Mark J. Prak, and David Kushner (Stephen
                          Hartzell and Julia Ambrose, on the brief), Brooks, Pierce,
                          McLendon, Humphrey & Leonard, LLP, Raleigh, NC, for
                          Petitioners Citadel Communications, LLC, WKRN, G.P., Young
                          Broadcasting of Green Bay, Inc., WKOW Television Inc., WSIL-
                          TV, Inc., ABC Television Affiliates Association, Cedar Rapids
                          Television Company, Centex Television Limited Partnership,
                          Channel 12 of Beaumont Incorporated, Duhamel Broadcasting
                          Enterprises, Gray Television License, Incorporated, KATC
                          Communications, Incorporated, KATV LLC, KDNL Licensee
                          LLC, KETV Hearst-Argyle Television Incorporated, KLTV/KTRE
                          License Subsidiary LLC, KSTP-TV LLC, KSWO Television
                          Company Incorporated, KTBS Incorporated, KTUL LLC, KVUE
                          Television Incorporated, McGraw-Hill Broadcasting Company
                          Incorporated, Media General Communications Holdings LLC,
                          Mission Broadcasting Incorporated, Mississippi Broadcasting
                          Partners, New York Times Management Services, Nexstar


                                           2
                             Broadcasting Incorporated, NPG of Texas, L.P., Ohio/Oklahoma
                             Hearst-Argyle Television Inc., Piedmont Television of Huntsville
                             License LLC, Piedmont Television of Springfield License LLC,
                             Pollack/Belz Communication Company, Inc., Post-Newsweek
                             Stations San Antonio Inc., Scripps Howard Broadcasting Co.,
                             Southern Broadcasting Inc., Tennessee Broadcasting Partners,
                             Tribune Television New Orleans Inc., WAPT Hearst-Argyle
                             Television Inc., WDIO-TV LLC, WEAR Licensee LLC, WFAA-
                             TV Inc., and WISN Hearst-Argyle Television Inc.

                             Andrew J. Schwartzman and Parul P. Desai, Media Access Project,
                             Washington, DC, for Amici Curiae Center for Creative Voices in
                             Media and Future of Music Coalition, in support of Petitioners.

FOR RESPONDENTS:             AUSTIN C. SCHLICK, General Counsel,** (Jacob M. Lewis,
                             Acting Deputy General Counsel, Nadan M. Joshi, Counsel, on the
                             brief), Federal Communications Commission, Washington, DC, for
                             Respondent Federal Communications Commission.

                             Tony West, Assistant Attorney General,*** (Thomas M. Bondy and
                             Anne Murphy, on the brief), U.S. Department of Justice, Civil
                             Division, Washington, DC, for Respondent United States of
                             America.

                             Thomas B. North, Law Office of Thomas B. North, St. Ignace, MI,
                             for Amicus Curiae Decency Enforcement Center for Television, in
                             support of Respondents.

                             Robert W. Peters and Robin S. Whitehead, Morality in Media, Inc.,
                             New York, NY, for Amicus Curiae Morality in Media, Inc., in
                             support of Respondents.

                             Christopher T. Craig and Robert R. Sparks, Jr., Sparks & Craig,
                             LLP, McLean, VA, for Amicus Curiae Parents Television Council,
                             in support of Respondents.

FOR INTERVENORS:             Carter G. Phillips, R. Clark Wadlow, Mark Schneider, James P.


       **
          Austin C. Schlick is substituted for Matthew B. Berry, who briefed and argued this
case, as counsel for Respondent Federal Communications Commission.
       ***
        Tony West is substituted for Gregory G. Katsas, who briefed this case, as counsel for
Respondent United States of America.

                                               3
                              Young, Jennifer Tatel, David S. Petron, and Quin M. Sorenson,
                              Sidley Austin LLP, Washington, DC; Ellen S. Agress, Maureen A.
                              O’Connell, Fox Television Stations, Inc., New York, NY, for
                              Intervenor Fox Television Stations, Inc.

                              Miguel A. Estrada, Gibson, Dunn & Crutcher LLP, Washington,
                              DC; Susan E. Weiner, NBC Universal, Inc., New York, NY, for
                              Intervenors NBC Universal, Inc. and NBC Telemundo License Co.

                        Robert Corn-Revere, Ronald G. London, Amber L. Husbands, and
                        David M. Shapiro, Davis Wright Tremaine LLP, Washington, DC;
                        Jonathan H. Anschell, CBS Broadcasting, Inc., Los Angeles, CA;
                        Susanna M. Lowy, CBS Broadcasting, Inc., New York, NY, for
                        Intervenor CBS Broadcasting Inc.
______________________________

       Petition for review of a forfeiture order of the Federal Communications Commission.

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review be GRANTED and the forfeiture order of the Federal

Communications Commission (“FCC”) be VACATED.

       ABC, Inc. (“ABC”) and the ABC Television Affiliates Association and ABC-affiliated

television stations (collectively, “ABC Affiliates”) petition for review of an order of the FCC

determining that an episode of the ABC Television Network show NYPD Blue violated

broadcast indecency standards because it depicted a woman’s nude buttocks and imposing a

forfeiture penalty against forty-four ABC-affiliated television stations. See Complaints Against

Various Television Licensees Concerning Their Feb. 25, 2003 Broad. of the Program “NYPD

Blue”, 23 FCC Rcd. 3147, 3147–48, 3171–75 (2008) (“Forfeiture Order”). Petitioners,

supported by Intervenors Fox Television Stations, Inc. (“Fox”), NBC Universal, Inc. (“NBC”),

NBC Telemundo License Co. (“Telemundo”), and CBS Broadcasting Inc., raise administrative




                                                 4
and constitutional challenges to the Forfeiture Order.1 Because Fox Television Stations, Inc. v.

FCC, 613 F.3d 317, 335 (2d Cir. 2010) (rehearing en banc denied), held that the indecency policy

under which the Forfeiture Order was issued is unconstitutionally vague, we grant the petition for

review and vacate the Forfeiture Order.

                                          BACKGROUND

       On February 25, 2003 at 9:00 p.m. in the Central and Mountain time zones, the ABC

Television Network aired an episode of NYPD Blue that depicted an adult woman’s nude

buttocks for slightly less than seven seconds.2 Forfeiture Order, 23 FCC Rcd. at 3147–48 ¶¶ 2–3;

NYPD Blue: Nude Awakening. In the episode, Connie McDowell (played by Charlotte Ross),

who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her

nude buttocks are visible. Complaints Against Various Television Licensees Concerning Their

Feb. 25, 2003 Broad. of the Program “NYPD Blue”, 23 FCC Rcd. 1596, 1598–99 ¶¶ 9–10 (2008)

(“NAL”) ; NYPD Blue: Nude Awakening. As McDowell turns toward the shower, the side of

her buttocks and the side of one of her breasts are visible. NAL, 23 FCC Rcd. at 1599 ¶ 9.

While she faces the shower, the camera pans down, again revealing her nude buttocks. Id. at

1599 ¶ 10. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the

front. See NAL, 23 FCC Rcd. at 1599 ¶ 10; NYPD Blue: Nude Awakening. Theo blocks the



       1
         Amici curiae Center for Creative Voices in Media and Future of Music Coalition
support Petitioners. Amici curiae Decency Enforcement Center for Television, Morality in
Media, Inc., and Parents Television Council support Respondents, the FCC and the United
States.
       2
        The episode began with a warning that “THIS POLICE DRAMA CONTAINS ADULT
LANGUAGE AND PARTIAL NUDITY. VIEWER DISCRETION IS ADVISED.” NYPD
Blue: Nude Awakening (ABC television broadcast Feb. 25, 2003).

                                                5
audience’s view of McDowell’s nudity. Id. Each character reacts with embarrassment, and Theo

leaves the room and apologizes. Id. McDowell, covering her breasts and pubic area, responds,

“It’s okay. No problem.” Id. According to ABC and the ABC Affiliates, the scene was included

to portray the awkwardness between a child and his parent’s new romantic partner and their

difficulties in adjusting to life together.

        The FCC received indecency complaints regarding the episode, and in January 2008 the

FCC issued a notice of apparent liability for forfeiture (“NAL”) to ABC and the ABC Affiliates

proposing the maximum forfeiture penalty of $27,500 against each station. NAL, 23 FCC Rcd.

at 1596, 1601 ¶ 18, 1602 ¶ 23. In February 2008, the FCC issued the Forfeiture Order,

determining that the depiction of the buttocks was indecent and imposing a penalty of $27,500 on

each of forty-four ABC-affiliated stations. See 23 FCC Rcd. at 3147 ¶¶ 1–2, 3171–75. ABC and

the ABC Affiliates petition this Court for review of the Forfeiture Order.

                       JURISDICTION AND STANDARD OF REVIEW

        We have jurisdiction pursuant to 28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a). Under the

APA, we may “hold unlawful and set aside agency action, findings, and conclusions found to be

. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or]

contrary to constitutional right . . . .” 5 U.S.C. § 706(2)(A)–(B). “We review an agency’s

disposition of constitutional issues de novo.” Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 91

(2d Cir. 2009).

                                              DISCUSSION

        Under 18 U.S.C. § 1464, “[w]hoever utters any obscene, indecent, or profane language by

means of radio communication” is subject to a criminal penalty. 18 U.S.C. § 1464. A regulation


                                                  6
pursuant to that statute provides that “[n]o licensee of a radio or television broadcast station shall

broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.” 47 C.F.R.

§ 73.3999(b). The FCC may impose a forfeiture penalty when it determines that a licensee has

violated 18 U.S.C. § 1464. 47 U.S.C. § 503(b)(1)(D). The FCC defines indecent material as

“describ[ing] or depict[ing] sexual or excretory organs or activities” and “patently offensive as

measured by contemporary community standards for the broadcast medium.” Industry Guidance

on the Comm’ns Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding

Broad. Indecency, 16 FCC Rcd. 7999, 8002 ¶¶ 7–8 (2001). In determining whether material is

patently offensive, the FCC looks to three principal factors:

       (1) the explicitness or graphic nature of the description or depiction of sexual or
       excretory organs or activities; (2) whether the material dwells on or repeats at
       length descriptions of sexual or excretory organs or activities; (3) whether the
       material appears to pander or is used to titillate, or whether the material appears to
       have been presented for its shock value.

Id. at 8002 ¶ 10. The context in which the material appears “is critical.” Id.

       Speech “which is indecent but not obscene,” however, “is protected by the First

Amendment.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). The First and

Fifth Amendments protect speakers “from arbitrary and discriminatory enforcement of vague

standards” in laws and regulations. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588

(1998). Standards are unconstitutionally vague if they do not “give the person of ordinary

intelligence a reasonable opportunity to know what is prohibited . . .” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972). “The First Amendment places a special burden on the

government to ensure that restrictions on speech are not impermissibly vague.” Fox, 613 F.3d at

327.


                                                  7
       In Fox, a panel of this Court struck down the FCC’s indecency policy, holding that it

violates the First Amendment because it is unconstitutionally vague. Id. at 319, 330. The FCC

and the United States concede that Fox “invalidated the [FCC]’s indecency policy in its entirety.”

Supplemental Br. for FCC and United States 3. Although they contend that the facts of this case

are different from those of Fox, the FCC and the United States correctly recognize that “Fox does

not turn on [factual] distinctions.”3 Id.

       Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC

levied fines for fleeting, unscripted utterances of “fuck” and “shit” during live broadcasts. Id. at

322. Although this case involves scripted nudity, the case turns on an application of the same

context-based indecency test that Fox found “impermissibly vague.” Id. at 327. According to

the FCC, “nudity itself is not per se indecent.” WPBN/WTOM License Subsidiary, Inc.,

Memorandum Opinion & Order, 15 FCC Rcd. 1838, 1841 ¶ 11 (2000). The FCC, therefore,

decides in which contexts nudity is permissible and in which contexts it is not pursuant to an

indecency policy that a panel of this Court has determined is unconstitutionally vague. Fox, 613

F.3d at 332.

       Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds

this panel. See United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). Accordingly, we need not




       3
          Only amicus curiae Parents Television Council argues that this case is distinguishable
from Fox. The Parents Television Council alleges that Fox’s holding “is restricted to FCC’s
fleeting expletive policy as it relates to live, unscripted broadcasts.” Supplemental Br. for
Parents Television Council at 4. Although certainly the facts of Fox relate to live, unscripted
broadcasts, Fox clearly sweeps more broadly, holding that the “current policy fails constitutional
scrutiny.” Fox, 613 F.3d at 335.

                                                  8
reach the administrative law or other constitutional challenges Petitioners raised.4

                                         CONCLUSION

       For the foregoing reasons, the petition for review is GRANTED and the forfeiture order

of the FCC is hereby VACATED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of the Court




       4
         Because the constitutional issue is decided, the “fundamental and longstanding principle
of judicial restraint” that “requires that courts avoid reaching constitutional questions in advance
of the necessity of deciding them,” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,
445–46 (1988), is not implicated.

                                                 9
