                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2008

CBS Corporation v. FCC
Precedential or Non-Precedential: Precedential

Docket No. 06-3575




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Recommended Citation
"CBS Corporation v. FCC" (2008). 2008 Decisions. Paper 598.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/598


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                                                                   PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 06-3575


                             CBS CORPORATION;
                          CBS BROADCASTING INC.;
                       CBS TELEVISION STATIONS, INC.;
                     CBS STATIONS GROUP OF TEXAS L.P.;
                          and KUTV HOLDINGS, INC.,
                                              Petitioners

                                         v.

                 FEDERAL COMMUNICATIONS COMMISSION;
                      UNITED STATES OF AMERICA,
                                          Respondents


                       On Petition for Review of Orders of the
                       Federal Communications Commission
                            FCC Nos. 06-19 and 06-68


                             Argued September 11, 2007

      Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.

                         ORDER AMENDING OPINION

        IT IS HEREBY ORDERED that the precedential opinion in the above-captioned
case, filed July 21, 2008, be amended as follows:

      Pages 18-19, footnote 7, which read:
            “See In re Infinity Broad. Corp., 37 F.C.C.R. 930, ¶ 5 (1987), vacated in
            part on other grounds, Action for Children’s Television v. FCC, 852 F.2d
            1332, 1337 (D.C. Cir. 1988) (“ACT I”), superseded by Action for Children’s
            Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc) (“ACT II”).”
shall read:
        “See In re Infinity Broad. Corp., 37 F.C.C.R. 930, ¶ 5 (1987), vacated in
        part on other grounds, Action for Children’s Television v. FCC, 852 F.2d
        1332 (D.C. Cir. 1988), superseded in part by Action for Children’s
        Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc).”

Page 19, footnote 8, which read:
        “As described in greater detail infra, subsequent litigation determined what
        time of day broadcasters could reasonably air indecent programming
        without expecting children to be in the audience. The D.C. Circuit Court of
        Appeals rejected a total ban on indecency, instructing the FCC to identify a
        precise time period during which broadcasters could air indecent material.
        See ACT I, supra. In response, the Commission adopted the safe-harbor
        rule of 47 C.F.R. § 73.3999. After further instruction from the D.C. Circuit
        in 1995, ACT II, supra, the Rule was amended to its current form, which
        confines enforcement of indecency restrictions to the hours “between 6:00
        a.m. and 10:00 p.m.” See 47 C.F.R. § 73.3999; In re Enforcement of
        Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 10 F.C.C.R.
        10558 (1995).”
shall read:
        “As described in greater detail infra, subsequent litigation determined what
        time of day broadcasters could reasonably air indecent programming
        without expecting children to be in the audience. The D.C. Circuit Court of
        Appeals rejected a total ban on indecency, instructing the FCC to identify a
        precise time period during which broadcasters could air indecent material.
        See Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir.
        1991) (“ACT I”), superseded in part by Action for Children’s Television v.
        FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc) (“ACT II”). In response, the
        Commission adopted the safe-harbor rule of 47 C.F.R. § 73.3999. After
        further instruction from the D.C. Circuit in 1995, ACT II, the Rule was
        amended to its current form, which confines enforcement of indecency
        restrictions to the hours “between 6:00 a.m. and 10:00 p.m.” See 47 C.F.R.
        § 73.3999; In re Enforcement of Prohibitions Against Broadcast Indecency
        in 18 U.S.C. § 1464, 10 F.C.C.R. 10558 (1995).”

Page 33, footnote 12, which read:
      “It was undisputed that the FCC changed its policy on fleeting expletives in
      Golden Globes, which was decided prior to Fox. But as the Fox court
      explained, the actual moment the agency changed its course was not
      pertinent in determining whether the change was valid under State Farm:

                                      2
                    [W]e . . . reject the FCC’s contention that our review here is
                    narrowly confined to the specific question of whether the two
                    Fox broadcasts . . . were indecent. The [Fox Remand Order]
                    applies the policy announced in Golden Globes. If that policy
                    is invalid, then we cannot sustain the indecency findings
                    against Fox. Thus, as the Commission conceded during oral
                    argument, the validity of the new “fleeting expletive” policy
                    announced in Golden Globes and applied in the [Fox Remand
                    Order] is a question properly before us on this petition for
                    review.
             Fox, 489 F.3d at 454. To hold otherwise would create a situation ripe for
             manipulation by an agency. Cf. ACT I, supra, 852 F.2d at 1337 (“[A]n
             agency may not resort to [ad hoc] adjudication as a means of insulating a
             generic standard from judicial review.”).”
     shall read:
             “It was undisputed that the FCC changed its policy on fleeting expletives in
             Golden Globes, which was decided prior to Fox. But as the Fox court
             explained, the actual moment the agency changed its course was not
             pertinent in determining whether the change was valid under State Farm:
                    [W]e . . . reject the FCC’s contention that our review here is
                    narrowly confined to the specific question of whether the two
                    Fox broadcasts . . . were indecent. The [Fox Remand Order]
                    applies the policy announced in Golden Globes. If that policy
                    is invalid, then we cannot sustain the indecency findings
                    against Fox. Thus, as the Commission conceded during oral
                    argument, the validity of the new “fleeting expletive” policy
                    announced in Golden Globes and applied in the [Fox Remand
                    Order] is a question properly before us on this petition for
                    review.
             Fox, 489 F.3d at 454. To hold otherwise would create a situation ripe for
             manipulation by an agency. Cf. Action for Children’s Television v. FCC,
             852 F.2d 1332, 1337 (D.C. Cir. 1988), superseded in part by ACT II, supra
             note 8 (“[A]n agency may not resort to [ad hoc] adjudication as a means of
             insulating a generic standard from judicial review.”).”

                                               BY THE COURT,

                                               /s/ Anthony J. Scirica
                                               Chief Judge
DATED: August 6, 2008

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