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, Duhаmel 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 Broadcаsting 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 Statiоns, Inc., NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting Inc., Intervenors.
Nos. 08-0841-ag, 08-1424-ag, 08-1781-ag, 08-1966-ag.
United States Court of Appeals, Second Circuit.
Jan. 4, 2011.
v.
FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents,
Fox Television Stations, Inc., NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting Inc., Intervenors.
Nos. 08-0841-ag, 08-1424-ag, 08-1781-ag, 08-1966-ag.
United States Court of Appeals, Second Circuit.
Jan. 4, 2011.
Seth P. Waxman (Paul R.Q. Wolfson, Jack N. Goodman, Daniel S. Volchok, and Micah S. Myers, on the brief), Wilmer Cutler Pickering Hale аnd 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
Andrew J. Schwartzman and Parul P. Desai, Media Access Project, Washington, DC, for Amici Curiae Center fоr Creative Voices in Media and Future of Music Coalition, in support of Petitioners.
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,** (Thomаs 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.
Rоbert 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.
Carter G. Phillips, R. Clark Wadlow, Mark Schneider, James P. Young, Jеnnifer 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.
Robеrt 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,
PRESENT: RICHARD C. WESLEY, DEBRA A. LIVINGSTON, Circuit Judges, JANE A. RESTANI,*** Judge.
SUMMARY ORDER
ABC, Inc. (“ABC“) and the ABC Television Affiliates Association and ABC-affiliated television stations (collectivеly, “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 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 vacatе 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 оf 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 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
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 аnd 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
DISCUSSION
Under
(1) the explicitness or graphic nature of the description or depiсtion 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, оr whether the material appears to have been presented for its shock value.
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 аnd 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 knоw 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
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 utterancеs 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 cоntexts 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 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.