Cbs Corporation v. Federal Communications Commission; United States of America

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1332, 1337 (D.C. Cir. 1988) (“ACT I”), superseded by Action for Children’s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”).”

-- 1 of 3 --

2
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1332 (D.C. Cir. 1988), superseded in part by Action for Children’s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 of 3 --

3
[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

-- 3 of 3 --