describing Young Broadcasting as “the Commission’s initial effort to abandon its restrained enforcement policy on fleeting material”
How later courts described this case
- describing Young Broadcasting as “the Commission’s initial effort to abandon its restrained enforcement policy on fleeting material”
- "[T]he Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated words and images alike.”
- describing Young as ―the Commission‘s initial effort to abandon its restrained enforcement policy on fleeting material‖
Written by the judges who cited it.
The opinion
RENDELL, Circuit Judge,
concurring in part, dissenting in part.
I wholeheartedly agree with the majority’s cogent reasoning and conclusion that the FCC’s imposition of a fíne against CBS cannot stand, because it acted arbitrarily and capriciously in doing so.
However, I disagree with our opining, in dicta, regarding the various possible levels of scienter arguably required under § 503(b)(1)(B) or (D), or 18 U.S.C. § 1464 , or the Constitution. For one thing, this is dicta. For another, the FCC has conceded that the level of scienter required in order to warrant a fine is “willful,” and has itself urged that the definition of “willful” is as set forth in 47 U.S.C. § 312 (f)(i), meaning “conscious and deliberate commission or omission of such act.” Appellee’s Br. 34-38.
Were it necessary to venture more deeply into the issue of scienter, which I submit it is not, we should point out that the real dispute between the parties is as to what must have been “willful.” The FCC adopted the position that the conscious and deliberate act was simply the act of broadcasting, 38 while the opposing (and, I believe, better) view is that the requisite conscious and deliberate act is the act of broadcasting the indecent material at issue. 39 Clearly, CBS’s conduct here fails the latter test.
*210 I also take issue with the majority’s conclusion that there is a need to remand this case. We have held that the instant fine was improperly imposed. There are no further proceedings necessary. 40 Should the FCC wish to explain its change in policy, it can do so in the next case or issue a declaratory ruling. See 47 C.F.R. § 1.2 . 41 It serves no purpose to do so in the context of this litigation. Nothing is to be gained, and CBS should not be forced to be a party to any such remand, with its attendant time and expense. Accordingly, I respectfully disagree with the disposition of this appeal and would reverse the order imposing forfeiture, without remanding the case.
. The majority points out that the FCC only "abandoned” this position — or, really, sidestepped it — in the Reconsideration Order, where it sought to impose the prevention of this type of broadcast as a non-delegable duty. See Reconsideration Order at ¶ 23.
. Or, if an omission, as the FCC alternatively argues, the conscious and deliberate failure to prevent the broadcast of indecent material.
. Because we have held that the FCC changed its policy, and because the broadcast at issue predated this change, the FCC cannot, consistent with its policy, re-impose the fine after providing an explanation. See Golden Globes, 18 F.C.C. 19859 , at ¶ 15 & n. 40.
. The majority cites Golden Globes as authority for the agency’s setting forth a new policy on remand, but that case did not involve a remand. Moreover, the passage from the treatise cited by the majority, 33 Wright & Koch, Federal Practice and Procedure: Judicial Review § 8313(c) (2007), concerns the proper disposition of a case where further proceedings are necessary for the agency to consider the matter anew and reach a well-reasoned ultimate decision. That is not the case here where the arbitrariness of the agency’s decision is conclusive as to the outcome of the case.