Petition for Writ of Certiorari — Children's Legal Foundation, Inc. v. Action for Children's Television

Supreme Court brief1992

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, PETITIONERS

ACTION FOR CHILDREN’S TELEVISION, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOHN G. ROBERTS, JR.

Acting Solicitor General

STUART M. GERSON

Assistant Attorney General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

BARBARA L. HERWIG

JACOB M. LEWIs

Attorneys

Department of Justice

ROBERT L. PETTIT Washington, D.C. 20530

General Counsel (202) 514-2217

RENEE LICHT

Deputy General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

JANE E. MAGO

Counsel

Federal Communications Commission

Washington, D.C. 20554

QUESTION PRESENTED

The Federal Communications Commission is em-

powered to enforce 18 U.S.C. 1464, which prohibits

broadcasts of indecent material. In a statute enacted

in 1988, Pub. L. No. 100-459, § 608, 102 Stat. 2228,

Congress directed the FCC to enforce Section 1464

on a 24-hour-per-day basis. The FCC has promul-

gated a regulation, 47 C.F.R. 73.3999, providing for

such enforcement. The question presented is whether

the 1988 statute and the FCC regulation are uncon-

stitutional, on their face, under the First Amendment.

PARTIES TO THE PROCEEDING

The petitioners, respondents below, are the Federal

Communications Commission and the United States

of America. ;

The respondents in this case are Action for Chil-

dren’s Television, American Civil Liberties Union,

American Family Association, Inc., Association of

Independent Television Stations, Inc., William Bur-

roughs, Capital Cities/ ABC, Inc., CBS Inc., Children’s

Legal Foundation, City Lights Booksellers and Pub-

lishers, Allen Ginsberg, David H. Halperin, Infinity

Broadcasting Corporation, Intercollegiate Broadcast-

ing System, Inc., Norman Mailer, Michael McClure,

Motion Picture Association of America, Inc., Eileen

Myles, National Association of Broadcasters, National

Broadcasting Company, Inc., National Federation of

Community Broadcasters, National Public Radio, The

Pacifica Foundation, Inc., PEN American Center,

People for the American Way, Post-Newsweek Sta-

tions, Inc., Public Broadcasting Service, Radio-

Television News Directors Association, The-Reporters

Committee for Freedom of the Press, and Society of

Professional Journalists. (Children’s Legal Founda-

tion, Inc., and American Family Association, Inc., are

petitioners in No. 91-883, which seeks review of the

same judgment at issue here. )

TABLE OF CONTENTS

Page

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Re I SS SSSR LAS AREA AR 2

Constitutional, statutory, and regulatory provisions

ee SE ee oe re 2

Nasa re Se Ag EN ee EED 3

ep annliewapoeeon 3

2. Thecourt of appeals’ decision in Act J _................ 6

3. Congress’s enactment of a 24-hour ban on in-

I I ic ccneasccecoemnpwasarevers 7

4. The FCC’s study of indecent broadcasting ........... 7

5. The court of appeals’ decision in Act I] .............. 9

Reasons for granting the petition —......00000.000.eeoe eee. 10

a SR ne 21

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a1 i was des amdiempecdgeoveunoioh 13a

Appendix C _.......... Mi Mab tin sista a tang idinawerekorbeee: mesduaussomcs 39a

Bees PD .............-.---. Ssaaaapinaneibesaeddabecundaniusecoadsesenscecraaied 75a

Oo en casera comet ancasniaandnidaciaieons 82a

a eA Bits SORTA PAE esas 192a

SBE re CN OEE Si lees ea enna R mea oe 194a

TABLE OF AUTHORITIES

Cases:

Action for Children’s Television Vv. FCC, 852 F.2d

1832 (D.C. Cir. 1988) ................ a OIAS. 6, 12, 14, 16, 18

Barnes Vv. Glen Theatre, Inc., 111 S. Ct. 2456

SERS 10, 19

Blodgett v. Holden, 275 U.S. 142 (1927) .....0000000... 14

City of Renton v. Playtime Theatres, 475 U.S. 41

nt ARSE OS A ISS cere DE eee OEE 10, 19

Cases—Continued : Page

Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464, In re, 4 F.C.C.

es acdeceedameenaoes 17

FCC v. League of Women Voters, 468 U.S. 364

|| FEIN ASR at peg Ona sate BO Duan D 11

FCC vy. Pacifica Foundation, 438 U.S. 726 (1978) ..passim

Frisby v. Schultz, 487 U.S. 474 (1988) -.........2222.... 15

Ginsberg Vv. New York, 390 U.S. 629 (1968) .......... 12

Infinity Broadcasting Corp.:

2 F.C.C. Red 2705 (1987) .............. eae eaaiiieliat ters 4,5,13

fh ge Ry ha 2 Ree 5

Metromedia, Inc. v. City of San Diego, 453 U.S.

I a 11

New York v. Ferber, 458 U.S. 747 (1982) .............. 11

Pacifica Foundation, Inc. (KPFK-FM), 2 F.C.C.

> RRR erie Senne a 4,13

Pacifica Foundation Station WBAI (FM), 56

a 4,5

Regents of the University of California, 2 F.C.C.

i 4,13

Rowan V. Post Office Dep’t, 397 U.S. 728 (1970)... 12

Sable Communications of California, Inc. v. FCC,

492 U.S. 115 (1989) ...........000000.... 7, 8,10, 11, 12, 16, 18

Wilkinson Vv. Jones, 480 U.S. 926 (1987) -..00000000... 19

Young Vv. American Mini Theatres, Inc., 427 U.S.

rr ec se re 19

Constitution, statutes and regulation:

ome ee RS co mn 2, 3, 11, 14, 15, 18, 19

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations

Act, 1989, Pub. L. No. 100-459, Tit. VI, § 608,

| 2g PR Ne re ee 2,7, 16

Radio Act of 1927, ch. 169, § 29, 44 Stat. 1172 _........ 3

pk | eee ....2, 3, 4, 7, 10, 18, 16, 17, 21

I ctr ccetenceecestceenenxessabecsisicinnmeeent 3

Be ee IID ve cisncesisscsseegnnicernansonsocananteesets 3

Be Sere I RD IRD encrseecsnecceenesvccinveninstoniovecienmats 19

Be GF es TON cereeccnessecseevenes isaac adunntacveccetvoapaahammansns 2, 3,7

Miscellaneous:

Broadcasting Yearbook (1991)

134 Cong. Rec. (1988) :

1, Fe ecetsciieienonntinn sale peasinabenndiiaaaiiienaal cena

BO, eT scccsicsnscscsicsrtstesnsicanetitipniscaandehalodmcacateisases

iE pesckesisdetssickevynbcaceceonstmateceussnniaaetislaecapnea ae telat

8 EB SE ___; 5 CER ECR OTST

Nielsen Media Research, 1990 Report on Televi--

sion

EE EEE EEE EEE EEE EES

Radio Advertising Bureau, Radio Facts for Ad-

vertisers—1989-1990 (1989)

Ju the Sigrenw Court of the Wuited States

OCTOBER TERM, 1991

No.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, PETITIONERS

: J

ACTION FOR CHILDREN’S TELEVISION, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Acting Solicitor General, on behalf of the Fed-

eral Communications Commission and the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the District of Columbia Circuit in this case.’

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-12a) is reported at 932 F.2d 1504. The opinion

of the court of appeals in an earlier, related case

(App., infra, 13a-38a) is reported at 852 F.2d 1332.

The order of the Federal Communications Commis-

sion issuing a regulation codified at 47 C.F.R. 73.3999

(App., infra, 75a-8la) is reported at 4 F.C.C. Red

457. A report of the Commission regarding the regu-

1The same judgment is the subject of the petition in No.

91-883.

(1)

lation (App., infra, 82a-191la) is reported at 5 F.C.C.

Red 5297.

JURISDICTION

The judgment of the court of appeals was entered

on May 17, 1991. A petition for rehearing was de-

nied on August 28, 1991 (App., infra, 192a-193a).

On November 18, 1991, the Chief Justice granted an

extension of time within which to file a petition for

a writ of certiorari to and including December 16,

1991 (Apy., infra, 194a). This Court has jurisdic-

tion under 28 U.S.C. 1254(1).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The First Amendment to the United States Con-

stitution provides, in pertinent part:

Congress shall make no law * * * abridging the

freedom of speech, or of the press * * *.

Section 1464 of Title 18 of the United States Code

provides:

Whoever utters any obscene, indecent, or pro-

fane language by means of radio communication

shall be fined not more than $10,000 or impris-

oned not more than two years, or both.

Section 608 of Pub. L. No. 100-459, Tit. VI, 102

Stat. 2228, provides:

By January 31, 1989, the Federal Communica-

tions Commission shall promulgate regulations in

accordance with section 1464, title 18, United

States Code, to enforce the provisions of such

section on a 24 hour per day basis.

Section 73.3999 of Title 47 of the Code of Federal

Regulations provides:

The Commission will enforce the provisions of

section 1464 of the United States Criminal Code,

18 U.S.C. 1464, on a twenty-four hour per day

basis in accordance with Pub. L. No. 100-459.

STATEMENT

In this case, the United States Court of Appeals

for the District of Columbia Circuit struck down an

Act of Congress and a Federal Communications Com-

mission regulation providing for a 24-hour-a-day pro-

hibition on broadcasts of indecent material. The court

ruled that the First Amendment obligates the Com-

mission to “identify some reasonable period of time

during which indecent material may be broadcast.”

App., infra, 10a. Under the court’s decision, Congress

and the FCC have no power to prohibit broadcasts of

indecent material—material that describes sexual or

excretory activities or organs in terms that are pat-

ently offensive under contemporary community stand-

ards for the broadcast medium—during some portion

of each day.

1. Background

Since 1927, a federal criminal statute has made it

unlawful to “utter[] any obscene, indecent, or pro-

fane language by means of radio communication.”

Radio Act of 1927, ch. 169, § 29, 44 Stat. 1172; 18

U.S.C. 1464. The prohibition encompasses both tele-

vision and radio broadcasts. The FCC is empowered

to enforce Section 1464 in administrative proceedings.

47 U.S.C. 312(a)-(b), 503(b) (1) (D).

In FCC vy. Pacifica Foundation, 438 U.S. 726

(1978), this Court held that Section 1464’s prohibi-

tion on indecent broadcasts was constitutional as ap-

plied to a daytime broadcast of a non-obscene mono-

logue entitled “Filthy Words.” In reaching that con-

clusion, the Court identified two basic justifications

for regulation of indecent broadcasting: the interest

in protecting “the privacy of the home” and the Na-

tion’s interest in ‘“ ‘the well-being of its youth’ and in

supporting ‘parents’ claim to authority in their own

household.’ ” Jd. at 748-749. Accord id. at 756-761

(Powell, J., concurring). The Court did not, how-

ever, have occasion to determine the full extent to

which those interests would sustain regulation of in-

decent broadcasting. See id. at 742, 750.

In the years immediately following Pacifica, the

Commission limited its enforcement of Section 1464

to broadcasts substantially similar to the one at issue

there—i.e., to broadcasts making repeated use of the

same words as the “Filthy Words” monologue. The

Commission also adhered to a practice, foreshadowed

in its decision in Pacifica, 56 F.C.C.2d 94, 99-100

(1975), of withholding sanctions for indecent broad-

casts aired between 10:00 p.m. and 6:00 a.m. While

considering complaints it received in 1986, however,

the Commission reevaluated its position and decided

to broaden its enforcement of the statutory prohibi-

tion on indecent broadcasting. It announced its re-

vised approach in April 1987, in orders determining

that three broadcasts were indecent and thus ac-

tionable under Section 1464.’

2 Pacifica Foundation, Inc. (KPFK-FM), 2 F.C.C. Red 2698

(1987) (issuing a warning, and making a criminal referral

to the Department of Justice, based upon a nighttime broad-

cast of excerpts of a play entitled “Jerker,” which included

graphic descriptions of excretion, anal intercourse, ejacula-

tion, and oral-genital sex); Regents of the University of

California, 2 F.C.C. Red 2703 (1987) (issuing a warning

based upon a nighttime broadcast of a song, “Makin’ Bacon,”

whose lyrics included explicit references to male genitals,

intercourse, and oral-genital sex); Infinity Broadcasting

In those orders, the Commission abandoned its

focus on the use of particular words and returned

to the “generic” definition of indecency it had applied

in Pacifica. Under that definition, a broadcast is

indecent if it includes “language that describes, in

terms patently offensive as measured by contempo-

rary community standards for the broadcast medium,

sexual or excretory activities or organs.” App.,

infra, 41a & n.6. The Commission stated that ma-

terial encompassed by this definition would be action-

able if broadcast “when there is a reasonable risk

that children may be in the audience” (ibid.), and it

indicated that “12:00 midnight [was its] current

thinking as to when it is reasonable to expect that

it is late enough to ensure that the risk of children in

the audience is minimized and to rely on parents to

exercise increased supervision over whatever children

remain in the viewing and listening audience,” id.

at 63a n.47.

Significantly, the Commission’s revised approach to

enforcement of Section 1464 was designed to serve

Corp., 2 F.C.C. Red 2705 (1987) (issuing a warning based

on material aired during a morning radio program that in-

cluded references to male sexual organs, thinly veiled allusions

to bestiality, and discussion of other sex acts). See App.,

infra, 66a-69a; 162a-186a. The first two of those broadcasts

occurred after 10 p.m.; the third occurred between 6 a.m. and

10 a.m. The Commission limited itself to warnings in these

cases because of the possibility that broadcasters might have

relied on the policy the Commission applied following Pacifica. ~

When it issued its erders in these cases, the Commission also

published a notice of its revised enforcement policy in the

Federal Register. 52 Fed. Reg. 16,386 (1987).

The Commission consolidated petitions for reconsideration

of these decisions and denied them in Infinity Broadcasting

Corp., 3 F.C.C. Red 930 (1987). We have included that deci-

sion in an appendix to this petition. App., infra, 39a-74a.

only “the government interest in safeguarding chil-

dren from patently offensive descriptions or depictions

of sexual or excretory activities or organs, so as to

enable parents to decide effectively what material

of this kind their children will see or hear.” App.,

infra, 48a. The Commission did not invoke the other

interest on which this Court had relied in Pacifica—

the interest in the privacy of the home.

2. The Court of Appeals’ Decision in ACT I

Various parties sought review in the United States

Court of Appeals for the District of Columbia Circuit

of the Commission’s new approach to indecent broad-

casting. In Action for Children’s Television v. FCC,

852 F.2d 1332 (D.C. Cir. 1988) [ACT J], the court

of appeals upheld the Commission’s generic definition

of indecent material, but ruled that the Commission

had not “adequately justified its new, more restrictive

channeling approach, 7.e., its curtailment of the hours

when nonobscene programs containing indecent speech

may be broadcast.” App., infra, 14a. The court di-

rected the FCC to reconsider that aspect of its en-

forcement policy and to specify a period during

which indecent broadcasting would be permitted.

“[{I]n view of the constitutionally protected expres-

sion interests at stake,” the court declared, “the FCC

must afford broadcasters clear notice of reasonably

determined times at which indecent material safely

may be aired.” Jd. at 35a. Accord id. at 35a-36a

n.18 (requiring the Commission to adopt “a reason-

able safe harbor rule”). The court’s analysis was

understandably limited to the justification for regu-

lation of indecent broadcasting that the FCC had ad-

vanced—i.e., the interest in facilitating parental su-

pervision of children. Jd. at 29a-30a, 36a-38a & n.20.

3. Congress’s Enactment of a 24-Hour Ban on Indecent

Broadcasting

After the ACT I decision, Congress enacted a stat-

ute requiring the FCC, by January 31, 1989, to

“promulgate regulations in accordance with [18

U.S.C. 1464] to enforce the provisions of such section

on a 24 hour per day basis.” Pub. L. No. 100-459,

Tit. VI, § 608, 102 Stat. 2998. The Commission re-

sponded by issuing a regulation providing for such

enforcement, 47 C.F.R. 73.3999. See App., infra, 75a-

Sla.

4. The FCC’s Study of Indecent Broadcasting

Various parties petitioned for review of the regula-

tion. While those petitions were pending before the

court of appeals, this Court issued its decision in

Sable Communications of California, Inc. v. FCC,

492 U.S. 115 (1989).. In Sable, the Court invalidated

a statute prohibiting indecent telephone messages,

holding that the statute was not sufficiently tailored

to the interest in denying minors access to those mes-

sages. Id. at 126. In reaching that conclusion, the

Court observed that the legislative record underlying

the statute contained no evidence regarding the effec-

tiveness of other means of shielding minors from

indecent telephone messages. Jd. at 129-130. To ad-

dress analogous issues in the context of indecent

broadcasting, the Commission applied for and was

granted a remand. It then commenced a proceeding

to examine the factual justifications for 24-hour per

day enforcement of Section 1464. App., infra, 84a.

The Commission solicited public comment, and re-

ceived over 92,500 formal and informal submissions.

App., infra, 85a n.6. In July 1990, it issued a report

concluding that “a 24-hour prohibition on indecent

broadcasts comports with the constitutional standard

* * * enunciated in Sable for the regulation of con-

stitutionally protected speech.” Jd. at 85a. Relying

on statistical data regarding the viewing and listen-

ing habits of minors, the Commission determined

“+” at there is a reasonable risk that significant num-

bes of children are in the audience for radio and

television broadcasts at all times of the day and

nicht”; that “a significant number of children in the

broadcast audience are not subject to active parental

supervision, even during the late evening and early

morning hours”; and that those facts “warrant nar-

rowly-tailored government regulation of indecent

broadcasting aimed both at facilitating parental su-

pervision and promoting the well-being of youth.”

Td. at 129a, 130a, 131a.

The Commission concluded that “only a 24-hour

prohibition would effectively serve to protect children

from broadcast indecency.” App., infra, 145a. Be-

cause of the risk “that children are present in the

viewing and listening audience at all times,” the Com-

mission explained, “it would not be possible for broad-

cast stations, as a general matter, to channel indecent

material to certain times of the broadcast day without

risk that a significant number of children will be

watching or listening without meaningful parental

supervision.” App., infra, 1382a. The proliferation of

VCRs would “further undermine[] a channeling ap-

proach for television,” the Commission continued,

since “fa majority of households with children have

VCRs that children may operate to tape a program”

—thus providing “children with access to programs

broadcast at a time when their live viewing is least

likely.” Jd. at 134a. The Commission also found

that the use of ratings and warnings would be in-

effective in limiting children’s exposure to indecent

programming and that there were no available tech-

nologies that could restrict children’s access to such

broadcasts. Jd. at 135a-140a.

The Commission’s report found additional support

for a 24-hour prohibition on indecent speech in the

interest in the privacy of the home. While the Com-

mission reaffirmed that its “primary concern” was

“the protection of children from exposure to indecent

materials,” App., infra, 92a, it also found that “Tt]he

government’s interest in preserving the privacy of the

home reinforces its interest in protecting children.”

Id. at 102a.

Finally, the Commission noted that there were al-

ternative sources of indecent material available to

adults wishing to receive it, including cable television,

wireless cable, home satellite dishes, and satellite

master antenna television systems. “{I]mposition

of a 24-hour prohibition on broadcast indecency will

not,” the Commission concluded, “significantly inter-

fere with the ability of adults to view or listen to

indecent programming.” App., infra, 144a.

5. The Court of Appeals’ Decision in ACT II

Relying exclusively on the reasoning of ACT J, the

court of appeals struck down the FCC’s regulation

and the statute mandating it. The court explained,

“Our holding in ACT J that the Commission must

identify some reasonable period of time during which

indecent material may be broadcast necessarily means

that the Commission may not ban such broadcasts

entirely.” App., infra, 10a. The court refused to

reconsider its prior decision in light of the intervening

actions that Congress and the Commission had taken.

Tke court dismissed the 1988 statute with the obser-

vation that “the relevant congressional debate oc-

curred without the benefit of our constitutional hold-

ing in [ACT /],” adding that “[n]Jothing else in the

intervening thirty-four months has reduced the prece-

dential force of ACT I.” Ibid.

REASONS FOR GRANTING THE PETITION

The D.C. Circuit has struck down federal legisla-

tion intended for the protection of every American

household. In so doing, the court departed from fun-

damental principles recognized in this Court’s deci-

sions. The court gave no weight whatever to the in-

terest in protecting “the privacy of the home, where

the individual’s right to be left alone plainly out-

weighs the First Amendment rights of an intruder.”

FCC v. Pacifica Foundation, 438 U.S. at 748. The

court also ignored record evidence confirming the

agency’s judgment that anything less than 24-hour-

a-day enforcement of the prohibition in Section 1464

on indecent broadcasting would expose large numbers

of children to patently offensive depictions of sexual

and excretory activity. Under the lower court’s de-

cision, Congress and the FCC are powerless to prevent

broadcasts of any indecent material short of obscenity

during some portion of each day. Under this Court’s

precedents, that material would include indecent nude

dancing (see Barnes v. Glen Theatres, Inc., 111 S. Ct.

2456, 2460 (1991) ), adult movies (see City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ), and

sexually explicit messages like those now available in

the telephone medium (see Sable, supra). This Court

should grant review to provide full consideration of

the legitimate and compelling interests that led Con-

gress to exclude such material from the public air-

waves—consideration that those interests did not re-

ceive from the court of appeals.

1. In Pacifica, this Court identified two funda-

mental justifications for regulation of indecent broad-

casting. First, because “the broadcast media have

established a uniquely pervasive presence in the lives

of all Americans,” “[p]atently offensive, indecent ma-

terial presented over the airwaves confronts the citi-

zen, not only in public, but also in the privacy of the

home, where the individual’s right to be left alone

plainly outweighs the First Amendment rights of an

intruder.” 438 U.S. at 748. Second, “broadcasting is

uniquely accessible to children, even those too young

to read.” Jd. a. 749. “The ease with which children

may obtain access to broadcast material,” coupled

with the government’s “interest in the ‘well-being of

its youth’ and in supporting ‘parents’ claim to au-

thority in their own-household,’ ” “amply justify spe-

cial treatment of indecent broadcasting.” Jd. at 749-

750, See also id. at 756-761 (Powell, J -, concurring).

For these reasons, speech that might be protected in

other contexts may constitutionally be treated as a

nuisance when broadcast.

These principles have lost none of their force. Re-

cently in Sable, 492 U.S. at 127-128, this Court ac-

knowledged that broadcasting’s “ ‘unique’ attributes’”’

warrant restrictions on indecent speech that might be

impermissibie for other media.* In the course of

striking down a total prohibition on indecent. tele-

phone messages, the Court stressed that the “dial-it

medium requires the listener to take affirmative steps

to receive the communication.” Ibid. By contrast, the

Court noted, “broadeasting is ‘uniquely pervasive,’

* See also FCC v. League of Women Voters, 468 U.S. 364,

380 (1984) ; New York v. Ferber, 458 U.S. 747, 757 (1982) ;

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 &

n.8 (1981) (plurality opinion).

can intrude on the privacy of the home without prior

warning as to program content, and is ‘uniquely ac-

cessible to children, even those too young to read.’ ”

Id. at 127 (quoting Pacifica, 488 U.S. at 748-749).

Sable thus recognized the continuing validity of

Pacifica’s reasoning. 492 U.S. at 128.

The technological basis for regulation of broadcast-

ing also remains intact. It is no more possible today

than it was in 1978 to limit indecent broadcasting to

those adults who wish to receive it. Techniques avail-

able for other media—segregation of material in lo-

cations to which only adults are admitted, access

codes, lock boxes, scrambling, warnings, special pack-

aging, and procedures enabling members of the pub-

lic to express their preference not to receive indecent

material—are unavailable with respect to the public

airwaves.’ “[A] physical separation of the audience

cannot be accomplished in the broadcast media.”

Pacifica, 438 U.S. at 758 (Powell, J., concurring).

2. In this case, the court of appeals struck down

Congress’s prohibition on indecent broadcasting

without giving any weight, or even any attention, to

one of the two basic justifications for regulation of

indecent broadcasting recognized in Pacifica—the

fundamental interest in the protection of the privacy

of the home. In disposing of this case, the court

placed blanket reliance on its reasoning in ACT J.° In

4 Compare Sable, 492 U.S. at 128; Rowan v. United States

Post Office Dep’t, 397 U.S. 728 (1970); Ginsberg v. New

York, 390 U.S. 629 (1968) ; 47 U.S.C. 544(d) (2) (A).

5 See App., infra, 2a (“We believe that the disposition of

this case is governed by [ACT /].’’); id. at 9a (“We agree

with petitioners that circuit precedent compels our rejection

today of a total ban on the broadcast of indecent material.”) ;

id. at 10a (“Our holding in ACT J that the Commission must

eee

the earlier case, however, the only issue before the

court was whether the interest on which the FCC had

chosen to rely—the interest in protecting parental

Supervision of children—was, by itself, sufficient to

sustain enforcement of Section 1464 from 6 a.m. to

12 midnight. The court specifically noted in ACT I

that the Commission had not invoked the “interest in

protecting the adult listener from intrusion, in the

form of offensive broadcast materials, into the pri-

vacy of the home,” App., infra, 37a n.20, and it

stressed that each aspect of its review was confined

to the interest in facilitating parental supervision of

children.*®

There was no justification, of course, for adhering

to the same limitation in this case. Pacifica recog-

nized the constitutional validity of the interest in the

privacy of the home. The legislative history of Con-

gress’s 24-hour prohibition on indecent broadcasting

identify some reasonable period of time during which indecent

material may be broadcast necessarily means that the Com-

mission may not ban such broadcasts entirely.”’) ; id. at lla

(“Thus, neither the Commission’s action prohibiting the

broadcast of indecent material, nor the congressional mandate

that prompted it, can pass constitutional muster under the

law of this circuit.’’).

°In rejecting vagueness and overbreadth challenges to the

Commission’s definition of indecent material, the court noted

that “the sole purpose of that definition [was] to permit the

channeling of indecent material, in order to shelter children

from exposure to words and phrases their parents regard as

inappropriate for them to hear.” App., infra, 29a-30a. Like-

wise, when it assessed the legality of the channeling approach

embodied in the FCC’s 1987 decisions, the court relied on the

Commission’s concession, at oral argument, that the sole inter-

est underlying that approach was “the interest in protecting

unsupervised children from exposure to indecent material.”

Id. at 36a-37a.

establishes that the statute was intended to advance

that interest (134 Cong. Rec. 18,732 (1988) (re-

marks of Senator Helms) ), and the Commission no

longer defends its regulation of indecent broadcasting

solely as a means of protecting children. See App.,

infra, 100a-102a. In determining the constitutional-

ity of a federal statute, the “gravest and most deli-

cate duty” that judges are called upon to perform,

Blodgett v. Holden, 275 U.S. 142, 148 (1927), the

court was obligated to consider all of the legitimate

justifications for the statute at issue.

The court of appeals flatly refused to broaden its

constitutional analysis to take account of the full

range of interests justifying regulation of indecent

broadcasting.’ That refusal was a fundamental error

and a serious departure from this Court’s decisions.

Because the interest in the protection of the privacy

of the home is operative at all times of the day and

night, it is a powerful justification for the total pro-

hibition Congress and the Commission have mandated.

What is more, this Court made clear in Pacifica that

the preservation of residential privacy may outweigh

the First Amendment interests of broadcasters and

those adults who wish to receive indecent broadcasts.

In the home, “the individual’s right to be left alone

plainly outweighs the First Amendment rights of an

intruder.” 438 U.S. at 748.

This Court has reaffirmed the force of the interest

in protecting the home from the intrusion of unwel-

7 The government’s brief and petition for rehearing called

the court’s attention to the fact that the constitutional issue

in this case was different than in ACT I and that the statute

and regulation at issue here were intended to protect the

privacy of the home. Gov’t C.A. Br. 27-28, 33, 36 & n.21;

Gov’t Pet. for Reh’g 3, 13-14. See also Gov’t Opposition to

Motion for Summary Disposition 8-12.

come speech on a number of occasions. In Frisby vy.

Schultz, 487 U.S. 474, 484-485 (1988), for instance,

the Court declared:

[A] special benefit of the privacy all citizens en-

joy within their own walls, which the State may

legislate to protect, is an ability to avoid intru-

sions. Thus, we have repeatedly held that indi-

viduals are not required to welcome unwanted

speech into their own homes and that the govern-

ment may protect this freedom. * * * There

simply is no right to force speech into the home

of an unwilling listener.

These privacy concerns are heightened in the con-

text of the broadcast media. Families often gather in

front of the television set. Radios routinely play

while family members ready themselves for the day

and engage in a variety of common household activi-

ties. Individuals of all ages tune in to the television

and radio at all times of the day and night. Indecent

material of the sort at issue here—patently offensive

descriptions of sexual or excretory activities or

organs, see note 2, supra—intrude on the privacy of

such activities in the home, often without warning. It

is of course true that offended listeners can turn off

the television or radio or change the channel—but

only after the invasion of privacy has occurred. The

court below did not explain why the First Amend-

ment requires listeners to endure the intrusion of pa-

tently offensive depictions of sexual and excretory

activities or organs into their home, so that others

who wish to receive such material need not go to the

trouble of obtaining it from the wide variety of avail-

able alternative sources other than the public air-

waves. See Pacifica, 438 U.S. at 748-749 (“To Say

that one may avoid further offense by turning off the

radio when he hears indecent language is like saying

that the remedy for an assault is to run away after

the first blow.”); id. at 759 (Powell, J., concurring).

The court of appeals’ refusal even to consider this

privacy interest was especially unwarranted in view

of Congress’s clearly expressed dissatisfaction with

prior limitations on enforcement of Section 1464. See

134 Cong. Ree. 18,731-18,735 (1988). The court dis-

missed the 1988 statute requiring 24-hour-per-day

enforcement of Section 1464 with the observation thet

“the relevant congressional debate occurred without

the benefit of our constitutional holding in [ACT /].”

App., infra, 10a. The fact is that Congress enacted

that statute after the decision in ACT /, knowing full

well of the court’s decision and intending to overrule

it. See 184 Cong. Rec. 23,798 (1988) (remarks of

Rep. Dannemeyer). Instead of suggesting that Con-

gress should have respected the court’s limited consti-

tutional reasoning, the D.C. Circuit should have

broadened its own analysis to encompass all of the

legitimate justifications for restricting indecent

broadcasting that had moved Congress to act.

Further review is warranted to correct this clear

and unjustifiable departure from principles recog-

nized by this Court’s decisions.

3. The court of appeals’ decision is seriously

flawed even on its own terms. The administrative

record before the court demonstrated that minors are

present in the audiences for radio and television broad-

casts at all times of the day and night. It cannot be

said, therefore, that indecent broadcasts aired even

during late night hours will reach “only a few of the

most enterprising and disobedient young people.” See

Sable, 492 U.S. at 130. The court devoted no atten-

tion whatever to this issue. Here again, it placed sole

reliance on the reasoning of ACT /, even though that

decision was rendered without the benefit of any com-

parable data.

The record before the court in. this case included

data showing, for recent years:

that “during any given midnight to 6:00 a.m.

time frame on any given day, 3,533,000 dif-

ferent children ages 12-17 in the United States

listened to the radio for at least five minutes”

(App., infra, 112a).

even during the quarter hour period when

listening by minors is at its lowest point,

3:45 a.m. to 4:00 a.m., 309,000 children aged

12 to 17 were in the listening audience

(ibid.).

that in any given week, 53.8 percent of all

children aged 12-17 listened to the radio be-

tween midnight and 6 a.m. for at last five

minutes.

that children aged 12 to 17 “constituted 10 to

12 percent of the post-midnight total listening

audience and this percentage was generally

consistent for daytime listening as well”

(App., infra, 112a).

“that percentage-wise, as many children ages

12-17 as adults watch television during the

late evening hours, and that a higher percent-

age of 12 to 17 year olds than adults may

watch television during these hours in some

markets during the summer months’” (Id. at

118a).

that “66.9% of U.S. television households have

videotape recorders (VCRs)” through which

“children can record late night programming

for viewing during daytime” (id. at 120a).

‘In the Matter of Enforcement of Prohibitions Against

Broadcast Indecency in 18 U.S.C. § 1464, 4 F.C.C. Red 8358,

8375 (1989).

There is not one word in the court of appeals’ opin-

ion questioning the Commission’s findings or suggest-

ing that Congress couid not have reached similar

conclusions. Sable makes clear that close attention to

those factual issues is an indispensable element of any

First Amendment analysis of a limitation on inde-

cent speech. 429 U.S. at 128-130. Nevertheless, the

court of appeals was content to reiterate ACT I’s con-

clusion that the “precision necessary to allow scope

for the first amendment shielded freedom and choice

of broadcasters and their audiences cannot be ac-

complished * * * unless the FCC adopts a reasonable

safe harbor rule.” App., infra, 10a (quoting ACT I

[App.. infra, 36a n.18]).

In this manner, the court of appeals avoided com-

ing to terms with the “value judgment” at the core

of its decision. See Sable, 492 U.S. at 131 (Scalia, J.,

concurring). As the information in the record reflects,

Congress’s 24-hour prohibition on indecent speech is

not subject to criticism on the ground that it is over-

inclusive. Children are present in the audience for

late night television and radio in large numbers, and

the on-off switch on the television or radio in vir-

tually every household is the only ticket to admission.

Indecent broadcasting cannot be restricted to those

households in which it is welcome. Consequently, in

directing the Commission to pursue greater “preci-

sion” in its regulation, the court has in fact ordered

it to subordinate the Nation’s compelling interests “in

the ‘well-being of its youth,’” “in supporting ‘par-

ents’ claim to authority in their own household,’ ”’ and

in the privacy of the home (Pacifica, 438 U.S. at 748-

749) to the interests of those broadcasters who wish

to transmit indecent materials to receptive adults over

the public airwaves.

It is our position that the balance of interests that

this Court struck in Pacifica may fairly be extended

to a 24-hour prohibition on indecent broadcasting.

For reasons recently made clear in Barnes v. Glen

Theatre, Inc., 111 S. Ct. 2456, 2460 (1991), indecent

speech is only marginally within the “outer perimeters

of the First Amendment.” ® Regulation of indecent

broadcasting is not directed at the political or artistic

content of a broadcast. “A requirement that indecent

language be avoided will have its primary effect on

the form, rather than the content, of serious com-

munication. There are few, if any, thoughts that can-

not be expressed by the use of less offensive lan-

guage.”” Pacifica, 438 U.S. at 743 n.18 (plurality

opinion). Adults who wish to view or listen to inde-

cent material may make use of a wide variety of

alternative sources. Indeed, new technologies that

facilitate the delivery of indecent material only to

willing adults have proliferated since Pacifica. See

App., infra, 140a-145a.” Today more than ever, pro-

hibiting indecent materials from the public airwaves

“does not by any means reduce adults to hearing only

® See also City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 49 n.2 (1986) (quoting Young v. American Mini

Theatres, Tue., 427 U.S. 50, 70 (1976) (plurality opinion)

(it is “manifest that society’s interest in protecting this type

of expression is of a wholly different, and lesser, magnitude

than the interest in untrammeled political debate”).

In Wilkinson v. Jones, 480 U.S. 926 (1987), this Court

summarily affirmed a decision striking down a state law

prohibiting indecent cable television programming. Unlike

broadcasters who use the public airwaves, cable operators are

required by law to offer lockboxes enabling parents to deny

their children access to programming. “In order to restrict

the viewing of programming which is obscene or indecent,”

cable operators must offer to each subscriber upon request

‘‘a device by which the subscriber can prohibit viewing of a

particular cable service during periods selected by that sub-

scriber.” 47 U.S.C. 544(d) (2) (A).

what is fit for children.” Pacifica, 438 U.S. at 750

n.28; see id. at 760 (Powell, J., concurring).

In short, we believe that the interests supporting

Congress’s prohibition of indecent broadcasting out-

weigh the stake broadcasters may have in communi-

cating such material to willing adults by means of the

public airwaves. Our opponents take a different view.

What is important for present purposes, however, is

that the matter cannot fairly be resolved on the basis

of the fiction implicit in the court of appeals’s deci-

sion. A more diligent search for a “carefully-tailored”

approach will not uncover a means of targeting inde-

cent broadcasting only (or even disproportionately )

at willing adults. This Court’s review is warranted

to assure that Congress’s and the Commission’s reso-

lution of the important interests at stake receives

more meaningful consideration than the court of ap-

peals gave it.

4. Broadcasting occupies a very prominent place

in the everyday lives of virtually all Americans.

Ninety-two million households in the United States

(98', of all households) have at least one television

set, and about 65‘, of them have more than one set.

See Broadcasting Yearbook A3 (1991). There are

an estimated 541 million radios in the United States,

349 million of them in homes and 192 million in

vehicles. /bid. It is estimated that in the average

television household, television sets are used more

than seven hours each day. Neilsen Media Research,

1990 Report on Television 6. Approximately 80%

of all Americans aged 12 or over listen to radio each

day. Radio Advertising Bureau, Radio Facts for Ad-

vertisers, 1989-1990, at 4. As these figures confirm,

“the broadcast media have established a uniquely per-

vasive presence in the lives of all Americans.” Pa-

cifica, 438 U.S, at 748.

The potential effects of the court of appeals’ deci-

sion are no less sweeping. Under that ruling, any

broadcaster will have a constitutional right to broad-

cast any non-obscene material of its choosing, even

if patently offensive, during some portion of every

day. Because the enforceability of Section 1464’s

prohibition on indecent broadcasting is an issue of

concern to virtually every American household, it

warrants this Court’s attention.

CONCLUSION

The petition for a writ of certiorari should be

granted.

tespectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General *

STUART M. GERSON

Assistant Attorney General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

BARBARA L. HERWIG

JACOB M. LEwIs

Attorneys

ROBERT L. PETTIT

General Counsel

RENEE LICHT

Deputy General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

JANE E. Maco

Counsel

Federal Communications Commission

DECEMBER 1991

* The Solicitor General is disqualified in this case.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 1991 Decided May 17, 1991

No. 88-1916

ACTION FOR CHILDREN’S TELEVISION, et al.,

PETITIONERS

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

CHILDREN’S LEGAL FOUNDATION, et al., INTERVENORS

Petition for Review of an Order of the

Federal Communications Commission

Before: MIkva, Chief Judge, EDWARDS and

THOMAS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge: This case presents constitu-

tional challenges to a Federal Communications Com-

mission (“FCC” or “the Commission”) order, prom-

ulgated at the direction of Congress, barring all

radio and television broadcasts of “indecent” ma-

(la)

terial. We believe that the disposition of this case is

governed by our prior decision in Action for Chil-

dren’s Television v. Federal Communications Com-

mission, 852 F.2d 1332 (D.C. Cir. 1988), in which

we rejected vagueness and overbreadth challenges to

the Commission’s definition of indecency but found

that the Commission’s curtailment of “safe harbor”

broadcast periods impermissibly intruded on consti-

tutionally protected expression interests. Accord-

ingly, we grant the petition for review.

The particulars of this case are best understood

within the history of government efforts to regulate

the broadcast of indecent material. Since 1927, fed-

eral law has prohibited the broadcast of “any obscene,

indecent, or profane language.” 18 U.S.C. § 1464

(1988); see also Radio Act of 1927, § 29, 44 Stat.

1172 (1927) (original protection against utterance

of “obscene, indecent, or profane language’’). In

1975, the Commission essayed to “authoritatively

construe[]” the term “indecent” and to distinguish

it from the modern definition of obscenity as formu-

lated by the Supreme Court in Miller v. California,

413 U.S. 15 (1973). See Pacifica Found., 56 F.C.C.

2d 94, 97 (1975). The Commission defined inde-

cency as “language that describes, in terms patently

offensive as measured by contemporary community

standards for the broadcast medium, sexual or excre-

tory activities and organs,” and emphasized that its

primary regulatory interest lay in protecting chil-

dren from “language which most parents regard as

inappropriate for them to hear.” /d. at 98. The Su-

preme Court upheld the Commission’s finding that a

radio station’s afternoon broadcast of a George

Carlin comedy monologue entitled “Filthy Words”

was indecent under section 1464. See Federal Com-

munications Comm’n v. Pacifica Found., 438 U.S.

726, 738-41 (1978).

The Commission, by its own account, subsequently

“took a very limited approach to enforcing the pro-

hibition against indecent broadcasts.” In re Infinity

Broadcasting Corp. of Pennsylvania, 3 FCC Red

930 (1987) [hereinafter Reconsideration Order]. The

Commission essentially restricted its enforcement

efforts to material broadcast before 10:00 p.m. that

involved “the repeated use, for shock value, of words

similar or identical to those satirized in the Carlin

‘Filthy Words’ monologue.” Jd. at 930. Between

1975 and 1987, no broadcasts at all were found

actionable under this narrow prohibition. See id.

By 1987, however, the Commission had concluded

that “the highly restrictive enforcement standard

employed after the 1975 Pacifica decision was unduly

narrow as a matter of law and inconsistent with our

enforcement responsibilities under Section 1464.” Jd.

teturning to the generic definition of indecency it

had developed in Pacifica, the Commission issued

three rulings declaring material that would not have

violated the “Iilthy Words” test to be indecent. See

Pacifica Found., 2 FCC Red 2698 (1987): The Re

gents of the Univ. of California, 2 FCC Red 2703

(1987); Infinity Broadcasting Corp. of Pennsylvania,

2 FCC Red 2705 (1987) ; see also New Indecency En-

forcement Standards to be Applied to All Broadcast

and Amateur Radio Licensees, 2 FCC Red 2726

(1987) (summarizing Commission policies). Sig-

nificantly, two of the cited broadcasts had aired after

10:00 p.m., the time period previously identified

by the Commission as a “safe harbor” during which

the risk of children in the broadcast audience was

thought to be minimal. See id. at 2726. On recon-

sideration, the Commission affirmed its warnings with

respect to the three broadcasts and noted, in response

to requests for more specific rules regarding time

channeling, that 12:00 midnight was its “current

thinking” as to when the risk of children in the broad-

cast audience could reasonably be thought minimized.

See Reconsideration Order, 3 FCC Red at 934, 937

n.47,

Reviewing the Commission’s order, we first re-

jected petitioners’ vagueness and overbreadth chal-

lenges to the Commission’s generic definition of in-

decency. See Action for Children’s Television v. FCC,

852 F.2d 1332, 1338-40 (D.C. Cir. 1988) [herein-

after ACT I]. However, we vacated the Commis-

sion’s rulings that the two post-10:00 p.m. broad-

casts were indecent. In addition to calling the Com-

mission’s findings “more ritual than real’ and its

underlying evidence “insubstantial,” id. at 1341-42,

we opined that a “reasonable safe harbor rule” was

constitutionally mandated. Jd. at 13843 n.18. Accord-

ingly, we instructed the Commission to determine on

remand, “after a full and fair hearing, . . . the times

at which indecent material may be broadcast.” Jd. at

1344.

Before the Commission could carry out this court’s

mandate, Congress intervened. On October 1, 1988,

two months after the ACT J decision issued, the

President signed into law a 1989 appropriations bill

containing the following rider:

By January 31, 1989, the Federal Communica-

tions Commission shall promulgate regulations

in accordance with section 1464, title 18, United

States Code, to enforce the provisions of such

section on a 24 hour per day basis.

Pub. L. No. 100-459, § 608, 102 Stat. 2228 (1988)

(emphasis added). Concluding that ‘“[t]he directive

of the appropriations language affords us no discre-

tion,” the Commission promulgated a new rule pur-

suant to section 1464 prohibiting all broadcasts of

indecent materials. See Enforcement of Prohibitions

Against Broadcast Obscenity and Indecency in 18

U.S.C. § 1464, 4 FCC Red 457 (1988) [hereinafter

Order], codified at 47 CFR § 73.3999 (1990) (re-

strictions on the transmission of obscene or indecent

language). The Commission also “abandon[ed its]

plans to initiate a proceeding in response to the con-

cerns raised by” the ACT I panel. Order, 4 FCC Red

at 457.

A panel of this court granted petitioners’ motion to

stay enforcement of the ban pending judicial review.

See Action for Children’s Television v. FCC, No. 88-

1916 (D.C. Cir. Jan. 23, 1989). Six months later,

while briefing on the validity of the Commission’s or-

der was underway in this court, the Supreme Court

issued an opinion finding a blanket ban on indecent

commercial telephone message services unconstitu-

tional. Sable Communications of Cal., Ine. v. FCC,

492 U.S. 115, 109 S. Ct. 2829 (1989). Believing that

Sable left open the possibility that indecent broad-

casts may be proscribed if the Commission could

prove that no less restrictive measure would effect-

uate the government’s compelling interests, the Com-

mission sought and obtained a remand from this

court in order to assemble the relevant data support-

ing a total ban. Action for Children’s Television v.

FCC, No. 88-1916 (D.C. Cir. Sept. 18, 1989) (re-

manding record to the FCC for a “full and fair hear-

ing on the issue of the propriety of indecent broad-

casting”’).

The Commission subsequently solicited public com-

ments on the validity of a total ban on broadcast in-

decency. See Enforcement of Prohibitions Against

Broadcast Indecency in 18 U.S.C. § 1464, 4 FCC Red

8358 (1989). After receiving and reviewing the com-

ments, the Commission issued a comprehensive report

concluding that ‘‘a 24-hour prohibition on indecent

broadcasts comports with the constitutional standard

the Supreme Court enunciated in Sable for the regu-

lation of constitutionally protected speech.” Enforce-

ment of Prohibitions Against Broadcast Indecency in

18 U.S.C. § 1464, 5 FCC Red 5297, 5297 (1990).

Finding a ‘reasonable risk that significant numbers

of children ages 17 and under listen to radio and view

television at all times” without “active” parental su-

pervision, the Commission concluded that no alterna-

tive to a total ban would effectuate the government’s

compelling interest in protecting children from broad-

cast indecency. See id. at 5297, 5306. Current pro-

ceedings before the court followed issuance of the

Commission’s report.

IT,

Petitioners, an amalgam of broadcasters, industry

associations, and public interest groups, present sev-

eral constitutional challenges to the Commission’s ac-

tion. First they claim (some more spiritedly than

others) that the Commission’s definition of indecency

is unconstitutionally vague and overbroad. Second,

they contend that a total ban on brordeast indecency

‘cannot withstand constitutional scrutiny. We address

petitioners’ contentions in turn.

A. Vagueness and Overbreadth Challenges

Petitioners contend that the Commission’s defini-

tion of indecency—‘‘language or material that, in con-

text, depicts or describes, in terms patently offensive

as measured contemporary community standards for

the broadcast medium, sexual or excretory activities

or organs,” Order, 4 FCC Red at 457—is unconstitu-

tionally vague. A statute or regulation is void for

vagueness if it “‘ ‘either forbids or requires the doing

of an act in terms so vague that [persons] of com-

mon intelligence must necessarily guess at its mean-

ing and differ as to its application.’” Roberts v.

United States Jaycees, 468 U.S. 609, 629 (1984)

(quoting Connally v. General Construction Co., 269

U.S. 385, 391 (1926) ).

We have already considered and rejected a vague-

ness challenge to the Commission’s definition of in-

decency. In ACT I, we noted that the Supreme Court

entertaining a similar challenge in Pacifica, had

quoted various elements of the definition with ap-

proval and had ultimately affirmed the Commission’s

application of the definition to the broadcast under

review. See ACT J, 852 F.2d at 1338-39. In our

view, the Supreme Court’s decision in Pacifica dis-

pelled any vagueness concerns attending the definition.

See id. at 1339 (“[I]f acceptance of the FCC’s gen-

erie definition of ‘indecent’ as capable of surviving ¢

vagueness challenge is not implicit in Pacifica, we

have misunderstood Higher Authority and welcome

correction.) ; cf. Information Providers’ Coalition v.

FCC, No. 99-70379, Slip Op. at 2935-87 (9th Cir.

March 21, 1991) (rejecting vagueness challenge to

similay definition of indecency in dial-a-porn con-

text). Our holding in ACT 7 precludes us from now

finding the Commission’s generic definition of inde-

cency to be unconstitutionally vague.

Some of the petitioners raise the additional claim

that the definition of indecency is unconstitutionally

overbroad. They contend that, because the Commis-

sion fails to recognize “serious merit” as an absolute

defense to a charge of indecency, the definition sweeps

even constitutionally protected expression within its

ambit. See Houston v. Hill, 482 U.S. 451, 459 (1987)

(noting that statutes “that make unlawful a sub-

stantial amount of constitutionally protected conduct

may be held facially invalid even if they also have

legitimate application”’).

We rejected an identical overbreadth challenge in

ACT I. We noted that indecent material qualifies for

First Amendment protection regardless of merit, but

that even material with “significant social value”

may have a strong negative impact on children. See

ACT I, 852 F.2d at 1340. We thus found the Com-

mission’s method of identifying material suitable for

broadcast only during the late night, safe harbor

hours—whereby merit is treated as a “relevant factor

in determining whether material is patently offensive”

but “does not render such material per se not in-

decent” —to be permissible. See id. at 1339-40. Given

that our decision today reaffirms the need for safe

harbor periods during which indecent material may

be broadcast and invalidates the Commission’s at-

tempt to ban such broadcasts altogether, we have no

reason to revisit ACT /’s conclusion that the Com-

mission’s generic definition of indecency comports

with constitutional overbreadth requirements.

B. Challenge to Total Ban on Broadcast Indecency

Petitioners’ core challenge is to the constitutional

validity of a total ban on the broadcast of indecent

material. Their contentions are two-fold: First, they

claim that, under Supreme Court and circuit prece-

dent, the government may not completely suppress

indecent speech in any medium. Second, they argue

that even if a total ban could theoretically be justi-

fied, the Commission’s action here fails to satisfy the

strict scrutiny standard recently reaffirmed by the

Supreme Court in Sable.

We agree with petitioners that circuit precedent

compels our rejection today of a total ban on the

broadcast of in lecent material. In ACT J, we stated

that:

Broadcast material that is indecent but not ob-

scene is protected by the first amendment; the

FCC may regulate such material only with due

respect for the high value our Constitution places

on freedom and choice in what the people say

and hear.

852 F.2d at 1344. Addressing the scope of permissi-

ble regulation, we explained that:

Content-based restrictions ordinarily “may be

sustained only if the government can show that

the regulation is a precisely drawn means of

serving a compelling state interest.” [citation

omitted] The Supreme Court has recognized a

government’s interest in “safeguarding the physi-

cal and psychological well-being of a minor’ as

“compelling.” [citations omitted] But that in-

terest, in the context of speech control, may be

served only by carefully-tailored regulation.

Id. at 1343 n.18.

We found that the Commission’s elimination of the

post-10:00 p.m. “safe harbor” period failed to satisfy

these constitutional standards. Specifically, we con-

cluded that:

10a

[T]he precision necessary to allow scope for the

first amendment shielded freedom and choice of

broadcasters and their audiences cannot be ac-

complished, we believe, unless the FCC adopts

a reasonable safe harbor rule.

Id. We therefore instructed the Commission, on re-

mand, to “afford broadcasters clear notice of reason-

ably determined times at which indecent material

safely may be aired.” Jd. at 1343.

Our holding in ACT J that the Commission must

identify some reasonable period of time during which

indecent material may be broadcast necessarily means

that the Commission may not ban such broadcasts

entirely. The fact that Congress itself mandated the

total ban on broadcast indecency does not alter our

view that, under ACT J, such a prohibition cannot

withstand constitutional scrutiny. While ‘‘we do not

ignore” Congress’ apparent belief that a total ban on

broadcast indecency is constitutional, it is ultimately

the judiciary’s task, particularly in the First Amend-

ment context, to decide whether Congress has violated

the Constitution. See Sable, 109 S. Ct. at 2838. More-

over, we note that introduction of the appropriations

rider preceded issuance of our decision in ACT /;

thus, the relevant congressional debate occurred with-

out the benefit of our constitutional holding in that

case. See 134 Cona. Rec. 89911-89915 (daily ed.

July 26, 1988).

Nothing else in the intervening thirty-four months

has reduced the precedential force of ACT /. Indeed,

the Supreme Court’s decision in Sable, striking down

a total ban on indecent commercial telephone mes-

sages, affirmed the protected status of indecent speech

and reiterated the strict constitutional standard that

government efforts to regulate the content of speech

lla

must satisfy. See Sable, 109 S. Ct. at 2836 (noting

that “[s]exual expression which is indecent but not

obscene is protected by the First Amendment,” and

stating that the government may “regulate the con-

tent of constitutionally protected speech in order to

promote a compelling interest if it chooses the least

restrictive means to further the articulated inter-

est”). See also Consolidated Edison Co. v. Public

Serv. Comm'n, 447 U.S. 530, 540 (1980). Even the

Commission, prior to congressional enactment of the

appropriations -ider, shared this view. See Reconsid-

eration Order, 3 FCC Red at 931 (dismissing sugges-

tion that section 1464 should be read to totally pro-

hibit the broadcast of indecent material, as such a

reading would “run afoul of [the] constitutional

premise” that the Commission “may only do that

which is necessary to restrict children’s access to

indecent broadcasts” and “may not go further so as

to preclude access by adults who are interested in

seeing or hearing such material’).

Thus, neither the Commission’s action prohibiting

the broadcast of indecent material nor the congres-

sional mandate that prompted it, can pass constitu-

tional muster under the law of this circuit.

ITT.

We appreciate the Commission’s constraints in

responding to the appropriations rider. It would be

unseemly for a regulatory agency to throw down the

gauntlet, even a gauntlet grounded on the Constitu-

tion, to Congress. But just as the FCC may not

ignore the dictates of the legislative branch, neither

may the judiciary ignore its independent duty to

check the constitutional excesses of Congress. We

hold that Congress’ action here cannot preclude the

12a

Commission from creating a safe harbor exception to

its regulation of indecent broadcasts.

Our decision today effectively returns the Commis-

sion to the position it briefly occupied after ACT /

and prior to congressional adoption of the appropria-

tions rider. The Commission should resume its ‘“‘plans

to initiate a proceeding in response to the concerns

raised” in ACT I, which it “abandon[ed]” following

Congress’ mandate. Order, 4 FCC Red at 457. We

direct the Commission, in ‘“‘redetermin[ing], after a

full and fair hearing, ... the times at which indecent

material may be broadcast,” to carefully review and

address the specific concerns we raised in ACT I:

among them, the appropriate definitions of ‘‘children’”’

and “reasonable risk’ for channeling purposes, the

paucity of station- or program-specific audience data

expressed as a percentage of the relevant age group

population, and the scope of the government’s interest

in regulating indecent broadcasts. See ACT I, 852

F.2dvat 1341-44.

For the foregoing reasons, the petition for review

is granted, the order under review is vacated, and the

case is remanded for further proceedings not incon-

sistent with this opinion.

It is so ordered.

—=—e—C< CS

13a

APPENDIX B

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

No. 88-1064

ACTION FOR CHILDREN’S TELEVISION,

ET AL., PETITIONERS

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

MONROE COMMUNICATIONS CORPORATION, MEDIA CEN-

TRAL, INC., ET AL., AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, ET AL., INTERVENORS

Argued June 1, 1988

Decided July 29, 1988

As Amended July 29, 1988

Before ROBINSON, RUTH BADER GINSBURG,

and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH

BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In these three cases, the Federal Communications

Commission (FCC or Commission) readdressed the

l4a

subject, earlier aired in FCC v. Pacifica Founda-

tion, 488 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073

(1978) (Pacifica), of indecent language in radio

broadcasts. The Commission decided that the enforce-

ment standard it had employed from 1975 until 1987

was unduly narrow. It therefore declared in these

cases a changed standard, one concededly more diffi-

cult to administer.’

We uphold the generic definition the FCC has de-

termined to apply, case-by-case, in judging indecency

complaints, but we conclude that the Commission has

not adequately justified its new, more restrictive

channeling approach, 7.e., its curtailment of the hours

when nonobscene programs containing indecent speech

may be broadcast. Two of the three cases before us

involve programs aired after 10:00 p.m. One involves

a show aired 6:00-10:00 a.m. Observing that the

FCC, mindful of the licensee’s reliance on prior Com-

mission rulings, imposed no sanctions, we affirm the

Commission’s declaratory warning order regarding

the show aired 6:00-10:00 a.m. We vacate the FCC’s

orders regarding the post 10:00 p.m. broadcasts and

remand those cases to the Commission with instruc-

tions to reopen the time limitation or channeling as-

pect of the rulings for fresh decision on a full record

and in a manner sensitive to these considerations:

(1) the speech at issue, as the FCC has acknowledged,

is protected by the first amendment; (2) the Com-

mission’s avowed objective is not to establish itself as

censor but to assist parents in controlling the material

young children will hear.

‘In re Infinity Broadcasting Corp. of Pennsylvania, 64

Rad.Reg.2d (P & F) 211 (1987) (Reconsideration Order).

l5da

Petitioners in this case are commercial broadcast-

ing networks, public broadcasting entities, licensed

broadcasters, associations of broadcasters and jour-

nalists, program suppliers, and public interest groups;

they seek review of a December 1987 FCC order

which affirmed, on reconsideration, three April 1987

rulings,’ and announced a new gauge for administer-

ing the restraint, imposed by 18 U.S.C. § 1464

(1982),° on the use of indecent language in radio

communications. The Commission also warned broad-

casters that ‘10:00 p.m. can no longer be considered

the hour after which indecent programming may be

aired”; instead, 12:00 midnight is the FCC’s “current

thinking” on “a reasonable delineation point.” In re

Infinity Broadcasting Corp. of Pennsylvania, 64

Rad.Reg.2d (P & F) 211, 219 n. 47 (1987) (Recon-

sideration Order).

Petitioners maintain that the FCC’s broadened in-

decency enforcement standard is facially invalid be-

cause unconstitutionally vague. Intervenors Ameri-

ean Civil Liberties Union Foundation (ACLU), et al.

present a second facial challenge: the FCC’s mode of

stamping material indecent, they contend, is sub-

stantially overbroad. Petitioners also urge that the

“In re Infinity Broadcasting Corp. of Pennsylvania, 2 FCC

Red 2705 (1987) (Infinity); In re Pacifica Foundation, Inc.,

2 FCC Red 2698 (1987) (Pacifica Foundation) ; In re Regents

of the University of California, 2 FCC Red 2703 (1987)

(Regents of U.C.).

* Section 1464 reads:

Whoever utters any obscene, indecent, or profane lan-

guage by means of radio communication shall be fined not

more than $10,000 or imprisoned not more than two

years, or both.

16a

Commission’s action is arbitrary and capricious be-

cause the change in regulatory course was not accom-

panied by the requisite “reasoned analysis.”

Adhering to the view that broadcast material that

is indecent but not obscene may be channeled to cer-

tain times of day, but not proscribed entirely,’ the

FCC indicated in its Reconsideration Order that 12:00

midnight to 6:00 a.m. would be “safe harbor” hours

for such material. 64 Rad. Reg.2d at 217, 219 n. 47.

Petitioners, joined by intervenors ACLU et al., con-

‘end that this time restraint, stretching to all but the

hours most listeners are asleep, lacks record support

and, in violation of the first amendment, effectively

denies adults access to constitutionally-protected

material.

We hold that the FCC adequately explained why it

decided to change its enforcement standard. Consid-

eration of petitioners’ vagueness challenge, we con-

clude, is not open to lower courts, in view of the

Supreme Court’s 1978 Pacifica decision. Intervenors’

overbreadth plea, we rule, is not effective argument

to the extent that it attacks the FCC’s generic defini-

tion of indecent material.

We further hold, however, that the FCC failed to

adduce evidence or cause, particularly in view of the

first amendment interest involved, sufficient to sup-

port its hours restraint; consequently, we vacate two

of the FCC’s declaratory orders and remand for

reconsideration of the times at which programs con-

taining indeeent material may be broadcast.

*The Commission thus rejected the argument pressed by

Morality in Media (MIM), and repeated by MIM here as

amicus curiae: MIM urged that all indecent material (defined

more broadly than the FCC has ailowed) should be proscribed,

because that is what the statute mandates.

17a

II.

In 1978, in Pacifica, the Supreme Court upheld the

FCC’s authority to regulate a radio broadcast that

is indecent but not obscene. The Court ruled that 47

U.S.C. § 326 (1982), which forbids FCC ‘“censor-

ship,” does not deny the Commission power ‘to im-

pose sanctions on licensees who engage in obscene,

indecent, or profane broadcasting.” 438 U.S. at 738,

98 S.Ct. at 3034. The Court concluded that the spe-

cific broadcast material in question in Paci fica—a re-

cording of a George Carlin monologue titled “Filthy

Words”—was indecent within the meaning of sec-

tion 1464. In so ruling, the court rejected the broad-

caster’s objection that the definition of indecent ma-

terial must include the element of prurient appeal.

Id. at 741, 98 S.Ct. at 3036. On narrow grounds, the

Court held that the FCC order under review in Pa-

cifica did not transgress constitutional limits; the

first amendment, according to the Court, did not pro-

scribe the Commission’s case-specific determination

that the Carlin monologue was subject to regulation

because his performance captured on a record was

“indecent as broadcast.” Jd. at 734, 750, 98 S.Ct. at

3032, 3040.

In the Commission’s 1975 Pacifica order, 56 F.C.C.

2d 94 (1975), the FCC stated that “to avoid the error

of overbreadth,” it was important to be “explicit”

about “whom we are protecting and from what’’; the

Commission then advanced this definition of “the con-

cept of ‘indecent’” in relation to broadcast material:

“exposure of children to language that describes, in

terms patently offensive as measured by contemporary

community standards for the broadcast medium, sex-

ual or excretory activities and organs.” Jd. at 98

(also reiterating that regulation is in order only

18a

“at times of the day when there is a reasonable risk

that children may be in the audience”). At the start

of its 1975 opinion, the FCC had announced: “We

review the applicable legal principles and clarify the

standards which will be utilized in considering the

public’s complaints about the broadcast of ‘indecent’

language.” Jd. at 94. On reconsideration, 59 F.C.C.

2d 892 (1976), however, the Commission retrenched

and stressed that its Pacifica ruling was made “in a

specific factual context’; the Commission therefore

declined to ‘comment on the various hypothetical sit-

uations posed by [petitioner Radio Television News

Directors Association ].” /d. at 893.

Following the Supreme Court’s narrow affirmance

of the Commission’s 1975 Pacifica order, see 438 U.S.

at 750, 98 S.Ct. at 3040, the FCC consistently re-

yorted that it would not essay expansive interpreta-

tion of the indecency concept. See, e.g., In re Applica-

tion of WGBH Educ. Found., 69 F.C.C.2d 1250, 1254

(1978):

[Pacifica] affords this Commission no general

prerogative to intervene in any case where

words similar or identical to those in Pacifica

are broadcast over a licensed radio or television

station. We intend strictly to observe the nar-

rowness of the Pacifica holding. In this regard,

the Commission’s opinion, as approved by the

Court, relied in part on the repetitive occurrence

of the “indecent”? words in question.

Repetitious use of Carlin’s “seven dirty words”’ effec-

tively became the FCC’s yardstick for “indecency,”

and broadcasts after 10:00 p.m. were deemed not

actionable. See Brief for Respondents at 7. No broad-

casts were in fact found actionable after 1975, until

19a

the instant rulings. Reconsideration Order, 64 Rad.

Reg.2d at 214 para. 4.

On April 29, 1987 the Commission released three

decisions, each of which declared “indecent” material

which would not have been so identified under the

prior FCC standard; two of the broadcasts had aired

after 10:00 p.m. In re Infinity Broadcasting Corp.

of Pennsylvania, 2 FCC Red 2705 (1987) (Infinity) ;

In re Pacifica Foundation, Inc., 2 FCC Red 2698

(1987) (Pacifica Foundation); In re Regents of the

University of California, 2 FCC Red 2703 (1987)

(Regents of U.C.). In the Infinity case, the FCC held

actionable portions of the Howard Stern talk show,

which airs from 6:00 to 10:00 a.m. Monday through

lriday; in Pacifica Foundation, the Commission made

a similar ruling regarding excerpts of a play titled

“Jerker,” broadcast between 19:00 and 11:00 p.m.

on a Sunday evening; in Regents of U.C., the FCC

held actionable the broadcast of the song ‘Makin’

Bacon” on a Saturday after 10:00 p.m.

Together with its decision in the Infinity, Pacifica

Foundation, and Regents of U.C. cases, the FCC is-

sued on April 29, 1987, a Public Notice summarizing

the three orders released that day and “put[ting]

all broadcast and amateur radio licensees on notice

as to new standards that the Commission will apply

in enforcing the prohibition against obscene and in-

decent transmissions.” New Indecency Enforcement

Standards to be Applied to All Broadcast and Ama-

teur Radio Licensees, 62 Rad.Reg.2d (P & F) 1218

(1987). The Commission received multiple petitions

for reconsideration and clarification. In response, the

ICC issued a single reconsideration order in which it

affirmed the three individual rulings, addressed eom-

ments and questions it had received, and elaborated

20a

on the rationale for the change in policy. Reconsider-

ation Order, 64 Rad.Reg.2d 211. Petitioners now seek

review of the reconsideration order.

Ill.

As a threshold matter, the FCC contends that this

court should follow the model set by the High Court

in Pacifica, 438 U.S. at 734-35, 98 S.Ct. at 3032-33,

and accordingly review nothing more than the three

specific FCC holdings declaring material “indecent

as broadcast.”’ See Brief for Respondents at 28-29.°

The Commission thus would have us consider only the

questions whether, in each case, the broadcast ma-

terial was indecent, id., and if it was, then whether

the indecent material was aired at a time when there

was a reasonable risk that children may have heen

in the audience. Jd. at 42. The agency action we

confront, however, appears to us sufficiently distinct

from that involved in Pacifica as to warrant a dif-

ferent judicial response.

The Pacifica Court had before it a single, narrowly

focused agency order. Though the FCC had articulated

a generic definition of indecency, see supra p. [17a-

18a], the Commission also noted that ‘the number

°* Intervenor Monroe Communications Corporation advances

a related argument, suggesting that review of the FCC’s

generic definition of indecency is inconsistent with the Pacifica

Court’s recognition that “‘context”’ is “all-important” in deter-

mining whether a particular transmission is indecent. Brief

of Intervenor Monroe Communications Corp. at 6 (quoting

FCC v. Pacifica Foundation, 438 U.S. 726, 750, 98 S.Ct. 3026,

3040, 57 L.Ed.2d 1073 (1978)). That consideration cannot

preclude facial challenges to the FCC’s generic definition

where, as here, the Commission has plainly stated its inten-

tion to apply the definition in a variety of factual ‘‘contexts.”

See infra pp. [21a-22a].

21a

of words which fall within the definition of indecent

is clearly limited.” 56 F.C.C. 2d at 99-100. On re-

consideration, the Commission declined to respond to

a request that it apply the generic definition to news

and public affairs programming. 59 F.C.C.2d at 892-

93. In its brief to the Supreme Court the FCC em-

phasized the narrowness of its ruling. Quoting ex-

tensively from Judge Leventhal’s dissent in the Court

of Appeals, Pacifica Foundation v. FCC, 556 F.2d 9,

30-37 (D.C.Cir. 1977), the FCC stressed that its

ruling carried with it the limiting conditions of cer-

tain words repeated over and over, and the early

afternoon timing of the Carlin broadcast. Brief for

the Federal Communications Commission at 41-43,

Pacifica (No. 77-528). The Commission also di-

rected the Court’ s attention to a then-pending legis-

lative proposal advanced by the FCC which featured

a safe harbor for the airing of indecent material. Jd.

at 43 n. 31; see Legislative Proposal, 122 Conc.REc.

93,399, 33,364 (1976) (safe harbor from 11:00 p.m.

to 7:00 a.m.). The Supreme Court concluded that

the FCC’s decision concerning the Carlin monologue

should be treated strictly as an ad hoe ruling. Pa-

cifica, 438 U.S. at 734, 98 S.Ct. at 3032.

In contrast, in the present cases the FCC has left

no doubt that it has stated a standard it expects to

apply generally, not a prescription peculiarly fitted

to the three individual broadcasts. See Reconsidera-

tion Order, 64 Rad.Reg.2d at 214 para. 5, 216 para.

16 ¢ ‘Broadcasters, when judging whether certain

— ial is legally indecent, . . . must apply a generic

definition with reference to the guidance provided by

existing case law on the matter.’”’). The Commission,

indeed, suggested no theme or principle uniting the

three disparate cases other than the generic defini-

tion itself,

22a

The FCC’s current procedural course differs nota-

bly from the route the Commission followed in the

first Pacifica case. The three individual rulings here

were accompanied by a Public Notice alerting all

broadcasters to the new, generic standard by which

broadcasts would be judged. 62 Rad.Reg.2d at 1218-

19.6 The bulk of the FCC’s Reconsideration Order

was devoted to the comments and concerns of parties

not directly affected by the three individual rulings;

the latter were treated summarily. 64 Rad.Reg.2d

at 217-18 paras. 18-23. The Reconsideration Order

reads more nearly like the result of a notice-and-com-

ment rulemaking than of an ad hoe adjudicatory

proceeding.’

We conclude that the agency has employed the

informal adjudication format to promulgate a rule

of general applicability. Certainly the FCC may

choose the mode by which it proceeds. SEC v. Chen-

ery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1581,

91 L.Ed. 1995 (1947). However, the agency may not

resort to adjudication as a means of insulating a

generic standard from judicial review. We therefore

address petitioners’ and intervenors’ challenges to the

FCC’s generic definition of indecency and the specifi-

cation of the times at which indecent material may

be broadcast.

®* We do not decide whether, as petitioners contend, the

Public Notice is independently reviewable. See Reply Brief

of Petitioners at 3. The FCC’s generic definition of indecency

is adequately presented for review in the Reconsideration

Order. See infra [p. 23a].

7 The court “reviews not the label but the agency pronounce-

ment that underlies the label,” and “it is that pronouncement

itself that governs the determination of its status.” Office of

Communication of the United Church of Christ v. FCC, 826

F.2d 101, 105 (D.C.Cir. 1987).

23a °

IV.

The FCC acknowledges a change of regulatory

course: The Commission now measures broadcast

material against the generic definition of indecency,

while formerly “no action was taken unless material

involved the repeated use, for shock value, of words

similar or identical to those satirized in the Carlin

‘Filthy Words’ monologue.” Reconsideration Order,

64 Nad.Neg.2d at 213 para. 4. Petitioners charge

that the Commission has failed to supply an adequate

explanation for the change. See Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 42, 105 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983);

Action for Children’s Television v. FCC, 821 F.2d

741, 745 (D.C.Cir.1987). Specifically, petitioners say

that the Commission, directly after Pacifica, had tail-

ored the standard to make it reasonably certain and

to afford broadcasters ample breathing space. Brief

of Petitioners at 39. The new standard, they con-

tend, is “inherently vague” and was installed without

anv evidence of a problem justifying a thickened

regulatory response. /d.

The explanation offered by the Commission, in its

Reconsideration Order, is that it found the deliber-

atelv-repeated-use-of-dirty-words policy “unduly nar-

row as a matter of law” and inconsistent with its

obligation responsibly to enforce section 1464. 64

Rad.Reg.2d at 214 para. 5. The former approach

permitted the unregulated broadcast of any material

that did not contain Carlin’s “filthy words,” no matter

how the material might affect children exposed to

it. It made no legal or policy sense, the FCC said,

to regulate the Carlin monologue but not “material

that portrayed sexual or excretory activities or or-

24a

gans in as patently offensive a manner . . . simply

because it avoided certain words.” /d.

We find the FCC’s explanation adequate. Short

of the thesis that only the seven dirty words are

properly designated indecent—an argument petition-

ers disavow—some more expansive definition must

be attempted. The FCC rationally determined that

its former policy could yield anomalous, even arbi-

trary, results. No reasonable formulation tighter

than the one the Commission has announced has been

suggested in this review proceeding. The difficulty,

or “abiding discomfort,” we conclude, is not the ab-

sence of “reasoned analysis” on the Commission’s

part, but the “[v]agueness ... inherent in the sub-

ject matter.” Pacifica Foundation v. FCC, 556 F.2d

at 35 (Leventhal, J., dissenting). We turn next to

that issue.

Petitioners charge that the term “indecent” is in-

herently unclear, and that the FCC’s generic defini-

tion of indecency adds nothing significant in the way

of clarification. The Commission’s definition, peti-

tioners therefore contend, provides broadcasters no

meaningful guide identifying the category of ma-

terial subject to regulation; accordingly, petitioners

urge, the definition should be ruled unconstitutionally

vague. In our view the Supreme Court’s disposition

of Pacifica stops “what the Constitution calls an ‘in-

ferior court’” from addressing this question on the

merits. Cf. Pacifica Foundation v. FCC, 556 F.2d at

37 (Leventhal, J., dissenting) (referring to duty of

“inferior court” to apply Supreme Court decisions

endeavoring “‘to resolve the ‘intractable’ question of

obscenity’’).

25a

The generic definition of indecency now employed

by the FCC is virtually the same definition the Com-

mission articulated in the order reviewed by the

Supreme Court in the Pacifica case.’ However, the

Court did not address, specifically, whether the FCC’s

definition was on its face unconstitutionally vague.’

The Court did hold the Carlin monologue indecent

within the meaning of section 1464. 438 U.S. at 741,

98 8.Ct. at 3036. We infer from this holding that

the Court did not regard the term “indecent” as so

vague that persons “of common intelligence must

necessarily guess at its meaning and differ as to its

application.” Connally v. General Constr. Co., 269

U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322

(1926). The Court referred to the “normal defini-

tion of ‘indecent,’ ”’ quoted a dictionary definition, and

noted that the Commission’s definition uses “inde-

cency” to indicate “patent offensiveness.” 438 U.S.

at 740 & nn, 14, 15, 98 S.Ct. at 3035-36 & nn. 14, 15.

*In 1975 the Commission included in its definition of in-

decent material the element that material be broadcast “at

times of the day when there is a reasonable risk that children

may be in the audience.” In re Pacifica Foundation, 56

F.C.C.2d 94, 98 (1975). The Commission now treats the

nature of the material involved and the time of day when it

is broadcast separately; the time of a broadcast is pertinent

to whether it is actionable, not whether it is indecent. Never-

theless, a violation of section 1464 must be predicated on the

same components relevant under the 1975 formulation:

whether material is indecent and whether it was broadcast

when there was a reasonable risk of children in the audience.

Reconsideration Order, 64 Rad.Reg.2d at 213 n. 6.

° The argument that the term “indecent” in section 1464 is

unconstitutionally vague (if not synonymous with “obscene”’)

was made to the Supreme Court in the Pacifica case. Brief

for Amici Curiae American Broadcasting Cos., Inc. et al.,

Pacifica (No. 77-528).

26a

Moreover, while observing that the Pacifica Foun-

dation took issue with the FCC’s definition of in-

decency, the Court quoted elements of the definition

with seeming approval: “The Commission identified

several words that referred to excretory or sexual

activities or organs, stated that the repetitive, delib-

erate use of those words in an afternoon broadcast

when children are in the audience was patently of-

fensive, and held that the broadcast was indecent.”

The Court ultimately declared: ““When [Pacifica’s]

construction [that prurient appeal is an essential

component of indecent language] is put to one side,

there is no basis for disagreeing with the Commis-

sion’s conclusion that indecent language was used in

this broadeast.” Jd. at 741, 98 S.Ct. at 3036. In

sum, if acceptance of the FCC’s generic definition of

“indecent” as capable of surviving a vagueness chal-

lenge is not implicit in Pacifica, we have misunder-

stood Higher Authority and welcome correction.

VI.

Intervenors ACLU ef al. argue that the FCC’s

generic definition of indecency is substantially over-

broad. As we read Pacifica, only two members of

the five-member majority thought it in order to rule

on overbreadth,” so we proceed to address that issue

In Pacifica, Justice Stevens, joined by Chief Justice

burger and Justice Rehnquist, declined to address Pacifica’s

overbreadth challenge “because our review is limited to the

question whether the Commission has the authority to pro-

scribe this particular broadcast.” 438 U.S. at 742, 98 S.Ct. at

3037. Justice Powell, however, in a concurring opinion joined

by Justice Blackmun, appears to have concluded that the over-

breadth argument should fail on the merits: “[{S]Jince the

Commission may be expected to proceed cautiously, as it has

27a

on the merits. The ACLU’s challenge is predicated

on the absence of redemption from indecency status

for material that has “serious merit.” We hold that

“serious merit” need not, in every instance, immunize

indecent material from FCC channeling authority.

Statutes or regulations “that make unlawful a sub-

stantial amount of constitutionally protected conduct

may be held facially invalid even if they also have

legitimate application.” City of Houston v. Hill, [482

U.S. 451], 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398

(1987). According to intervenors, a proper defini-

tion of indecency would include the requirement that

the “work, taken as a whole, lacks serious literary,

artistic, political, or scientific value.” Brief of In-

tervenors ACLU et al. at 30 (quoting from Miller

v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615,

37 L.Ed.2d 419 (1973) ). Observing that social value

entitles otherwise unprotected obscene expression to

first amendment protection, the ACLU contends that

“it must also be true that social importance requires

full protection for otherwise merely ‘indecent’ ex-

pression.” Brief of Intervenors ACLU et al. at 31.

The Commission urges that its position is “not all

that far apart” from the ACLU’s on this issue. Brief

for Respondents at 38. The FCC recognizes “serious

merit” as “a relevant factor in determining whether

material is patently offensive’; taking into account

the aim of broadcast indecency regulation to pro-

tect children, and the channeling solution at stake,

however, the FCC has “reject[ed] an approach that

would hold that if a work has merit, it is per se not

in the past, I do not foresee an undue ‘chilling’ effect on broad-

casters’ exercise of their rights.” Jd. at 761 n. 4, 98 S.Ct. at

3047 n. 4 (Powell, J., concurring) (citation omitted).

28a

indecent.” Reconsideration Order, 64 Rad.Reg.2d at

216-17 para. 17.

Indecent but not obscene material, we reiterate,

qualifies for first amendment protection whether or

not it has serious merit.’ Children’s access to inde-

cent material, however, may be regulated, because

“even where there is an invasion of protected free-

doms ‘the power of the state to control the conduct of

children reaches beyond the scope of its authority over

adults... .’” Ginsberg v. New York, 390 U.S. 629,

638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968)

(quoting Prince v Massachusetts, 321 U.S. 158, 170,

64 S.Ct. 438, 444, 88 L.Ed. 645 (1944)). Channeling

is designed to protect unsupervised children.” See

infra pp. [86a-37a]. Some material that has signifi-

cant social value may contain language and descrip-

tions as offensive, from the perspective of parental

control over children’s exposure, as material lacking

such value.”* Since the overall value of a work will

11 As Justice Powell commented in Pacifica, except in the

context of commerci?! speech, it is not the prevailing view

thet the degree of protection the first amendment provides

depends on the Court’s judgment as to the “value” of the

speech in question. See 438 U.S. at 761-62, 98 S.Ct. at 3047

(Powell, J., concurring) ; see also id. at 762-63, 98 S.Ct. at

3047 (Brennan, J., dissenting) (“‘[T]he Court refuses to

embrace the notion... that the degree of protection the First

Amendment affords protected speech varies with the social

value ascribed to that speech by five Members of this Court.’’).

12 Broadcasting is a unique medium; it is not possible sim-

ply to segregate material inappropriate for children, as one

may do, e.g., in an adults-only section of a bookstore. There-

fore, channeling must be especially sensitive to the first

amendment interests of broadcasters, adults, and parents.

13 The Carlin monologue itself may be an example of

indecent material possessing significant social value. See

29a

not necessarily alter the impact of certain words or

phrases on children, the FCC’s approach is permissi-

ble under controlling case law: merit is properly

treated as a factor in determining whether material

is patently offensive, but it does not render such ma-

terial per se not indecent. See Reconsideration Order,

64 Rad.Reg.2d at 216-17 para. 17. The FCC’s defini-

tion, therefore, is not vulnerable to the charge that it

is substantially overbroad."

VII.

We have upheld the FCC’s generic definition of in-

decency in light of the sole purpose of that definition:

to permit the channeling of indecent material, in

order to shelter children from exposure to words and

Pacifica, 438 U.S. at 730, 98 S.Ct. at 3000 (broadcaster ex-

plained that the “monologue had been played during a pro-

yram about contemporary society’s attitude toward language”

and that “Carlin is not mouthing obscenities, he is merely

using words to satirize as harmless and essentially silly our

attitudes towards those words’).

Other examples that come readily to mind include descrip-

tions of the doings of Gargantua and Pantagruel in Rabelais’

classic, certain passages in the works of Joyce, words and

phrases found in the writings of D.H. Lawrence, James

Baldwin, and Frank Harris.

'’ Though declining to defer absolutely to broadcasters’

judgments of what is or is not indecent, the FCC has assured

this court, at oral argument, that it will continue to give

weight to reasonable licensee judgments when deciding

whether to impose sanctions in a particular case. Cf. Recon-

sideration Order, 64 Rad.Reg.2d at 218-19 paras. 26, 27 &

n. 44. Thus, the potential chilling effect of the FCC’s generic

definition of indecency will be tempered by the Commission’s

restrained enforcement policy. See also supra note 10 (Justice

Powell states expectation that Commission will continue to

proceed cautiously).

30a

phrases their parents regard as inappropriate for

them to hear. See Reconsideration Order, 64 Rad.

Reg. at 213 para. 2. Petitioners press two linked

objections to the FCC’s “current thinking” that 12:00

midnight is the hour after which indecent material

may be broadcast without sanctions. The FCC’s

channeling decision is arbitrary and capricious, peti-

tioners contend, because it is not based on an ade-

quate factual or analytic foundation. State Farm,

463 U.S. at 43, 103 S.Ct. at 2867. Tied to and color-

ing that contention, petitioners charge that the Com-

mission’s action regarding channeling violates the

first amendment because it reduces adults to seeing

and hearing material fit only for children. See Butler

v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1

L.Ed.2d 412 (1957).

We agree that, in view of the curtailment of broad-

caster freedom and adult listener choice that channel-

ing entails, the Commission failed to consider fairly

and fully what time lines should be drawn. We there-

fore vacate, in the Pacifica Foundation and Regents

of U.C. cases, the FCC’s ruling that the broadcast

under review was actionable, and we remand those

cases to the agency for thoroughgoing reconsideration

of the times at which indecent material may be aired.

We are impelled by the Supreme Court’s Pacifica

decision, however, to affirm the declaratory ruling in

Infinity. The FCC in that case held actionable por-

tions of a talk show that airs 6:00-10:00 a.m. Mon-

day through Friday. In Pacifica, the Court affirmed

Petitioners do not challenge the FCC’s requirement that

programs containing indecent material be preceded by appro-

priate warnings. See Reconsideration Order, 64 Rad.Reg.2d

at 229 para. 29. That aspect of the Commission’s channeling

regulation is not affected by this decision.

3la

a similar declaratory order regarding material broad-

cast 2:00 p.m. on a Tuesday. No principle has been

suggested to us under which we might rationally com-

mand different treatment of the Infinity early morn-

ing program and the Pacifica early afternoon broad-

cast, viewing those broadcasts in the context of the

parent-child concerns underpinning the FCC’s inde-

cent speech regulation. Having upheld the Commis-

sion’s standard for “indecent material,” we conclude

that the FCC’s adjudication in Infinity must remain

in place just as the Supreme Court ordered with re-

spect to the Commission’s adjudication in Pacifica.

The FCC itself, however, would be acting with utmost

fidelity to the first amendment were it to reexamine,

and invite comment on, its daytime, as well as eve-

ning, channeling prescriptions. Cf. infra note 21.

Each of the April 29, 1987 rulings reported an

FCC finding that the broadcast occurred at a time of

day when there was a reasonable risk that children

may have been in the audience. In Pacifica Founda-

tion, involving a 10:00-11:00 p.m. broadcast, the

Commission relied on ratings data indicating that

“approximately 112,200 children aged 12-17 are in

the Los Angeles metro survey area radio audience per

average quarter hour between 7 p.m. and midnight on

Sunday night.” 2 FCC Red at 2699. In Regents of

U.C., involving a program aired after 10-00 p.m.,

available data indicated that

approximately 1,200 children between 12 and 17

years of age are still in the radio audience per

average quarterhour in the Santa Barbara area

between 7 p.m. and midnight on Saturday eve-

ings. There are approximately 4,900 children

within this age group within the City of Santa

Barbara itself and 27,800 in the county.

2 FCC Red at 2704 n. 10.

32a

Even were we to treat each of the two rulings solely

as an ad hoc adjudication, we would regard the evi-

dence on which the Commission rested its channeling

decisions as insubstantial, and its findings more ritual

than real. It is familiar law that an agency treads an

arbitrary course when it fails to “articulate any ra-

tionale connection between the facts found and the

choice made.” Burlington Truck Lines v. United

States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9

L.Ed.2d 207 (1962); see also Independent U.S.

Tanker Owner Comm. v. Lewis, 690 F.2d 908, 922

(D.C.Cir. 1982) (applying same standard to in-

formal adjudication). We conclude that the Commis-

sion followed such a course here.

In each instance under inspection the cited popula-

tion figures appear to estimate the number of teens in

the total radio audience. There is no indication of the

size of the predicted audience for the specific radio

stations in question. Cf. Reconsideration Order, 64

Rad.Reg.2d at 217 para. 18.

More troubling, the FCC ventures no explanation

why it takes teens aged 12-17 to be the relevant age

group for channeling purposes.’® In the Commission’s

1976 legislative proposal, cited to the Supreme Court

in the FCC’s Pacifica brief, the Commission would

have required broadcasters to minimize the risk of

exposing to indecent material children wnder age 12.

The FCC reasoned: ‘‘Age 12 was selected since it is

the accepted upper limit for children’s programming

in the industry and at the Commission. The Commis-

' The FCC notes on brief that the ratings services do not

publish figures for children under 12, Brief for Respondents

at 44 n. 46, but the orders under review do not mention that

fact. Nor did the Commission say how it uses the 12-17 age

group figures to reach conclusions about the younger group.

33a

Sion considered using the generally recognized age of

majority—18—but concluded that it would be vir-

tually impossible for a broadcaster to minimize the

risk of exposure to 18-year-olds.” 122 ConG.REC. at

33,367 n. 119. The FCC further referred to the dis-

tinction between obscene and merely indecent materia!

in observing that “a reduced age seemed in order.” Id.

We cannot tell from the reeord before us whether the

Commission is now spreading the focus of its concern

to children over 12. See Brief for Respondents at 44

n. 46. If it is thus widening its sights, that apparent

change in policy warrants explanation. If, on the

other hand, the FCC continues to consider children

under 12 as the age group of concern, it should either

supply information on the listening habits of children

in that age range, or explain how it extrapolates rele-

vant data for that population from the available rat-

ings information.

Furthermore, we note that in the Los Angeles case

there is no basis for comparison between the number

of teens estimated to be in the radio audience and the

total number of teens in the listening area. In Santa

Barbara, for which comparative data are available,

the figure attracting the FCC’s concern amounts to,

at most, 4.3 percent of the age group population.”

The Commission published no reason why it deter-

mined that the potential expesure of four percent of

all children amounts to a “reasonable risk” for chan-

neling purposes.

“ The ratings services estimated 1,200 children 12-17 years

old in the radio audience, of a total population in that age

group of 4,900 within the City of Santa Barbara and 27,800

in the county. Since it is not clear whether the county figure

includes the city population, the precise percentage is un-

known; the estimated radio audience comprises 3.7 to 4.3

percent of the total age-group population.

34a

We do not, however, remand solely for reconsidera-

tion of the individual rulings. In the Reconsideration

Order the FCC offered some advice to broadcasters:

[W]hereas previously we indicated that 10:00

p.m. was a reasonable delineation point, we now

indicate that 12:00 midnight is our current

thinking as to when it is reasonable to expect

that it is late enough to ensure that the risk of

children in the audience is minimized and to rely

on parents to exercise increased supervision over

whatever children remain in the viewing and

listening audience.

64 Rad.Reg.2d at 219 n. 47. The Commission next

listed several competing interests, see infra p. [36a],

and said that its approach accommodated them. As

noted by Commissioner Dennis, however, ‘‘the argu-

ments the majority gives in support of midnight as

the critical hour may well be equally true if applied

to an earlier hour.” Jd. at 220 (Dennis, Comm’r,

concurring). We agree that the FCC’s midnight ad-

vice, indeed its entire position on channeling, was not

adequately thought through.

At oral argument of this case on June 1, 1988,

General Counsel for the FCC suggested that if this

court found the midnight safe harbor problematic, we

could disregard it and permit the Commission to

make future channeling decisions on a case-by-case

basis. However, the FCC itself has recognized that

“the effect of that approach may well be to cause

broadcasters to forego the broadcast of certain pro-

tected speech altogether, rather than to channel it to

late night hours.” Jd. at 219 n. 47. In common with

the Commission, we are constrained to agree with

that assessment. Facing the uncertainty generated by

a less than precise definition of indecency plus the

lack of a safe harbor for the broadcast of (possibly)

35a

indecent material, broadcasters surely would be more

likely to avoid such programming altogether than

would be the case were one area of uncertainty elimi-

nated. We conclude that, in view of the constitution-

ally protected expression interests at stake, the FCC

must afford Sra clear notice of reasonably

determined times at which indecent materia] safely

may be aired."

18 In the 1987 Pacifica Foundation order the FCC suggested

that channeling can be viewed as a valid time, place, and

manner restriction on speech. 2 FCC Red at 2699 para. 14 &

n. 3; cf. Reconsideration Order, 64 Rad.Reg.2d at 215 para.

12. We disagree. Time, place, and manner reculations must

be content-neutral. Pacific Gas & Elec. v. Publie Utils.

Comm’n of Cal., 475 U.S. 1, 20, 106 S.Ct. 903, 913. 89 L.Rd.2d

1 (1986). Channeling, however, is a content-based regulation

of speech. See Boos v. Barry, [485 U.S. 312], 108 S.Ct. 1157.

1163, 99 L.Ed.2d 333 (1988) (plurality opinion of O’Connor,

J.): “Regulations that focus on the direct impact of speech

on its audience [are not content-neutral]. To take an ex: imple

factually close to Renton [v. Playtime Theatres, Inc. , 475 US.

41 [106 S.Ct. 925, 89 L.Ed.2d 29] (1986) (ordinance regulat-

ing adult-movie theaters) ], if the ordinance there was justi-

fied by the city’s desire to prevent the psychological damage

it felt was associated with viewing adult movies. then analy-

sis of the measure as a content-based statute would have been

appropriate.” See also id. at 1171 (Brennan.., J., concurring) :

“[A]ny restriction on speech, the application of which turns

on the content of the speech, is a content-based restriction

regardless of the motivation that lies behind it.”

Content-based restrictions ordinarily “may be sustained

only if the government can show that the regulation is a pre-

cisely drawn means of serving a compelling state interest.”

Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S.

530, 540, 100 S.Ct. 2326,-2334, 65 L.Ed.2d 319 (1980). The

Supreme Court has recognized a government’s interest in

“safeguarding the physical and psychological well-being of a

minor” as “compelling.” New York v. Ferber, 458 U.S. 747.

756-57, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 11123 (1982) (quot-

ing Globe Newspaper Co. v. Superior Court, 457 U.S. 596.

36a

It is not within our authority to instruct the FCC

to establish a safe harbor by means of a rulemaking

proceeding. See Chenery, 332 U.S. at 203, 67 St

at 1581. We call attention, however, to the clear

statement made by one Commissioner: “The fact is

the Commission has no scientific body of information

that conclusively establishes one time as more appro-

priate than another as the critical hour after which

to permit broadcast of indecent speech. What is nec-

essary is a notice of proposed rulemaking to establish

a record.” Reconsideration Order, 64 Rad. Reg.2d at

220 (Dennis, Comm’r, concurring). The inadequate

record relevant to channeling made in the cases the

Commission adjudicated lends support to that Com-

missioner’s view.

The FCC noted that a channeling decision must

accommodate these competing interests:

(1) the government, which has a compelling inter-

est in protecting children from indecent material;

(2) parents, who are entitled to decide whether

their children are exposed to such material if it

is aired; (3) broadcasters, who are entitled to

air such material at times of day when there is

not a reasonable risk that children may be in the

audience; and (4) adult listeners, who have a

right to see and hear programming that is in-

appropriate for children but not obscene.

Id. at 219 n. 47. At the June 1, 1988 oral argument,

the FCC’s General Counsel, in response to the court’s

607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982)). But that

interest, in the context of speech control, may be served only

by carefully-tailored regulation. Here, the precision necessary

to allow scope for the first amendment shielded freedom and

choice of broadcasters and their audiences cannot be accom-

plished, we believe, unless the FCC adopts a reasonable safe

harbor rule.

37a

inquiry, clarified the government’s interest: it is the

interest in protecting unsupervised children from ex-

posure to indecent material; the government does not

propose to act in loco parentis to deny children’s ac-

cess contrary to parents’ wishes.’ Therefore the first

two interests identified by the FCC coalesce; the gov-

ernment’s role is to facilitate parental supervision of

children’s listening. “‘[T]he Commission is advancing

the government interest in safeguarding children

from patently offensive [material], so as to enable

parents to decide effectively what material of this

kind their children will see or hear.” Jd. at 215 para.

11." Thus, the FCC must endeavor to determine

what channeling rule will most effectively promote

parental—as distinguished from government—con-

trol.*?

‘See Henkin, Morals and the Constitution: The Sin of

Obscenity, 63 COLUM.L.RFV. 391, 413 n. 68 (1963) (“While

many of the constitutional arguments against morals legisla-

tion apply equally to legislation protecting the morals of chil-

dren, one can well distinguish laws which do not impose a

morality on children, but which support the right of parents

to deal with the morals of their children as they see fit.’’).

°° The Pacifica Court also identified an interest in protect-

ing the adult listener from intrusion, in the form of offensive

broadcast materials, into the privacy of the home. 438 U.S.

at 748-49, 98 S.Ct. at 3040; see also id. at 759-60, 98 S.Ct. at

3045-3046 (Powell, J., concurring). Neither the Reconsidera-

tron Order nor the underlying rulings relies on that rationale.

however.

-' Petitioners argue cogently that parental authority is

enhanced, not reduced, if government permits programming

at hours outside the workday hours common in the commu-

nity, when most parents can supervise their children’s listen-

ing. See also Pacifica Foundation v. FCC, 556 F.2d at 36

(Leventhal, J., dissenting) (‘“[F]Jor homes where parents

really care about such matters there would be at least one

parent in a position to monitor the material heard and seen

38a

A securely-grounded channeling rule would give

effect to the government’s interest in promoting par-

ental supervision of children’s listening, without in-

truding excessively upon the licensee’s range of dis-

cretion or the fare available for mature audiences and

even children whose parents do not wish them shel-

tered from indecent speech. Such a rule would present

a clearly-stated position enabling broadcasters to com-

prehend what is expected of them and to conform

their conduct to the legal requirement.

CONCLUSION

Broadcast material that is indecent but not obscene

is protected by the first amendment; the FCC may

regulate such material only with due respect for the

high value our Constitution places on freedom and

choice in what the people say and hear. We have con-

cluded that, under governing precedent, the FCC’s

definition of indecent broadcast material, though

vagueness is inherent in it, is not constitutionally de-

fective, and that the Commission’s declaratory order

in Infinity, 2 FCC Red 2705, must be affirmed. But

we have also found that the FCC has not implemented

its authority to channel such material in a reasonabie

manner. We therefore vacate in part the reconsidera-

tion order under review and return Pacifica Founda-

tion, 2 FCC Red 2698, and Regents of U.C., 2 FCC

Red 2703, to the Commission for redetermination,

after a full and fair hearing, of the times at which

indecent material may be broadcast.

It is so ordered.

fin the early evening]. A rule expanding the zone of the

broadcastable to adult levels might apply when the time of

broadcast is such that the great preponderance of children are

subject to parental control.’’).

39a

APPENDIX C

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

INFINITY BROADCASTING CORPORATION OF

PENNSYLVANIA,

Licensee of Station WYSP(FM)

In the Matter of

PACIFICA FOUNDATION, INC.

Licensee of Station KPFK-FM,

Los Angeles, Ca.

In the Matter of

THE ?EGENTS OF THE UNIVERSITY OF CALIFORNIA,

Licensee of Station

KCSB-FM, Santa Barbara, Ca.

MEMORANDUM OPINION AND ORDER

Adopted: November 24, 1987;

Released: December 29, 1987

By the Commission: Commissioner Dennis coneur-

rine and issuing a statement.

40a

I. BACKGROUND

1, The Commission has before it for consideration

petitions and comments' pertaining to three rulings

adopted on April 16, 1987, involving the prohibition

contained in 18 U.S.C. § 1464 against the broadcast

or transmission of indecent material.? See Pacifica

Foundation, Inc., 2 FCC Red 2698 (1987) (KPFK-

FM); The Regents of the University of California,

2 FCC Red 2703 (1987) (KCSB-FM); Infinity

Broadcasting Corp. of Pa., 2 FCC Red 2705 (1987)

(WYSP (FM)).*

1 These include a Petition for Clarification, filed June 1,

1987, by the National Association of Broadcasters (NAB

Petition) ; a Petition for Reconsideration; filed June 1, 1987,

by Action for Children’s Television, Association of Independ-

ent Television Stations, Inc., Capital Cities/ABC, Inc., CBS

Inc., EZ Communications, Inc., Motion Picture Association of

America, Inc., National Broadcasting Company, Inc., National

Public Radio, The New York Times Company, People for the

American Way, Post-Newsweek Stations, Inc., Public Broad-

casting Service, Radio-Television News Directors Association,

The Reporters Committee for Freedom of the Press, and

Society of Professional Journalists, Sigma Delta Chi (ACT

Petition) (collectively “petitioners) ; Comments, filed June 15,

1987, by the Maryland-District of Columbia-Delaware Broad-

casters Association (MDCD); Comments, filed July 6, 1987,

by Morality In Media, Inc. (MIM); and, Reply Comments,

filed July 21, 1987, by ACT.

218 U.S.C. § 1464. The section provides: “Whoever utters

any obscene, indecent or profane language by means of radio

communication shall be fined not more than 10,000 or im-

prisoned not more than two years, or both.”

3 Also decided the same day was a case involving indecent

transmissions by an amateur radio licensee. David Hildebrand

(N6BHU), 2 FCC Red 2708 (1987). Shortly afterward, the

Commission issued a public notice, in which it summarized

the orders and indicated that it was putting all licensees on

———————— lrlt ttt”

4la

2. The Communications Act of 1934, as amended,

empowers the Commission to impose administrative

sanctions for violations of Section 1464, including

warnings, imposition of fines and, in severe cases, the

revocation of licenses.‘ In 1975, the Commission ruled

that a 12-minute monologue by comedian George

Carlin entitled “Filthy Words” broadcast by Station

WBAI(FM), New York, New York, at 2:00 p.m. in

the afternoon was indecent within the meaning of

Section 1464.° In so ruling, the Commission defined

indecency as “language that describes, in terms pat-

ently offensive as measured by contemporary com-

munity standards for the broadcast medium, sexual

or excretory activities or organs, when there is a

reasonable risk that children may be in the audi-

ence.” ° The Commission said that the concept of

indecency is intimately connected with the exposure

of children to material that most parents regard as

notice as to the new enforcement standards set forth in these

cases. Public Notice, FCC 87-153 (released April 29, 1987),

2 FCC Red 2726 (1987). Petitioning and commenting parties

here limit themselves to the broadcast-related rulings, and we

do the same.

447 U.S.C. $§ 312 (a) (6), 503(b) (1) (D).

5 Pacifica Foundation, 56 FCC 2d 94 (1975) (WBAI(FM)).

6 Jd. at 98. In our recent actions, we treated the nature of

the material involved and the time of day that children are

in the audience separately because we believe that the ques-

tion of the time of a “patently offensive” broadcast is more

pertinent to channeling and to whether a broadcast is “‘action-

able’ under 18 U.S.C. § 1464 than to whether it is indecent.

We note, however, that because the aim of broadcast in-

decency regulation is to protect children, a violation finding

will only be entered if both components of the test are met—

?.e. material must be both indecent and broadcast when there

is a reasonable risk that children may be in the audience.

42a

inappropriate for them to hear.’ Analogizing to the

law of nuisance, the Commission said such material

is inappropriate for broadcast when there is a reason-

able risk that children may be in the audience.* The

Commission suggested that this risk might not exist

during late evening hours and that indecent programs

could conceivably be broadcast at such times, if ac-

companied by appropriate warnings.’

3. The Supreme Court upheld the Commission.”

The Court observed that the ease with which children

may obtain access to broadcast material, coupled with

the government’s interest in protecting the well-being

of its youth, and parents claim to authority in their

homes, amply justify the channeling of indecent

broadcasts. Thus, stressing the Commission’s nui-

sance theory, the Court concluded that the FCC may,

consistent with the first amendment, require broad-

casters to channel indecent speech to times of day

7 See id.

8 The Commission distinguished indecency from obscenity,

noting that the latter is governed by the standards set forth

in Miller v. California, 413 U.S. 15 (1973). Under the Miller

test, obscene material is that which: (1) the average person,

applying contemporary community standards, would find,

taken as a whole, appeals to the prurient interest; (2) depicts

or describes in a patently offensive way sexual conduct; and

(3) taken as a whole, lacks serious literary, artistic, political,

or scientific value. 7d. at 24. See generally WBAI(FM), 56

FCC 2d at 97-98. Recently, the Supreme Court further

elaborated on the third criterion by holding that the deter-

mination of whether material lacks serious literary, artistic,

political or scientific value should be made on the basis of a

“reasonable person” standard, not a “contemporary com-

munity” standard. Pope v. Illinois, 107 S.Ct. 1918 (1987).

® See WBAI (FM), 56 FCC 2d at 100.

10 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

43a

when there is not a reasonable risk that children may

be in the audience.”

4. In cases decided subsequent to the Supreme

Ceurt’s ruling, the Commission took a very limited

approach to enforcing the prohibition against inde-

cent broadcasts.’ Unstated, but widely assumed, and

implemented for the most part through staff rulings,

was the belief that only material that closely resem-

bled the George Carlin monologue would satisfy the

indecency test articulated by the FCC in 1975.” Thus,

no action was taken unless material involved the

repeated use, for shock value, of words similar or

identical to those satirized in the Carlin “Filthy

Words” monologue. Also widely shared was the view

that such broadcasts would be actionable only if aired

before 10:00 p.m."* As a result, the Commission,

since the time of its ruling in 1975, has taken no

action against any broadcast licensee for violating

the prohibition against indecent broadcasts.

5. Our April 1987 rulings in the three cases re-

quired us to readdress the subject thoroughly at the

11 Td, at 748-50; see id. at 757-59 (Powell, J., concurring).

The Court also noted that the Commission relied on spectrum

scarcity of the broadcast medium to provide additional sup-

port for such a requirement. The Court did not rely on that

rationale, however, in upholding the Commission. /d. at 747-

750; see id. at 758-761 (Powell, J., concurring). Our April

1987 rulings expressly rejected this rationale (see, e. g.,

it herein.

12 See WGBH Educational Foundation, 69 FCC 2d 1250,

1254-55 (1978); Pacifica Foundation (WPFW-FM), 95 FCC

2d 750 (1983).

44a

full Commission level for the first time since the

Supreme Court’s 1978 decision. On close analysis

we found that the high!y restricted enforcement

standard employed after the 1975 Pacifica decision

was unduly narrow as a matter of law and incon-

sistent with our enforcement responsibilities under

Section 1464. Essentially, we concluded that, although

enforcement was clearly easier under the former

standard, it could lead to anamolous results that

could not be justified. Under that standard, material

that portrayed sexual or excretory activities or or-

gans in as patently offensive a manner as the earlier

Carlin monologue—and, consequently, of concern with

respect to its exposure to children—would have been

permissible to broadcast simply because it avoided

certain words. That approach, in essence, ignored

an entire category of speech by focusing exclusively

on specific words rather than the generic definition of

indecency. This made neither legal nor policy sense.

Accordingly, we concluded that we must take the

more difficult approach to enforcing Section 1464.

Therefore, each of our rulings advised broadcasters

that in judging indecency complaints, we shall use the

generic definition of indecency articulated by the

Commission in 1975 and approved by the Supreme

Court in 1978 as applied to the Carlia monologue. In

applying that definition to the three cases before us

in April, we recognized the importance of context to

indecency determinations, noting that such determi-

nations cannot be made in the abstract. Instead, we

determined, based on the facts of each case, that the

broadcasts at issue—or certain portions thereof—

were indecent.’° We also found that, at least with

15 KPFK-FM involved two complaints against the same

licensee. While we found that the broadcast of certain por-

45a

respect to the particular markets involved, available

evidence suggested there were still significant num-

bers of children in the audience at 10:00 p.m. We

therefore advised that broadcasters should no longer

assume that 10:00 p.m. is automatically the time

after which indecent broadcasts may safely be aired.

Rather, we indicated that indecent material would be

actionable (that is, would be held in violation of 18

U.S.C. § 1464), if broadcast when there is a reason-

able risk that children may be in the audience, a de-

termination that was to be based on ratings data on

a market-by-market basis.

6. In sum, in each of the cases before us, we found

that the licensee had broadcast indecent material on

the particular programs in question, at a time when

there was a reasonable risk of children in the au-

dience. We declined to take enforcement action, how-

ever, because each broadcaster had proffered a reason-

able basis for believing it was permissible to air the

subject material under the circumstances involved.

Therefore, we limited ourselves to warning the licen-

sees that the broadeasts would be actionable under

the revised enforcement standards made clear in our

decisions.

II. THE PLEADINGS

7. Petitioner NAB asks the Commission to clarify,

and petitioner ACT asks us to reconsider, not our

rulings themselves, but the rulings as characterized

tions of a program entitled “IMRU”, which was the subject

of one complaint, was actionable under Section 1464, we de-

clined to find that a broadcast of another program, entitled

“Shocktime, U.S.A.,”’ was actionable. The complaint relating

to the latter broadcast, which indicated that the broadcast

consisted of unscripted, isolated expletives, did not present

sufficient evidence for a finding of actionable indecency. Jd.

46a

in the public notice summarizing the cases. Petition-

ers do not challenge the Commission’s authority to

channel indecent broadcasts to late night hours. In-

stead, they maintain that our construction of Section

1464 is unconstitutionally vague and overbroad. To

remedy these asserted constitutional failings, peti-

tioners ask us to adopt several revisions. Collectively,

they urge us to: (1) provide more precise guidance

as to the elements pertinent to whether material is

“patently offensive and violates “contemporary com-

munity standards for the broadcast medium”; (2)

consider the literary, artistic, political and scientific

value of programming in judging whether it is pat-

ently offensive and, thus, indecent; (3) exempt news

and informational programming from a finding of

indecency; (4) defer to reasonable good faith judg-

ments made by licensees applying the requirements

set forth by the Commission; (5) apply rulings pro-

spectively, not sanctioning licensees until they have

notice that particular material has been judged to be

indecent; and (6) adopt a fixed time of day after

which non-obscene, adult oriented programming may

be aired, or articulate a similar “bright line test.’

8. In contrast, MIM argues in its comments that

the Commission has not gone far enough in its regu-

lation of indecency. MIM asserts that indecent ma-

terial cannot be aired by a broadcaster at any time

because the prohibition set out in 18 U.S.C. §$ 1464 is,

on its face, absolute and unqualified. MIM also sug-

gests that the present definition of indecency be ex-

panded to encompass a wide range of material, in-

cluding that which is “more than indelicate and less

than immodest.” MIM generally urges the Commis-

sion to reject the positions advanced by petitioners.

' MDCD supports the position espoused by NAB.

47a

III. DISCUSSION

9. As the Supreme Court has stressed, pronounce-

ments about broadcast indecency should be confined

to specific factual settings because of the crucial role

of context to the issue.” For this reason, we decline

to address at length the generalized contentions of the

parties. To dispel apparent uncertainty about the

scope and effect of our recent rulings, however, we

will briefly review the applicable standards and the

points raised to the extent they bear on the three

cases before us.

10. As a threshold matter, we acknowledge the

difficulty and the sensitivity of the task at hand. Pro-

vocative programming will inevitably offend some

" FCC v. Pacifica Foundation, 438 U.S. at 742.

' The public notice was not intended to have any independ-

ent legal significance but rather was issued simply to apprise

all affected licensees of the change of enforcement standards

that was reflected in our declaratory rulings. Thus, unlike the

three rulings, the public notice is not a final action as to which

reconsideration lies. See 47 C.F.R. § 1.106 (a) (1). None-

theless, the three rulings could have an impact on all licensees

(sce KPFK-FM, 2 FCC Red at 2702 n.9; KCSB-FM, 2 FCC

Red at 2704 n.11; WYSP(FM), 2 FCC Red at 2707 n.15).

Accordingly, to address uncertainty created by those rulings

we treat the filings before us as requests for reconsideration

of the three specific cases. See 5 U.S.C. § 554(e). The specific

facts and circumstances of the three cases are key because

the Commission was not attempting to set forth a blueprint

as to all matter that would be considered indecent. tather,

ws described below, all the Commission found was that the

three specific programs before it—or, more specifically, por-

tions thereof—were indecent. The fact that these conclusions

were based on revised enforcement standards, which were

unnounced through these decisions, does not change the fact

that our rulings were confined to the specific factual settings

of each case.

48a

listeners or viewers, but we must always be mindful

of the first amendment limitations on the govern-

ment’s ability to regulate the content of speech. The

consistent and long-held policy under the Communica-

tions Act has been to preserve radio and television as

media of free speech and free expression. By law,

however, the Commission is duty-bound to enforce the

restrictions on indecent radio transmissions.’ And,

of course, we must do so consistent with constitu-

tional requirements. Our task is to harmonize these

responsibilities with due regard for the competing

interests involved.

11. We begin our consideration of petitioners re-

quests as we began our 1975 Pacifica ruling, by stat-

ing: “In order to avoid the error of overbreadth, it

is important to make it explicit whom we are protect-

ing and from what.” *” In exercising its authority to

enforce the prohibition against indecency expressed in

Section 1464, the Commission is advancing the gov-

ernment interest in safeguarding children from pat-

ently offensive descriptions or depictions of sexual or

excretory activities or organs, so as to enable parents

to decide effectively what material of this kind their

children will see or hear.*’ The United States Court

1 See 18 U.S.C. § 1464; 47 U.S.C. §§ 312(a) (6), 503

(b) (1) (D).

20 WBAI(FM),56 FCC 2d at 98.

21 See CC v. Pacifica Foundation, 438 U.S. at 749-50; id.

at 757-58 (Powell, J., concurring). Cf. Ginsberg v. New York

390 U.S. 629 (1968) (upholding New York state law prohibit-

ing sale of offensive sexual material that is obscene as to

children). In Ginsberg, the Court emphatically stated that

“constitutional interpretation has consistently recognized that

the parents claim to authority in their own household to di-

rect the rearing of their children is basic in the structure of

our society. /d. at 639. Our goal is to ensure that parents

49a

of Appeals for the Second Circuit has held that this

“interest in protecting children from salacious mate-

rial is no doubt quite compelling.” *

12. MIM urges us to apply Section 1464 in a man-

ner that would prohibit at all times of the day the

broadcast of certain sexually explicit, yet non-obscene

material. When the Supreme Court affirmed the Com-

mission’s Pacifica ruling in 1978, however, it made

plain that our authority under Section 1464 is limited

to the imposition of reasonable time, place and man-

ner restrictions on the broadcast of indecent material

in order to advance the government’s interest in pro-

tecting children and in enabling perents to determine

when and how their children are to be exposed to this

material.” It is clear that our application of Section

1464 must be consistent with the constitutional prin-

ciples derived from the Pacifica decision. Thus, under

Section 1464, we may only do that which is necessary

to restrict children’s access to indecent broadcasts; we

may not go further so as to preclude access by adults

remain in a position to exercise this authority. We agree with

the Court, however, that parental control cannot always be

provided, particularly in this day of ‘‘walkman” radios and

“watchman” televisions. As the Court explained in Ginsberg:

While the supervision of children’s reading may best be

left to their parents, the knowledge that parental control

or guidance cannot always be provided and_ society’s

transcendent interest in protecting the welfare of chil-

dren justify the reasonable regulation of the sale of

material to them.

22 Id. at 640 (citation omitted, emphasis added). Carlin

Communications, Ine. v. FCC, 749 F.2d 113, 121 (1984),

citing Ginsberg v. New York, 390 U.S. 629 (1968).

“4 See FCC v. Pacifica Foundation, 438 U.S. at 757-61

(Powell, J., concurring); id. at 748-50.

50a

who are interested in seeing or hearing such mate-

rial." The unqualified reading of Section 1464

pressed by MIM, under which the broadcast of in-

decent material would be prohibited altogether would,

we believe, run afoul of this constitutional premise.”

With this brief preface, we turn to petitioners’ argu-

ments, which we evaluate in the context of our three

rulings in April.

Patent Offensiveness and the Role of Merit

13. Petitioners seek further clarification of the

term “patently offensive,” as that term is used in the

definition of indecency. Specifically, petitioners in-

quire as to the relevance of a work’s serious literary,

**KPFK-FM, 2 FCC Red at 2699 °" 14-15 & cases cited

therein. Cf. Butler v. Michigan, 352 U.S. 380 (1956) (the

government, in an effort to protect children, may not impose

overly broad restrictions that would reduce adults to reading

only that which is fit for children). See also WBAI(FM),

56 FCC 2d at 103-04 (concurring statement of Comm’rs

Robinson and Hooks) (Despite the fact that the statute (18

USC 1464) on its face expresses no limit on our power to

forbid ‘indecent’ language over the air, the First Amendment

does not permit us to read the statute broadly. Nor does a

simple respect for the wise and salutary principle of govern-

ment restraint in matters of public decorum).

°° Many of these same considerations persuade us likewise

that ‘we must decline the expansive reading MiM would have

us place on the term “indecent” i.e., as including that which

is “im lest,” “unbecoming,” “unfit to be seen or heard,” and

“more than indelicate and less than immodest.” The Supreme

Court’s Pacifica decision did not give the Commission author-

ity to regulate any programming that might be objectionable

to some members of the audience. Rather, the Court only

approved our application of a standard addressing material

containing patently offensive references to sexual or excre-

tory activities or organs.

99 66

————EO

5la

artistic, political or scientific value (7.e., serious

merit) in determining whether particular material is

patently offensive and, thereby, indecent.

14. ‘“Patently offensive” is a phrase that must, of

necessity, be construed with reference to specific

facts. We cannot and will not attempt to provide

petitioners with a comprehensive index or thesaurus

of indecent words or pictoral depictions that will be

considered patently offensive. There is no way to con-

struct a definitive list that would be both comprehen-

sive and not over-inclusive in the abstract, without

reference to the specific context. All we hold here,

therefore, is that, in the three cases before us, we

properly found the material identified as indecent to

be patently offensive.

15. Our approach here is consistent with that of

the courts, which have likewise never attempted to

identify with the degree of certainty requested by

netitioners the complete and definitive range of ma-

terial that fall within the generic, legal definitions

of certain categories of speech. We note, for ex-

ample, that the phrase “patently offensive” is also

used in the obscenity context and that the courts

insist on construing that phrase with reference to

snecific facts, thereby developing its meaning on a

case-by-case basis.*° The fact that its meaning can

only be given greater specificity on a case-by-case

basis does not make the term “patently offensive” un-

constitutionally vague in the indecency context any

26 See generally New York v. P.J. Video, Inc., 475 U.S. 868

(1986); Smith v. United States, 431 U.S. 291 (1977); Ward

v. Illinois, 431 U.S. 767 (1977) ; Jenkins v. Georgia, 418 U.S.

153 (1974); United States v. Petrov, 747 F.2d 824 (2d Cir.

1984), cert denied, 471 U.S. 1025 (1985).

52a

more than it does in the obscenity context.** Broad-

casters, when judging whether certain material is

legally indecent, must exercise the same kind of judg-

ment that they are obligated to exercise when judging

whether certain material is legally obscene. They

must apply a generic definition with reference to the’

euidance provided by existing case law on the matter.

Broadeasters may not reasonably expect to relieve

themselves of this legal obligation by demanding that

we exercise their editorial judgment for them.

16. As we stated in our April rulings, and as we

re-emphasize today, the question of whether material

is patently offensive requires careful consideration of

context.** The Supreme Court has said that the term

“context” encompasses a “host of variables.” ** These

variables, whose interplay will vary depending on

the facts presented, include, as the Court noted, an

examination of the actual words or depictions in con-

text to see if they are, for example, “vulgar” or

“7 Cf. United States v. Various Articles of Obscene Mer-

chandise, 600 F.2d 394, 403-06 (2d Cir. 1979) (noting lack of

precision in the term “patently offensive” as construed in ob-

scenity cases).

“s Contrary to what the April 29, 1987, Public Notice may

have inadvertently suggested, consideration of context Is criti-

cal in all indecency cases, regardless of whether the material

in question involves innuendo, double entendre, or explicit

references to sexual or excretory matters. As noted above,

in light of the importance of context to the task at hand, we

eannot list any particular language or material that will

ulways be found indecent. Indecency, however, is a limited

category of speech, and we would expect that the vast ma-

jority of programs broadcast will be unaffected by these three

rulings.

22 FCC v. Pacifica Foundation, 438 U.S. at 750.

58a

99 30

“shocking, a review of the manner in which the

language or depictions are portrayed,” an analysis

of whether allegedly offensive material is isolated or

fleeting,” a consideration of the ability of the medium

of expression to separate aaults from children,” and

a determination of the presence of children in the

audience.

17. The merit of a work is also one of the many

variables that make up a work’s “context,” as the

Court implicitly recognized in Pacifica when it con-

trasted the Carlin monologue to Elizabethan comedies

and works of Chaucer.** But merit is simply one of

many variables, and it would give this particular

variable undue importance if we were tn single it out

30 See id. at 747 (Stevens, J.) ; id. at 757 (Powell, J., con-

curring).

31 As Justice Stevens noted in Pacifica, ‘‘[a] requirement

that indecent language be avoided will have its primary effect

on the form, rather than the content, of serious communica-

tions. There are few, if any, thoughts that cannot be ex-

pressed by the use of less offensive language.” Jd. at 743

n.18. As we did in 1976, when the Radio-Television News

Directors Association made a similar request, we decline to

rule on petitioners’ request that we exempt all news broad-

casts from indecency findings, because that issue is not directly

presented by any of the cases before us. See Citizen’s Com-

plaint Against Pacifica Foundation, 59 FCC 2d 892 (1976).

We repeat, however, that context will always be critical to an

indecency determination and that the context of a bona fide

news program will obviously be different from the contexts

of the three broadcasts now before us, and, therefore, would

probably be of less concern.

32 FCC v. Pacifica Foundation, 438 U.S. at 750.

33 See generally id. at 758-59 (Powell, J., concurring).

347d. at 750 & n.29.

54a

for greater weight or attention than we give other

variables. We decline to do so in deciding the three

cases before us. We must, therefore, reject an ap-

proach that would hold that if a work has merit, it is

per se not indecent.” At the same time, we must

reject the notion that a work’s “context” can be re-

viewed in a manner that artificially excludes merit

from the host of variables that ordinarily comprise

context.*® The ultimate determinative factor in our

analysis, however, is whether the material, when

examined in context, is patently offensive. In the

three cases before us, we reaffirm our prior rulings

answering this question in the affirmative.

18. The material that the Commission identified

in the KPFK-FM case as indecent occurred in the

context of a 10:00 p.m. radio broadcast of excerpted

portions of a theatrical play. The excerpted portions

that were broadcast contained the concentrated and

repeated use of vulgar and shocking language to por-

tray graphic and lewd depictions of excretion, anal

35 We note, however, that even if we were to consider merit

as a separate factor, for example if we were to apply a vari-

able obscenity test, see Ginsberg v. New York, 390 U.S. 629

(1968), our determination in each of the three cases would

be unaltered. Indeed, even if we were to consider prurient

appeal as an additional, separate factor, our conclusions would

not change. We conclude that the descriptions of sexual con-

duct in each of the three broadcasts described herein would

appeal, in particular, to the prurient interest of children.

36 We do not construe our 1975 WBAI(FM) ruling as in-

consistent with this notion. WBAI(FM), 56 FCC 2d at 98.

Rather, we interpret our prior ruling to mean that we would

not permit merit to “save”? programming that is nonetheless

patently offensive. We likewise reject in our decisions today

the notion that merit is a separate prong of the test for

indecency.

55a

intercourse, ejaculation, masturbation, and oral-

genital sex.*’ Despite Pacifica’s claim that very few

children ordinarily listen to KPFK-FM at 10:00 p.m.,

we nevertheless determined, on the basis of available

data for that market, that there was a reasonable risk

that children may have been in the radio audience at

the time of the broadcast. We also believe that many

of those children who may have listened to the sub-

ject broadeast would have readily understood the dis-

cussion, as would other children who may have ran-

domly tuned in. Once having tuned in, they may

have continued to listen because the references were

more than fleeting or isolated.

19. The material described sexual and excretory

activities and organs in a manner that was patently

offensive according to contemporary community stand-

ards for the broadcast medium. Indeed, we find it

hard to imagine the broadcast for sexually-related

language in a more patently offensive manner than in

the excerpts highlighted in our KPFK-FM ruling.

The fact, that the material presented was excerpted

from a dramatic performance that dealt with homo-

sexual relations and Acquired Immune Deficiency

Syndrome (AIDS) does not affect our determination

that the manner in which these subjects were dealt

with in the excerpts was patently offensive. Nor does

Pacifica’s claim that the play from which the excerpts

were taken has been critically acclaimed and long-

running in Los Angeles area theaters change the

determination. We do not dispute the public value of

programming addressing the serious problems posed

by AIDS or its effect on the homosexual community.

37 Excerpted portions of the broadcast appear in the Ap-

pendix to this decision.

d6a

We emphasize that subject matter alone does not

render material indecent. Only when that material is

presented in a manner that is patently offensive will

it be considered indecent. In KPFK-FM, we simply

found that the excerpted materials, considered in con-

text, were patently offensive; and we held that when

such material is broadcast in such a manner and at

a time when there is a reasonable risk that children

may be in the audience, then that broadcast will con-

stitute actionable indecency within the meaning of

Section 1464.

20. For similar reasons, we found that morning

broadcasts of portions of the Howard Stern show con-

Stituted actionable indecency. The relevant material

at issue in the WYSP FM) ruling occurred in vary-

ing contexts: it was presented, at times, as part of

discussions among Howard Stern and his fellow

broadcast personalities, as part of call-in conversa-

tions between members of Mr. Stern’s audience and

broadcast personnel, and as part of situation comedy

routines staged by the members of the broadcast team.

All of the excerpted material, however, consisted of

vulgar and lewd references to the male genitals and

to masturbation and sodomy broadcast in the context

of what we described, and to which has not been dis-

puted, as “explicit references to masturbation, ejacu-

lation, breast size, penis size, sexual intercourse,

nudity, urination, oral-genital contact, erections,

sodomy, bestiality, menstruation and _ testicles.’ ”

Furthermore, all of the material was presented on the

radio at times when significant numbers of children

were in the listening audience, during the 6:00 a.m.-

388 WYSP(FM), 2 FCC Red at 2706 6 10. Excerpts of the

broadcasts are reprinted in the Appendix,

57a

10:00 a.m. Howard Stern show. Further, although

we agreed that much of the programming involved

innuendo and double entendre—that is, it was oblique

or susceptible to varying interpretations—and there-

fore did not constitute indecency, we also determined

that the sexual import of certain references in the

material was inescapable and understandable given

the surrounding context of the discussion. In short,

it was not merely sexual innuendo or double en-

tendre, despite Infinity’s assertions to the contrary.

Additionally, the fact that the programs under ex-

amination did not contain merely an occasional off-

color reference or expletive, but instead dwelt on sex-

ual and excretory matters in a pandering and titillat-

ing fashion indicated that children who may have

randomly tuned into them would have likely con-

tinued to listen.

21. Given this context, the Commission determined

that portions of the broadcasts contained material

that was presented in a manner that was patently

offensive according to contemporary community stand-

ards for the broadeast medium. Although different

from the programming at issue in KPFK-AM, the

sexual references excerpted in our WYSP (FM) rul-

ing shared their same patently offensive character.

Nothing about the context changed this determination.

22. Finally, the song lyrics in AKCSB-F'M were in-

decent for similar considerations.” The material at

issue in that case was presented in the context of a

musical recording broadcast at a time of day when

the Commission determined that there was a reason-

able risk that children may have been in the radio

audience. The material contained both lewd refer-

ences to the male genitals and lewd descriptions of

® The lyrics are reprinted in the Appendix.

58a

intercourse and oral-genital sex. The lyrics, like the

programming at issue in the other cases before us,

graphically portrayed these sexual organs and activi-

ties in a manner that was patently offensive.

23. Furthermore, the explicitness of some of the

lyrics rendered any purported innuendo or double en-

tendre in the remainder of the song clear and capa-

ble of a specific, sexual meaning. The lyrics were in-

telligible, and their meaning could have been clearly

understood by children who may have been in the

listening audience. The fact that the material oc-

curred in the context of a musical recording did not

mitigate the patently offensive manner in which that

material was presented. Therefore, we determined

that the broadcast constituted actionable indecency.

Contemporary Community Standards for the Broad-

cast Medium

24. Petitioners also ask for clarification of the

phrase “‘contemporary community standards for the

broadcast medium,” as that term is used in the in-

decency definition and was used in each of our three

April rulings. We clarify that the Commission used

the term “contemporary community standards” in a

manner analogous io the definition set forth in the

Supreme Court’s decision in Hamlin v. United

States.” In that case, the Court explained that the

purpose of ‘‘contemporary community standards was

to ensure that material is judged neither on the basis

of a decisionmaker’s personal opinion, nor by its ef-

fect on a particularly sensitive or insensitive person

or group.*' Rather, decisionmakers are to draw on

their views of the average person in the community.

9418 U.S. 87 (1974).

41 Jd, at 107.

59a

The Court also noted that, by referring to contem-

porary community standards in Miller, it did not in-

tend to require, as a constitutional matter, the use

of any precise geographic area in evaluating ma-

terial.** Hence, in a Commission proceeding for in-

decency, in which the Commission applies a concept

of “contemporary community standards for the broad-

cast medium,” indecency will be judged by the stand-

ard of an average broadcast viewer or listener. Thus,

we determined in each of the three cases before us

that an average listener would find material patently

offensive. In making the required determination of

indecency, Commissioners draw on their knowledge

of the views of the average viewer or listener, as well

as their general expertise in broadcast matters. The

determination reached is thus not one based on a

local standard, but one based on a broader standard

for broadcasting generally.

The Role of Reasonable Licensee Judgments

25. Petitioner ACT urges us to defer to reason-

able, good faith judgments of licensees in deciding

whether a licensee has violated Section 1464. In this

way, ACT contends, we will help to avoid inhibiting

programming decisions and intruding into the broad-

cast editorial process. In a related vein, petitioner

NAB advocates a policy under which Commission rul-

ings would have prospective effect only. Under this

approach, the Commission would refine its standards

of what is indecent on a case-by-case basis, but would

not penalize a licensee for a broadcast unless the li-

censee had specific notice that the Commission or a

court had previously found that broadcast to be in-

decent. Absent a ruling squarely on point, a licensee’s

Id. at 104-05.

60a

decision to air programming would be considered -rea-

sonable and automatically beyond the reach of Section

1464 under this scenario.

26. ACT does not contend that deference to rea-

sonable licensee judgments in interpreting Section

1464 is required as a matter of law, and we find

no basis on the record before us to allow such judg-

ments to preclude a finding that a licensee has vio-

lated its statutory duties. Indeed, given the variety

of programming aired by licensees, such a_ policy

would largely read the prohibition against indecent

transmissions out of Section 1464. Congress cannot

have intended such a result, and we find no basis for

reading such a provision into the statute. Although

we acknowledge that the statute requires a broad-

caster to make judgments as to whether certain ma-

terial would violate the statute, the fact that the de-

cision may not always be an easy one cannot excuse

the broadcaster from having to exercise its judg-

ment, any more than it can excuse the Commission

from exercising its enforcement responsibilities. We

note, however, that it is standard procedure for the

Commission, in deciding whether to impose a sanction

for violation of the law and, if so, what those sanc-

tions shonld be, to give weight to the reasonable de-

terminations of licensees endeavoring to comply with

the law.** Because licensees demonstrating reasonable

judgment have no cause to fear the imposition of

43Cf. Taft Broadcasting Co., 16 RR 2d 507, 511 (1969)

(although broadcaster violated lottery statute, staff-imposed

sanctions rescinded because there were no prior decisions

that would have enabled licensee reasonably to anticipate

FCC’s construction of 18 U.S.C. § 1304). See generally 47

U.S.C. § 503(b) (2) (in assessing a forfeiture, Commission

directed to take all relevant circumstances into account).

6la

unjustified sanctions,‘ we reject the petitioners’ con-

tentions that the editorial decisions of broadcasters

will be inappropriately chilled by continuation of this

approach.”

27. We used precisely this approach in the cases

before us. Although we did not consider the licensees

reasonableness in concluding that the material was

indecent, pivotal to our decision not to impose sanc-

tions was the fact that each licensee demonstrated a

reasonable basis to believe, based on prior Commis-

sion and staff rulings, that the programming under

review was permissible to broadcast. For example, in

each case, we weighed favorably the licensee’s reason-

able belief that only repetitive use of the expletives at

issue in the 1975 Pacifica case would be found in-

decent, and the fact that none of these cases involved

44 See generally National Ass’n of Independent Television

Producers and Distributors v. FCC, 516 F.2d 526 (D.C.Cir.

1975), wherein the Court of Appeals observed that “[t]here

is no reason for a licensee who is not out to cut corners to

fear that severe sanctions will be imposed for good faith

error.” Id. at 450.

*5 Obviously, to the extent a broadcaster is “chilled” from

airing indecent programs when there is a reasonable risk

that children may be in the audience, that is not an “inap-

propriate chill.”” We emphasize, moreover, that we do not de-

fine reasonable in the‘manner that NAB appears to urge—

that is, we do not adopt a policy under which a licensee’s

broadcast of patently offensive sexual or excretory references

or depictions would be found reasonable, and hence not a

violation of Section 1464, unless the licensee has notice be-

forehand in the form of explicit Commission precedent that

the program is indecent.

Unquestionably, however, it would be prima facie unrea-

sonable for any licensee to air material that has already been

found indecent when there is a reasonable risk that children

may be in the audience.

repetitive expletives in a manner closely resembling

the “Filthy Words” monologue.*® Moreover, in WYSP

(FM), Infinity Broadcasting’s added reliance on staff

rulings addressing analogous broadcasts, some of

which involved Infinity, further buttressed our deci-

sion not to take action against the licensee. Finally,

in KCSB-FM and KPFK-FM, the fact that the licen-

eees aired broadcasts containing indecent utterances

after 10:00 p.m. gave added weight to our decision

not to sanction the licensees, in view of previous Com-

mission rulings suggesting that it might be permis-

sible to do so after that time.*’ For all these reasons,

46 Infinity Broadcasting noted, for instance, that its em-

ployment contract with Mr. Stern expressly precludes his

use of the seven words at issue in the 1975 Pacifica case

during his broadcast program.

47 Petitioners have asked that we establish some hour, spe-

cifically 10:00 m., after which certain non-obscene, adult

oriented programming may be aired. We note, first, that the

Commission’s holding in adjudicatory matters can resolve

only the issues before it. In two of these proceedings, we

have found that there remains a reasonable risk that children

may be in the audience at 10:00 p.m. and, therefore, that

10:00 p.m. can no longer be considered the hour after which

indecent programming may be aired. Nonetheless, we will

avail ourselves of this opportunity to express more generally

our current intention with respect to this issue based upon

information currently available to the Commission.

Although we remain convinced that a determination in in-

dividual cases based on relevant data is theoretically the most

desirable means of determining when there is no longer a

reasonable risk that children may be in the audience, we are

constrained to agree with petitioners that the effect of that

approach may well be to cause broadcasters to forego the

broadcast of certain protected speech altogether, rather than

to channel it to late night hours. The result—an effective

ban—would be contrary to current law that indecent but not

obscene material can be restricted but not banned. See FCC

63a

‘ather than imposing a sanction, we simply warned

each licensee, as well as broadcasters generally, that

our enforcement standards have changed and that

these broadcasts would be actionable under the new

standards.**

Ill. CONCLUSION

28. Nothing said herein changes the outcome in

any of the decisions in question. The Commission,

therefore, reaffirms each of the above-captioned. rul-

v. Pacifica Foundation, 438 U.S. at 757-61 (Powell, J

curring) ; id. at 748-50.

Therefore, whereas previously we indicated that 10:00 p.m.

was a reasonable delineation point, we now indicate that

12:00 midnight is our current thinking as to when it is rea-

sonable to expect that it is late ehough to ensure that the

risk of children in the audience is minimized and to rely on

parents to exercise increased supervision over whatever chil-

dren remain in the viewing and listening audience. Indeed,

parents will be on notice that their supervision of any chil-

dren still awake must be increased after midnight. This

approach, we believe, accommodates the competing interests

of (1) the government, which has a compelling interest in

protecting children from indecent material; (2) parents, who

are entitled to decide whether their children are exposed to

such material if it is aired: (3) broadcasters, who are en-

titled to air such material at times of day when there is not

a reasonable risk that children may be in the audience: and

(4) adult listeners, who have a right to see and hear pro-

gramming that is inappropriate for children but not obscene.

We emphasize, however, that obscene programming is not

protected by the first amendment and that, under Section

1464, it is prohibited from being broadcast at uny time of

the day or night.

., con-

*8 Obviously, in cases where we do not impose a sanction, as

here, the conduct at issue cannot be a basis for adverse ac-

tion at renewal time.

64a

ings. In each case, we reviewed a tape recording of

the programming involved to determine whether the

context was such that the licensee had aired sexual or

excretory material in a manner that was patently

offensive as measured by contemporary community

standards for the broadcast medium." Because we

found that each had aired such material in a manner

that was patently offensive according to contemporary

community standards for the broadcast medium, we

determined that each had broadcast indecent material.

We emphasize the narrowness of our holdings in that

they are limited to the specific broadcasts at issue.

We hold simply that the broadcasts here, illustrative

portions of which are attached hereto in the Appendix,

meet the definition of indecency affirmed by the

Supreme Court in Pacifica.

29, Furthermore, these indecent broadcasts were

aired when there was a reasonable risk that children

may have been in the audience. Accordingly, they

were broadeast in violation of Section 1464. We also

reaffirm our conclusion in April that prior rulings

could have led the licensees reasonably to conclude

that the broadcasts were permissible. Thus, while we

warned these and other licensees that the programs

were, in fact, indecent and must be channeled, and

even then preceded and accompanied by appropriate

49> conserve our resources, we will ordinarily require

complaining parties to provide a tape, transcript or signifi-

cant excerpts of programming, together with the date and

time of the subject broadcasts, and ‘he call letters of or other

identifying information about the broadcast station and li-

censee. In this way, we will have a sufficient basis for identify-

ing prima facie violations of the statute before requiring

broadcasters to respond to complaints. In addition, to facili

tate prompt determinations, complaints should ve lodged as

soon as possible after a broadcast, as in the cases before us;

they should not be withheld until renewal time.

65a

warnings, we did not and do not impose any sanctions

upon these licensees.

30. ACCORDINGLY, IT IS ORDERED, that the

Petition for Reconsideration, filed June 1, 1987 by

Action for Children’s Television, et al., and the Peti-

tion for Clarification, filed June 1, 1987 by the Na-

tional Association of Broadcasters, ARE GRANTED

to the extent indicated herein and otherwise ARE

DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William J. Tricarico

Secretary

66a

APPENDIX

I. Excerpts from August 31, 1986, 10:00 p.m.

“IMRU” broadcast; Pacifica Foundation, KPFK-FM,

Los Angeles, California:

“Yeah, it was loving even if you didn’t know whose

cock it was-in the dark or whose asshole you were

sucking.

“T’ll give you the gentlest fuck west of the Mis-

Sissippi.

“We cuddled and played around a bit before he

started working on my ass.

“T remember he was kneeling between my legs and

he worked my asshole with lube for the longest time—

just gettin it to relax so there was no tension, no fear.

“He lowered himself on top of me and slid his dick

in all the way, but so gently, so smoothly, there

wasn’t even a bit of pain.

“His cock felt warm inside me—and full—so nice

and full. So he began sliding his cock back and forth

inside of my ass—but so gently, so gently.

“T don’t think I’ve ever had such a gentle, sensitive

fuck before or after.

Well, he must have gone at it for twenty minutes

at the very least, just slidin his cock back and forth

inside of my ass.

“And then he whispered to me, “You’re gonna feel

me come inside of you. And I did. Man, I could feel

the cum pulse up his shaft inside my ass. I could

count the pulses and it felt warm and good.

Actor 1: “You better get yourself ready for some

brother-to-brother, sweaty, down and dirty pig sex,

you understand?

67a

Actor 2: “Yeah!

1: None of this nicey-nice, lovey-dovey stuff. I

want to make you eat ass, suck my balls, and drink

my piss like you never have before. You get me?

2: “Hot throbbing cocks, hard pounding muscles.

1: “You’ve got it.

II. Excerpts from various weekday 6:00-10:00

am.” Howard Stern Show broadcasts; Infinity Cor-

poration, WYSP (FM), Philadelphia, Pennsylvania:

Excerpt 1

Howard Stern: ‘God, my testicles are like down to

the floor. Boy, Susan, you could really have a party

with these. I’m telling you honey.

Ray: “Use them like Bocci balls.

Excerpt 2

Howard Stern: “Let me tell you something, honey.

Those homos you are with are all limp.

Ray: “Yeah. You’ve never even had a real man.

Howard Stern: “You’ve probably never been with

aman with a full erection.

Excerpt 3 Susan: “No. I was in a park in New

Rochelle, N.Y.

Howard Stern: “In a

This text is long and has been trimmed here. Open the source document for the complete record.

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