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ACTION FOR CHILDREN'S TV v. FCC

May 18, 1993

ACTION FOR CHILDREN'S TELEVISION, et al., Plaintiffs,
v.
FEDERAL COMMUNICATIONS COMMISSION Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before the court on plaintiffs' motion for a preliminary injunction, and plaintiffs' and defendant's cross-motions for summary judgment. For the reasons stated in this Memorandum Opinion, the court denies plaintiffs' motions for a preliminary injunction and summary judgment and grants defendant's motion for summary judgment.

 I. FACTUAL BACKGROUND.1

 Plaintiffs are a group of broadcasters and interested listeners/viewers who challenge the procedure under which the Federal Communications Commission ("FCC") regulates indecent broadcasting. Plaintiffs contend that the FCC procedure fails to guarantee prompt judicial review of the forfeiture orders FCC issues against broadcasters it believes have broadcast indecent material. Plaintiffs contend that the First and Fifth Amendments require prompt review of such forfeiture orders. *fn2"

 The FCC is an independent federal regulatory agency created by Congress to regulate interstate and foreign radio communications pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et seq. The Communications Act gives the FCC the authority to take appropriate action when licensees, also known as broadcasters, broadcast "obscene, indecent, or profane" material in violation of 18 U.S.C. § 1464. See 47 U.S.C. §§ 312(a)(6) & 503(b)(1)(D).

 Under the Communications Act, the FCC has the authority both to determine whether violations of section 1464 have occurred, see, e.g., 47 U.S.C. 503(b)(1)(D), and to impose sanctions for such violations, ranging from forfeitures to short-term renewal of licenses to revocation of licenses. 47 U.S.C. §§ 312(a)(6), 312(b)(2), 503(b)(1)(D). The FCC also has delayed renewal of broadcast licenses and approval of transfer applications in order to investigate indecency complaints against broadcasters. SOF P 9.

 The FCC historically has adjudicated indecency forfeitures only under the procedures described in 47 U.S.C. § 503(b)(4). The Communications Act also authorizes the FCC to adjudicate indecency forfeitures in a hearing before an Administrative Law Judge pursuant to 47 U.S.C. § 503(b)(3), but the FCC has rarely if ever used this route. SOF P 8.

 When the FCC receives a complaint from a viewer or listener that a licensee has broadcast an indecent program, the FCC staff members examine the complaint to determine whether the broadcast in question might fall within the parameters of the FCC's indecency enforcement practice. Those parameters include whether the broadcast was presented between the hours of 6:00 a.m. and 8:00 p.m. and whether the broadcast contained indecent material, i.e. material that includes patently offensive descriptions of sexual or excretory activities or organs as measured by contemporary community standards for the broadcast medium. SOF P 9. The FCC uses those parameters because of the considerable case law that has developed around indecent speech and its First Amendment protections. The court addresses this case law below. SOF P 9.

 After determining that an indecency complaint fall within these parameters, the FCC staff members in the Complaints and Investigations Branch, Enforcement Division, Mass Media Bureau make a threshold recommendation whether to proceed with an investigation of the complaint. If the Mass Media Bureau, in consultation with the General Counsel's Office and/or the Commissioners' Assistants, decides that the complaint does not warrant investigation, the complaint is dismissed. If, on the other hand, a determination is made to investigate a complaint, FCC staff members will often send a Letter of Inquiry ("LOI") to the broadcaster named in the complaint. Because the complaining party typically does not serve the broadcaster with a copy of the complaint filed with the FCC, in most instances the LOI serves as the broadcaster's first notice that a complaint has been filed. The LOI is a request for additional information about the broadcasts in question and does not represent a final determination of an indecency violation. The staff uses LOIs in order to obtain information and afford licensees an opportunity to respond to allegations of violations prior to the decision on whether a violation occurred. SOF P 10.

 After the broadcaster responds to the LOI, the staff members must decide whether a violation has in fact occurred. If the staff members conclude that a violation has occurred, they send the broadcaster a Notice of Apparent Liability ("NAL"). *fn3" The NAL acts as a "preliminary notice issued by the Commission, or by Bureaus/Offices under delegated authority, alleging the violation of the Commission's rules and requesting payment from the alleged violator." SOF Exh. 1, FCC Directive 1157.1, at 2. There is no formal evidentiary hearing on an NAL. The broadcaster's only recourse is to either pay the forfeiture or submit, usually within 30 days from the issuance of the NAL, an opposition to the NAL in which it can explain why a forfeiture should not be imposed or should be reduced. See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80. In addition, broadcasters or their attorneys often make oral and written presentations to the Commissioners and other FCC staff members in an effort to persuade the FCC not to issue a forfeiture order. The NAL does not represent a final determination of an indecency violation. SOF P 11.

 After reviewing a broadcaster's response (if any) to the NAL, the FCC decides whether a forfeiture is appropriate. Where the Commission has issued an NAL, and the broadcaster has not paid, the FCC has never declined to impose liability in its final decision. In making this determination, the FCC is requested to consider a number of factors, including "the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4). In determining whether to increase the amount of a forfeiture because of a pattern of indecent broadcasting, the FCC has twice cited prior alleged indecent broadcasts that are the subject of contested and judicially unreviewed indecency forfeitures. See, Notice of Apparent Liability to Evergreen Media Corp., FCC 93-97, at 4 & n.5 (Feb. 25, 1993); Notice of Apparent Liability to Sagittarius Broadcasting Corp., 71 Rad. Reg. 2d (P & F) 989, 990 & n.3 (1992). SOF P 26.

 After issuance of a forfeiture order by the Commission or the Mass Media Bureau, a broadcaster may petition for reconsideration of the order, seeking reduction or rescission of the forfeiture. If a forfeiture order is issued by the Mass Media Bureau, a broadcaster may file an application for review with the FCC, seeking reversal or modification of the Bureau's decision. The issuance of a forfeiture order by the Commission, or a Mass Media Bureau forfeiture order that the broadcaster has not appealed to the FCC, represents a final agency determination that the broadcaster has violated 18 U.S.C. § 1464. SOF P 12.

 Under 47 U.S.C. § 503(b)(96), the FCC may not impose a forfeiture penalty for a violation that occurred (1) more than one year prior to the date of issuance of the NAL or (2) prior to the date of commencement of the last term of license for which the broadcaster has been granted a license by the FCC, whichever is earlier. In addition, the FCC has internal guidelines for tracking and processing NALs. FCC Directive 1157.1, at 4, states that FCC staff members "are required to initiate forfeiture orders expeditiously, generally within 60 days after issuance of NALs . . . ." SOF P 18.

 In the FCC's experience, many broadcasters that have been assessed forfeitures for indecency violations have paid those forfeitures, either shortly after the issuance of an NAL or in compliance with a forfeiture order. If a broadcaster does not seek reconsideration or review of a forfeiture order, and fails to pay the forfeiture order within 60 days after issuance of the forfeiture order, and does not indicate in writing its intent not to pay, FCC staff members proceed to send three progressively stronger dunning letters at 30 day intervals in an effort to secure payment of the forfeiture. If a broadcaster still has not paid the forfeiture after receiving three dunning letters, or has indicated in writing its intent not to pay, the FCC refers the matter to the United States Attorney for initiation of a collection action in United States District Court. FCC Directive 1157.1, at 4-5. To date, only two broadcasters have refused to pay forfeitures imposed for indecent broadcasts after the FCC has exhausted its dunning letter procedures. One other broadcaster indicated in writing its intent not to pay after receive one dunning letter. The FCC has asked the United States Attorney to initiate collection actions against all three broadcasters. SOF P 20. Pursuant to 28 U.S.C. § 2462, the United States Attorney must file an action to collect a forfeiture imposed by the FCC within five years from the date when the claim first accrued.

 Within this enforcement procedure is the potential for a greatly prolonged forfeiture process, a potential that plaintiffs claim the FCC has amply realized. In the past, the FCC has taken between 6 and 35 months to issue an NAL from the time of the initial complaint, with the average wait being 14 months. After issuing an NAL, the Commission has taken from 6 to 23 months to issue the final forfeiture order, with the average wait for the final order being 11 months. *fn4" Once a forfeiture order becomes final, a broadcaster could wait another period (but no longer than five years from when the claim accrued) before the United States Attorney files suit to enforce the order and thereby precipitate its judicial review.

 There are few if any checks on the duration of a forfeiture proceeding. There is no statute or regulation that (1) imposes time limits on the FCC's processing of indecency complaints; (2) requires expedition in such processing; (3) imposes time limits on the United States Attorney's filing of forfeiture actions; or (4) requires expeditious filing of forfeiture actions. SOF P 23. Once a forfeiture action ultimately is filed in federal court, no statute requires the District Court to decide the action within a specified period of time, and there is no requirement of expedition. SOF P 24. Plaintiffs contend that this scheme renders them powerless to speed the forfeiture order through the process and ensure its prompt judicial review.

 Unlike obscenity, indecent speech is fully protected by the First Amendment. See, e.g., Sable Communications v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989). Nonetheless, the FCC constitutionally can restrict indecent broadcasting to certain times of the day. In FCC v. Pacifica Foundation, 438 U.S. 726, 749-50, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978), the Supreme Court found that the government's interest in protecting unsupervised children from indecent broadcasting allowed the FCC to limit indecent broadcasts to those times of day when such an audience would be in low attendance.

 Since Pacifica, there has been extensive litigation in this Circuit regarding the FCC's definition of both indecency and the "safe harbor" time period during which indecent programs can be broadcast. Of particular importance are two cases that the lead plaintiff in this case, Action for Children's Television ("ACT"), brought to the D.C. Circuit. See generally William Banks Wilhelm, Jr., Note, In the Interest of Children: Action for Children's Television v. FCC - Improperly Delineating the Constitutional Limits of Broadcast Indecency Regulation, 42 Cath. U. L. Rev. 215 (1992) (discussing ACT I-III).

 In Action for Children's Television v. FCC, 271 U.S. App. D.C. 365, 852 F.2d 1332 (D.C. Cir. 1988) ("ACT I"), the Circuit Court held that the FCC may regulate indecent broadcasting only to the extent necessary to protect unsupervised children, 852 F.2d at 1240, and that the FCC had not adequately justified its decision to restrict indecent broadcasting to between midnight and 6:00 a.m. 852 F.2d at 1340-44. After ACT I, Congress passed a law requiring the FCC to completely prohibit indecent broadcasting and eliminate any safe harbor at all. In Action for Children's Television, 290 U.S. App. D.C. 4, 932 F.2d 1504 (D.C. Cir. 1991) ("ACT II"), the Court of Appeals invalidated that law and again instructed the FCC to "identify some reasonable period of time during which indecent material may be broadcast." 932 F.2d at 1509. The FCC still has not accomplished this and pursuant to another new federal statute; Pub. L. No. 102-356, 106 Stat. 949, 954 (1992); has limited the safe harbor to between midnight and 6:00 a.m. See Report and Order in the Matter of Enforcement Against Broadcast Indecency in 18 U.S.C. § 1464, FCC 93042 (adopted Jan. 19, 1993). Now ACT III is pending in the Court of Appeals. In ACT III, No. 93-1092 (filed Jan. 27, 1993), Action for Children's Television argues among other things that the safe harbor is unconstitutionally narrow. The D.C. Circuit has stayed FCC's enforcement of the midnight to 6:00 a.m. safe harbor pending oral argument, which is set for September 13, 1993. Because of the stay, the FCC has been enforcing an 8:00 p.m. to 6:00 a.m. safe harbor. SOF P 9. None of the issues raised in these cases are before the court now. These cases simply put plaintiffs' claim in a legal context.

 Plaintiffs bring two claims, both of which arise out of the pace of the forfeiture process. First, plaintiffs claim that the forfeiture process violates the First and Fifth Amendments because it constitutes a system of censorship without prompt judicial review. Plaintiffs contend that the forfeiture scheme causes self-censorship because of two pre-existing factors present in the FCC regulatory scheme.

 The first factor is that the FCC frequently uses forfeiture orders to announce new indecency standards the FCC expects all broadcasters to follow, and threatens them with sanctions should they refuse to comply. See, e.g., Notice of Apparent Liability to Sagittarius Broadcasting Corp., 71 Rad. Reg. 2d (P & F) 989 (1992); In re Applications of Cook Inlet Radio License et al. for Assignment, 71 Rad. Reg. 2d (P & F) 992 (1992).

 The second factor involves the actions of the FCC Commissioners. According to plaintiffs, the FCC Commissioners use the unreviewed NALs as binding standards and make public statements to the effect that all broadcasters must follow these standards or risk adverse FCC action. Plaintiffs present evidence that the FCC Commissioners use their positions as a bully pulpit to condemn broadcasters who are involved in the forfeiture proceedings because of allegedly indecent broadcasts and to urge all other broadcasters to avoid such sanctionable behavior. SOF P 13 & Exh. 2. Through these statements, the Commissioners like to think of themselves as simply providing "guidance" to broadcasters, although they also threaten "adverse FCC action" if broadcasters should refuse to comply. SOF P 14.

 Plaintiffs contend that the combination of these two factors causes broadcasters to self-censor because they have no hope of getting prompt judicial review of an indecency forfeiture order. According to plaintiffs, broadcasters would rather censor their own broadcasts than risk the wrath of the FCC and its Commissioners, who have "warned that broadcasters who engage in indecent broadcasting contrary to FCC indecency rulings might be subjected to various sanctions, including forfeiture penalties; denial or delay of applications to renew, acquire or transfer broadcast licenses; short-term renewal of broadcast licenses; or revocation of broadcast licenses." SOF at P 27. Plaintiffs contend broadcasters must self-censor to avoid such prospects when they have no hope of prompt judicial review. This alleged self-censorship and chilling of the broadcasters' First Amendment rights leads plaintiffs to contend that the forfeiture procedure violates the Constitution. Specifically, plaintiffs claim that 47 U.S.C. §§ 503(b)(3) and (4), which outline the forfeiture procedure, are unconstitutional.

 Plaintiffs also raise a second, related claim. Plaintiffs' second claim is a statutory claim and not a constitutional one. 47 U.S.C. P 504(c) provides that "in any case where the Commission issues a notice of apparent liability looking toward the imposition of a forfeiture under this chapter, that fact shall not be used, in any other proceeding before the Commission, to the prejudice of the person to whom such notice was issued, unless (i) the forfeiture has been paid, or (ii) a court of competent jurisdiction has ordered payment of such forfeiture, and such order has become final." Plaintiffs contend that the FCC has violated this provision by relying "upon contested and judicially unreviewed indecency forfeiture orders to punish or threaten broadcasters with increased forfeiture penalties, revocation or non-renewal of broadcast licenses, and delayed or denied processing of various assignment or transfer applications." Complaint P 56.

  Plaintiffs filed for a preliminary injunction when they filed their Complaint. Plaintiffs and defendant then agreed to file cross-motions for summary judgment and consolidate plaintiffs' application for a preliminary injunction with a hearing on the merits of plaintiffs' complaint. *fn5" The parties also stipulated to all facts relevant to this dispute in lieu of discovery. The court appreciates the responsible way counsel developed the factual record herein, allowing the court to focus its energies on the difficult legal issues presented. Counsel have also very ably assisted the court with superb legal briefs and oral arguments. Counsel for both sides set an example worth emulation.

 The court now will address the parties' cross-motions for summary judgment. Because both motions raise the same issues, the court will consider the two motions simultaneously. The court will not reach plaintiffs' motion for a preliminary injunction because the court's decision on the summary judgment issues renders that motion moot.

 II. DISCUSSION.

 As noted above, plaintiffs and defendants have stipulated to the facts relevant to this matter, so no disputes as to the facts exist. Accordingly, the court will grant summary judgment in favor of either party only if either party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Before reaching the merits of plaintiffs' claims, however, the court must address its jurisdiction over this matter as well as plaintiffs' standing to bring this suit. The FCC has raised both of these issues, and the court must resolve them before moving on to the merits.

 A. Jurisdiction.

 In its motion to dismiss, or, in the alternative for summary judgment, the FCC challenges this court's subject matter jurisdiction over both of plaintiffs' claims. The maze of jurisdictional rules governing the review of FCC matters is difficult to navigate, but the court concludes ...


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