had been sent to all local police departments. Id. at 63. A police offer would usually visit the business a short time after its receipt of the notice to learn of any action taken. The merchant that brought the action provided evidence to the court that it once it received such a notice it would recall any publications listed and comply with the notice "'rather than face the possibility of some sort of a court action.'" Id. The lower court found as fact that the Commission's actions were "'clearly to intimidate'" the wholesalers, booksellers, and distributors, and that the Commission's activities "'resulted in the suppression of the sale and circulation of the book listed in said notices.'" Id., at 63-64.
The Supreme Court held that the Commission's enabling statute was facially invalid and unconstitutional as violative of the First Amendment. The Court emphasized that the regulation of obscene publications requires "the most rigorous procedural safeguards" id. at 66, but found that such safeguards were not present to keep the Commission at bay. The Court recognized that the Commission did not have the power to actually seize any books, but found a First Amendment violation anyway because the Commission's coercive powers had achieved the same result through more informal channels. Id. at 68-69. Without any procedural safeguards to protect the plaintiffs from the Commission's coercion, the Supreme Court concluded that the Rhode Island scheme was a de facto system of prior restraint and informal censorship that violated the First Amendment. Id. at 70-71.
Infinity tries to build its First Amendment claim by drawing comparisons between the FCC forfeiture scheme and that held unconstitutional in Bantam Books. Infinity contends that the FCC too is guilty of using a statutory scheme to censor. Infinity argues that a system of prior restraint now exists for broadcasters through the FCC's use of NALs to create new indecency standards and subsequent penalization of broadcasters who fail to comply with those standards. The FCC censors through intimidation, Infinity contends, and the broadcasters have no choice but to accede if they wish to retain their licenses and livelihood. Infinity believes that the FCC's use of NALs to set standards and deter future programming is unconstitutional because the forfeiture scheme does not provide for prompt review of those NALs. Infinity reasons that just as Bantam Books turned on the dearth of procedural safeguards protecting the Rhode Island merchants, so does this case turn on the lack of procedural safeguards protecting broadcasters. The court recognizes that there are some similarities between this matter and Bantam Books, but the court finds the distinctions between the two more compelling.
The first and most significant distinction is that between the mediums of expression at issue in these two cases. In Bantam Books, the Rhode Island Commission was regulating publications, a medium of expression that historically has suffered from few restrictions. That is not the case with the broadcast medium, which is at issue in this case.
The Supreme Court has "long recognized that each medium of expression presents special First Amendment problems . . . And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection." Pacifica, 438 U.S. at 748 (citation omitted). Broadcasts receive limited First Amendment protection as compared to publications, for example, because broadcast frequencies are a limited public resource. The scarcity of that resource requires that the government ensure its use is in the public interest. See Pacifica, 438 U.S. at 731 n.2. The government does so through regulation.
The need for broadcast regulation becomes particularly acute when the broadcast involved includes indecent speech. There are two reasons for this. The first is that the broadcast medium has a "uniquely pervasive" presence in the American home. Id. at 748. The FCC has the power to heavily regulate indecent broadcasts to ensure that those who wish to avoid indecent broadcasts may do so without having to leave their home or turn off the television and radio. The second reason is that broadcasting is "uniquely accessible to children, even those too young to read." Id. at 749. The government's established interest in the "well-being of its children," Ginsberg v. New York, 390 U.S. 629, 639, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968), coupled with the ease of access that children have to broadcasts amply justify the FCC's regulation of this otherwise protected speech. Id. at 749-50. Based on this last factor, the Pacifica Court itself contrasted the government's limited power to regulate indecent publications, as in Bantam Books, with its extensive power to regulate indecent broadcasts. Id. at 749.
Infinity does not address this issue. Infinity apparently assumes that broadcasts enjoy complete First Amendment protection with all its appointments. Contrary to plaintiff's assumption, there is no identity of First Amendment protection across mediums of expression, especially when the medium involved is one that the Supreme Court places at the bottom of the protection spectrum. Plaintiff's argument for the wholesale application of the Bantam Books reasoning overlooks this distinction. This court will not extend the Bantam Books ruling to a medium of expression that is so much more limited in the First Amendment protection it receives.
The second distinction consists in the differences between the scheme at issue in Bantam Books and that at issue here. The Supreme Court labeled the Rhode Island system one of prior restraint for four independent and particular reasons. See id. at 71. None of those reasons are present here, and the court will not apply Bantam Books to this matter in their absence.
First, the scheme in Bantam Books had no provision for judicial review of the Commission's decisions. Id. at 71. Judicial review could have occurred only if the Commission recommended a merchant for criminal prosecution and if charges were then filed. Plaintiff contends that the same is true here: judicial review can occur only if the FCC refers a forfeiture order to the Department of Justice which then has to initiate an enforcement procedure. The difference is that in Bantam Books, Rhode Island never initiated any criminal prosecutions and did not seem to intend to. In Bantam Books there was a very real possibility that a court would never get a chance to review the Commission's orders. Here, there is already one enforcement proceeding before a district court, United States v. Evergreen Media Corp., No. 92-cv-05600 (N.D. Ill. filed Aug. 19, 1992); SOF P 21, two more cases have been referred to the Department of Justice for prosecution, SOF P 20, and there is no evidence in the record that the FCC is trying to avoid judicial review of its indecency forfeiture orders.
The second factor contributing to the Bantam Books holding was that scheme's failure to provide the merchant with notice that its publications would be listed as objectionable. 372 U.S. at 71. That same failure does not afflict the FCC forfeiture scheme. The FCC routinely sends the targeted broadcaster both an LOS and an NAL, and after its receipt of each the broadcaster has an opportunity to represent its position to the FCC. SOF PP 10-11. The broadcaster and its attorneys also frequently make supplemental written and oral presentations to the Commissioners and other FCC staff members in an effort to persuade the FCC not to issue a forfeiture order. SOF P 11.
The third factor leading to the Bantam Books holding was the Rhode Island Commission's failure to explain its categorization of books as obscene or objectionable. 372 U.S. at 71. This scheme does not share that failing either. Here, the D.C. Circuit already has upheld the FCC's definition of indecent broadcasting, see supra p. 3, against overbreadth and vagueness challenges. ACT I, 852 F.2d at 1335-40; ACT II, 932 F.2d at 1508. The same could not be said of Rhode Island's definition of obscenity. Bantam Books, 372 U.S. at 64. Here, the FCC also must explain why the subject broadcast was indecent before issuing a forfeiture order. 47 U.S.C. § 503(b)(4). No such requirement existed in Rhode Island.
The final factor weighing in against the Rhode Island scheme was that scheme's success at complete suppression of the targeted publications. In Bantam Books, the Commission's actions resulted in the complete suppression of the targeted publications. Bantam Books, 372 U.S. at 63, 64, 67 68, 71. Unlike the Rhode Island scheme, the FCC's supposed system of informal censorship does not completely ban indecent broadcasts. By its own terms, this scheme allows the broadcast of indecent speech during particular times of the day. As already discussed, the FCC only bans the broadcast of indecent material outside of the "safe harbor" period. Licensees are free to broadcast indecent material at any time between 8:00 p.m. and 6:00 a.m. SOF P 9. Before the FCC even begins investigating an indecency complaint, its staff first determines whether the broadcast aired outside of that safe harbor. SOF P 9. Any "chill" the plaintiff may feel from forfeiture scheme disappears with the daylight.
Infinity is free from the risk of forfeiture as long as it broadcasts its indecent material during the safe harbor of the evening and early morning hours. The merchants in Rhode Island had no similar respite. This court will not construe the FCC forfeiture scheme as a system of censorship when that system only operates for two-thirds of the broadcasting day.
These distinctions demonstrate that the schemes at issue in Bantam Books and this case are not the same.
The court cannot, based on Bantam Books, construe the FCC's forfeiture scheme as one of prior restraint and censorship. The FCC is enforcing a court-approved definition of indecency through a system that provides for notice and judicial review. This is not the prior review and censorship of broadcast material. This is the FCC's regulation of an industry that serves at the pleasure of the public interest. Plaintiff may feel a chill because of the FCC's forfeiture scheme, but that chill is temporal only and has not been unconstitutionally inflicted. Accordingly, the court grants the FCC's motion for summary judgment on Infinity's constitutional claim and denies Infinity's motion for summary judgment.
For the reasons stated in this Memorandum Opinion, the court concludes that it has jurisdiction only over the constitutional claim asserted, that only Infinity Broadcasting Corporation has standing to bring that claim, that the constitutional claim is ripe only as to Infinity, and that the FCC's forfeiture scheme does not violate the First Amendment. An appropriate Order shall issue this date.
Royce C. Lamberth
United States District Judge
DATE: May 18 1993
ORDER AND JUDGMENT - May 18, 1993, Filed
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 the accompanying Memorandum Opinion issued this date it is hereby ORDERED that:
1. The court GRANTS the FCC's motion to dismiss count III of plaintiffs' Complaint for lack of subject matter jurisdiction.
2. The court GRANTS the FCC's motion to dismiss the following plaintiffs for lack of standing: Action for Children's Television; the American Civil Liberties Union; the Association of Independent Television Stations, Inc.; EZ Communications, Inc.; Fox Broadcasting Company, Inc.; Fox Television Stations, Inc.; the Motion Picture Association of America, Inc.; the National Association of Broadcasters; the National Association of College Broadcasters; National Public Radio; People for the American Way; Post-Newsweek Stations, Inc.; the Public Broadcasting Service; the Radio-Television News Directors Association; Shamrock Broadcasting, Inc.; the Society of Professional Journalists; South Fork Broadcasting Corporation; and 20th Century Fox Film Corporation.
3. The court GRANTS the FCC's motion to dismiss plaintiff Greater Media, Inc. because Greater Media's claim is not yet ripe.
4. The court GRANTS the FCC's motion to dismiss plaintiff Evergreen Media Corporation based on considerations of comity.
5. The court DENIES the FCC's motion to dismiss plaintiff Infinity Broadcasting Corporation's constitutional claim arising from the 1990 Notice of Apparent Liability.
6. The court GRANTS the FCC's motion for summary judgment on counts I and II of plaintiff's complaint and ENTERS summary judgment for the FCC on those counts, which are hereby DISMISSED WITH PREJUDICE.
7. The court DENIES plaintiffs' motion for summary judgment in its entirety and DENIES plaintiffs' motion for a preliminary injunction as moot. This case now stands DISMISSED.
Royce C. Lamberth
United States District Judge
DATE: May 18, 1993