FOX TELEVISION STATIONS v. FEDERAL COMMUNICATIONS

Docket Nos. 06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).

489 F.3d 444 (2007)

FOX TELEVISION STATIONS, INC., CBS Broadcasting, Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearstargyle Television, Inc., ABC, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents, NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association, CBS Television Network Affiliates, Center for the Creative Community, Inc., doing business as Center for Creative Voices in Media, Inc., ABC Television Affiliates Association, Intervenors.

United States Court of Appeals, Second Circuit.

Decided: June 4, 2007.


Attorney(s) appearing for the Case

Carter G. Phillips, Sidley Austin LLP, Washington D.C. (R. Clark Wadlow, James P. Young, Jennifer Tatel, David S. Petron, Sidley Austin LLP, Washington D.C. on the brief) for Petitioner Fox Television Stations, Inc. and Intervenor FBC Television Affiliates Association.

Eric D. Miller, Deputy General Counsel, for Samuel L. Feder, General Counsel, Federal Communications Commission, Washington D.C. (Matthew B. Berry, Daniel Armstrong, Jacob M. Lewis, Joseph R. Palmore, Federal Communications Commission and Jeffrey S. Bucholtz, Acting Assistant Attorney General, Thomas M. Bondy, Department of Justice, Washington D.C. on the brief) for Respondents.

Ellen S. Agress, Maureen A. O'Connell, Fox Television Stations, New York, NY, for Petitioner Fox Television Stations, Inc.

Robert Corn-Revere, Ronald G. London, Amber L. Husbands, David M. Shapiro, Davis Wright Tremaine LLP, and Lee Levine, Levine Sullivan Koch & Schulz L.L.P., Washington D.C., for Petitioner/Intervenor1 CBS Broadcasting Inc.

Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Travis D. Lenkner, Gibson, Dunn, and Crutcher LLP, Washington D.C.; Richard Cotton, Susan Weiner, NBC Universal, Inc., New York, NY; and F. William LeBeau, NBC Universal, Inc. and NBC Telemundo License Co., Washington D.C. for Intervenors NBC Universal, Inc. and NBC Telemundo License Co.

Andrew J. Schwartzman, Parul P. Desai, Media Access Project, Washington D.C., for Intervenor Center for Creative Voices in Media.

Marjorie Heins, Brennan Center for Justice, Free Expression Policy Project, New York, NY, for Amici Curiae Brennan Center for Justice, American Civil Liberties Union, New York Civil Liberties Union, National Coalition Against Censorship, First Amendment Project, PEN American Center, American Booksellers Foundation for Free Expression, Writers Guild of America West, Directors Guild of America, Screen Actors Guild, American Federation of Television and Radio Artists, Writers Guild of America East, Minnesota Public Radio/American Public Media, National Federation of Community Broadcasters, Film Arts Foundation, Re:New Media, National Alliance for Media Arts and Culture, International Documentary Association, Working Films, and the Creative Coalition in support of Petitioners.

John B. Morris, Jr., Sophia Cope, Center for Democracy & Technology and Adam D. Thierer, The Progress & Freedom Foundation, Washington D.C., for Amici Curiae Center for Democracy & Technology and Adam Thierer, Senior Fellow with The Progress & Freedom Foundation ("PFF") and the Director ofPFF's Center for Digital Media Freedom in support of Petitioners.

Henry Geller, Washington D.C. and Glen O. Robinson, University of Virginia School of Law, Charlottesville, VA, for Amici Curiae Former FCC Officials in support of Petitioners.

Robert R. Sparks, Jr., Sparks & Craig, LLP, McLean Virginia for Amicus Curiae Parents Television Council in support of Respondents.

Robert W. Peters, Robin S. Whitehead, Morality in Media, Inc., New York, NY, for Amicus Curiae Morality in Media, Inc. in support of Respondents.

Thomas B. North, St. Ignace, MI, for Amicus Curiae Thomas B. North, Judge of Probate, Sixth Probate Court of Michigan, in support of Respondents.

Before: LEVAL, POOLER, and HALL, Circuit Judges.


POOLER, Circuit Judge.

Fox Television Stations, Inc., along with its affiliates FBC Television Affiliates Association (collectively "Fox"), petition for review of the November 6, 2006, order of the Federal Communications Commission ("FCC") issuing notices of apparent liability against two Fox broadcasts for violating the FCC's indecency and profanity prohibitions.2 Fox, along with other broadcast networks and numerous amici, raise administrative...

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