we court is going to give each of you five minutes of uninterrupted time and we don't always do this that we thought it would be appropriate here so this is a matter of so thank your honor and may please the court i'm robert corn rivera for the petitioners with the court's permission i'd like to reserve five minutes of my time final thank you your honor this court should once again overturn the f five hundred fifty thousand dollars for imposed on c b s for its two thousand and four broadcast of the super bowl halftime show for at least three reasons first nothing in f c c versus fox television stations alters this court's finding that the f c c for three decades treated words and images identically under its broadcast indecency policies the fox court's reference to language in one thousand nine hundred eighty seven f c c order is there that does not affect the central issue in this case which is whether the commission ever articulated or applied a change in policy with respect to brief and unintended images prior to the super bowl broadcast at issue here now with knowledge that language in supreme court's decisions requires close attention and the respect of circuit courts but as this court has held in various cases such statements are not control where they are made in a different context as they were here the brief passages and fox upon which the f c c now relies were never articulated or applied as the change in policy that is now asserted they were not mentioned in the decisions under review in this case or in any other f c c decision for the purpose i did here the supreme court and fox  no occasion to address the application of the f c c is indecency policy to visual material second even if the f c c is policy change were to survive scrutiny under the administrative procedure act and we submit that it does not know forfeit still may be imposed where the commission's policy statements are unclear or the agency itself struggles to provide a definitive reading of its rules cases such as trinity broadcasting versus the f c c have applied this basic principle of due process as has the commission itself in cases such as golden globes here the f c c may not impose liability on c b s for an obscure statement in a decision that went undiscovered even by the commission until late two thousand and six more than two and a half years after the superbowl broadcast this case is entirely distinguishable from fox on that basis alone no fine was imposed in that case which is a fact that the  repeatedly in support of its decision no such argument can be made in this case third this court's initial decision is further supported by independent grounds that likewise are unaffected by the decision and fox this includes the holding that the commission incorrectly imposed liability on c b s for the independent actions of janet jackson and justin timberlake the court should reaffirm its finding that the first amendment requires a showing of c enter but should forego to define what constitutes a reckless or willful violation of its indecency policy that's fine there's simply no reason to include c b s in that proceeding in no reason to punish c b s for the f c c is lack of clarity on those points before involving c b s and such an extended proceeding this court should first rule on the arbitrary nature of the nebulous and ever changing factors the commission employs to make indecency findings as well as the fact that the f c c is new restricti violates the first amendment under pacifica it has been six long years since the two thousand and four super bowl and the chilling effect of such extended in perpetual government oversight of protected speech is significant we have come a long long way from the strange enforcement policy that the supreme court specific a ruling was based on as justice ginsburg wrote in fox echoing sentiments for what appears to be a majority of the court there is no way to hide the long shadow that the first amendment cast over what the commission has done going to the first argument nothing in fox alters this court's initial holding the language that is quoted in fox is in a background discussion of that decision and can be deleted from the decision without seriously impairing the analytical foundations of that holding that's how this court has defined what dictum is language that is not essential to its outcome in fox the supreme court focused on the two thousand and six orders of the f c c as well as the two thousand and four golden globes order and said that those expressions of policy did recognize and express change from the f c c as prior policies and ultimately the court upheld the f decision under the a b a narrowly because it found that the words used in fox have the power to offend secondly that isolated words could be considered hateley offensive under pacifica third that even isolated utterances could be pandering or vulgar and shocking and amounted to what the court described as a harmful first blow you make you make a strong argument that the language that we've identified and that both parties have a den of fide might be characterized as background but it's supreme court background and how do we ignore it particularly when it seems to fly directly against what this court and let's let's assume that that we still think that our initial interpretation was a correct one and let's assume that we and if you could just spend a few moments to tell us why we should ignore it certainly judge sirica and we're not asking the court to ignore the reference to the one nine hundred eighty seven pacific a decision in in the fox decision what we're asking is for the court to look at the context in which the commission made those decisions and how those decisions got presented to the supreme court to understand what that means in light of this court's earlier decision in looking at the supreme court language similar to this this court in cases like official committee of unsecured creditors of side projects corporation versus general have said that we must not be guided by a single sentence but we need to see if the case at bar is the situation that the courts dictum anticipated and in this case looking at the reference to the one nine hundred eighty seven pacific a decision it's important then to look at what those decisions actually work that's because the f c c has historically defined its policy in its indecency area by what it calls case comparisons so simply looking at the sentence that the f c c plucked out and then that got presented up the line in the fox cases doesn't tell you what those policies were you have to go back and look at what those decisions actually were getting at the one nine hundred eighty seven pacific a decision was distinguishing two different complaints one involving an extended discussion of sexual activity in the presentation of a play on the radio and the second one which was dismissed was one involving brief unscripted and spontaneous descriptive language that the court then distinguished and said it was not going to find to be actionable it wasn't that the court or the see was distinguishing literal versus on literal years as it wasn't distinguishing images from language it was simply saying that when it refers to expletives and dismisses the complaint under its well established policy it was  commission had always been talking about in the past and that was unintended unscripted outbursts well what is a literal description or depiction and what is a non literal expletive where they're in the f c c opinions or injurious burdens is there some kind of definition of how we find me an expletive could be defined as an exclamation i'm not sure if it was i don't know it's definitely words or if the golden globes case where it was trying to distinguish the staff decision that said that the words and used in that case were used in a non literal way there's nothing in the fleeting material policy in the past that tried to define what was literal vs non literal that again that didn't come until the golden globes and that's why if you're in the fox decision because on review both before the second circuit and then ultimately before the supreme court those decisions the golden globes decision and the fox decision sort of got wrapped into one as of the staff's distinction in golden globes about banos non literal use of a word became part of the court's analysis but was never part of the history of f c c decision making it looked at this issue of a non literal expletive the i think the question was what is the difference between a literal description and a non disk can they be differentiated yeah well as i understand it the way the f c c has tried to refer to it is to say that if a presentation of language is actually describing sexual acts retore activity that is a literal use it whereas in certain contexts of expletives it is not actually referring to sexual activity or excretory activity but in fact is just a word that's used as euphemism and because of that it's still considered to be as it explained in golden globes and c is trying to get to now to say that if an if you're dealing with images then it's necessarily a literal usage but that's not the policy that the f c c has ever applied in the past it has treated images and language interchangeably in fact as this court pointed out in the prior decision that's because of the language of section fourteen sixty four itself it doesn't distinguish between the two and just talks in terms of language and utterances and so again the  commission has tried to say that images are different they're part necessarily by necessity literal but you won't find that in any prior f c c decision which is why in their briefs in this case the commission itself has turned to a dictionary definition to say that if you're talking about depictions that's necessarily visual and you have the same dictionary definition goes on to say we don't say in the end of my opinion that the commission is not differentiating between different categories of broadcast material such as images words that's correct so it has is has treated both of both of those categories the same that's right which is why they're relevant distinction for purposes of fleeting material has been as the commission described in one thousand nine hundred seven and throughout whether or not it was spontaneous scripted planned or whatever and all of the cases that the f c c has cited  over time really break down in those categories if they have been treated the same how do we analyze the two categories i mean is it the fleeting nature of images or words that we should focus on important for the court to use a can textual analysis but as that term was understood originally in pacifica and applied by the f c c when the supreme court was talking about the content of world it's not just the fleeting nature of the words or images that it's whether there are graphic offensive etc what is the fleeting nature in the way that the supreme court was dealing with it and the way the f c c argued the case at the time it was saying that when you're dealing with material  unplanned where you have a breaking event where there's no time for editorial judgment that it would be unfair to apply the policy against a broadcaster in that circumstance that's the context you will factor that the others those were the contextual factors it was not focusing on as the commission tries to do now a content based notion of contextual factors leaving the f c c free to apply those contractual factors in any way it chooses that that sounds very persuasive to me but that's not what the supreme court said on fox and i think your argument on inconsistent application is an intriguing one but before we we finished through with that could we go back to the articulation of the standard because as you said in the beginning you think that either on the articulation basis or on the as applied basis that you would prevail here again tell me how i deal with the language in fox that says deliberate and repetitive  requisite to a finding of indecency when a complaint focuses solely on the use of non literal expletives so that is language this is taken directly decision and it was quoted to the supreme court in the fox case and the court in fox quoted that as part of the background section i think what this court should do with it is look at the context in which the fox court was was looking at and when i make sure not to read it literally i mean well i think the key term here is what is an expletive because the f c c never defined what it meant by exploit it and the supreme court in that passage isn't talking about what a unplanned unscripted and unintentional and not just because it's brief that's a factor that it looks at certainly but the relevant factor for applying its fleeting material policy was the fact that it was not something the broadcaster set to do and therefore it would be unfair to apply the standard here that and then therefore for the f c c to now just draw a distinction based on expletives versus descriptions and to a argue that in front of the supreme court now the supreme court cite that language still doesn't tell you again what that distinction relates to unless you define the term expletive and that's something that the f c c has never done but lot of folks also talk exclusively about language well that's right exactly and if you look at those cases and you know that they're talking exclusively about language how young broadcasting had to do with nudity in imagery how does how does that case help you or hurt you i think young grog asking is neutral well actually in a way it helps because it's it shows that the f c c never applied the policy in this way it doesn't cite the ninety seven pacifica language as a change in policy it takes sixteen pages to get to that discussion young broadcasting also supports that reading of expletive being the unplanned because the analysis of the f c c was that this really wasn't unintended or fleeting because the broadcaster brought in these performers that it knew were going to be nude under their capes it asked for them to they were urged off camera to perform argument but not necessarily your honor because again the way that the commission said about distinguishing the fleeting materials cases was to say that they didn't involve the same kind of intent or the same kind of potential planning of the of the exposure but even if the supreme court's reference to it in fox and i can eighty seven pacific or order is considered to salvage the f c c a p a argument it still is insufficient to apply in this case to impose a penalty on c b s because of the due process concerns recognized in trinity broadcasting company that case and cases that we also cited in our simple little brief including general electric versus the e p a explain even if it is sufficient to satisfy the burden of explaining a change in policy under the a p a it is insufficient to impose a penalty which is that it so i think if the third circuit got it wrong and our first opinion and how be expected to get it right absolutely or i or anyone else for that matter this distinction that the f c c appears to have discovered in november two thousand and six went twenty years without anyone ever acknowledging it or applying it  it's really unfair to impose the standard on broadcasters to the point of significant liability for them to anticipate a change in policy that didn't even occur to the f c c until its third or fourth round of briefing and decision making in this area for second circuit and fox the application the inconsistent application are was a private understand primarily was the vagueness issue that was the focus of the argument there are you talking about the most recent argument yes or no the most recent in the most recent argument the and i guess mr lewis can probably tell you much more about that argument since he was arguing that case the most recent argument focused primarily on the vagueness issue and the constitutional question as well since the court in fox didn't reach the constitutional issue but essentially invited the court the second circuit on remained to look at the constitutional issue and so should we await that determination i don't think it's necessary to await that determination for example either on the a p a issue or because of the due process question this court can reaffirm its earlier decision without getting into the constitutional issue however because of the significant constitutional issues that are involved as we wrote in our briefs it would be not a bad thing for this court to provide guidance both for the f c c and for all of us on the constitutional issues involved eighty eight there was the first time the f c c issued a fine as far as i'm concerned for broadcasting involving k z case see which we cite in our briefs this was the broadcast of an r rated movie on a local television station the public notice acknowledging that decision was that it imposed this fine because the images were not fleeting because they were not just about it's just recommitting that fleeting nature of the words or images and even one of the factors  we didn't mention in our underlying opinion footnote ten of our opinion we laid out that in its two thousand and one policy statement the commission described the principal factors that have prove significant in its decisions to date the fleeting nature of the words or images was but one factor other factors were the explicit or graphic nature of the deception and there were other factors my question to you is  isn't that statement sufficient to put c p s on notice that this type of conduct might be actionable in isolation perhaps but not in the context of the f c c its history of not imposing  forfeitures in this area as explained going back to the pacifica ruling of the same is true of the safe harbor for time for the time channeling safe harbor where you don't impose or it's not actionable if you put on tiriel that's considered to be indecent after ten pm those factors simply would not apply to something in that safe barber and for the same reason that with the f c c is initialized it would in a safe harbor for for images or do displays on broadcast television other than its general statements that it's unfair to impose a penalty on a broadcaster for the unexpected that that's really what the policy statement was and wasn't changed by the two thousand and one policy statement which laid out various factors the last time this court looked at the policy statement chided the f c c for taking those references to images out of context saying that otherwise the policy statement simply confirmed that the commission has treated images and words identically in the history of its broadcast indecency enforcement policy do you think how fleeting the kind that is might make a difference i mean it seems like all of pleading may be just very quick other circumstances where the facts show that it wasn't so unexpected or unplanned which is what the commission was trying to get out in the young broadcasting case saying that in that case it wasn't just something unexpected that instead it was something that the broadcaster brought people into the studio and took the severe risk that that might happen i'm not trying to say that that necessarily is something that would be indecent but it's something that certainly distinguishes this case and i think your honest question about what may be fleeting from the situation involving the super bowl my understanding and the inconsistent application i came out of my understanding of the f c c is physician is that yes they have declined to go ahead and press cases for fleeting images but in doing so at least in the great majority if not practically all of them they've done so under the  weighed the fleeting nestle against the graphic part and the pandering part and that's been the reason i mean would you please put the light off i can see we're going to go over time here with both with your response to that that essentially that there hasn't been inconsistent application because the commission is simply been weighing fleeting this along with the other two factors that is borne out by the actual decisions of the f c c where they have talked about how they apply this policy but if you look at the cases which they have dismissed complaints involving reading material it really goes back to the original fact is that the f c c described it it's one hundred seventy five in one nine hundred seventy six was sceptical orders it went to the unexpected that was the entire defense that the f c c made for its indecency policy saying that it understood that it was less clear than obscenity it understood that it was inch intruding on an area that may involve very significant first amendment rights but in exchange for that lack of clarity it applied what it described as a cautious enforcement policy and part of that cautious and forcefully policy was not to enforce the law where in those cases where the broadcaster was caught unawares or caught off guard and couldn't be blamed for not being able to exercise editorial judgment in the short time available and so all of the decisions that you reference referring to the two thousand and one policy  statement really drew those same line looking at the fleeting nature in the context of whether or not it was something that was unexpected for the broadcaster and again the last time this court looked at the f c c is explanation of its two thousand and one policy statement it sa that the reference that it made that policies they were going to read in its original context rather than as isolated statement this sentence does not support the commission's assertion here it has the commission to simply substituted new rationales in the wake of the golden glob decision if we do not agree with you on the take elation of past f c c policy then you would like us to find that they applied that policy inconsistently and that you were on notice and that there's due process concerns there i gather you also i want us to if we if we think it's proper to reaffirm the think the inside of the second circuit might be helpful but yes your honor i think there are independent grounds that if the court disagrees on due process or on the a p a then still it would be unfair to hold c b s responsible for the broadcast the what about the vagueness issue you raised that initially we did not deal with it you would want us to press ahead with a consideration of thanking us if you're making us challenges well yes you also in violation of the first amendment even under the standards set down in pacifica but let's just spend a minute on that what would make it less standardless in your view if you know essentially the policy deals with the graphic nature of either the talk or the image the pandering arc and the repetitive or extensiveness or fleeting  how would you how would you cut this down if you were going to write a more specific standard i think the easiest way to to do that is to pattern something more like the obscenity standard where you have distinct standard i'm not saying that it has to be the miller standard but rather in applying the miller standard courts apply the very three prong test of the miller as discrete issues each of which has to be met in the f c c is revision of miller as applied through its indecency standards it's argued that it's very for various factors the graphic nature of the material whether it's repeater dwelt upon whether it's pandering all interrelate so that it can find essential whatever it wants simply by saying at its own whim one factor outweighs the other and so i think having a test that actually requires it to be a test rather than an impressionistic view of the commission saying that one factor simply outweighs another without any further explanation that alone would make the test clearer i don't know if it's going to be sufficient to satisfy the supreme court ultimately on the think this issue but it certainly would be an improvement on what the commission has constitutional question to know if it's a first amendment analysis then this court does not differ to the f c c if we're talking about an interpretation of the f c c as prior policies then this court would be deferential but not to the point that fourteen sixty two i believe those reference willful conduct which is a higher standard for the f c c than the could you comment on which standard should be the correct standard and if we should remain on the case for a decision one way or the other well as i involving c b s in the remount is really unnecessary but that being said if the f c c does go forward and it certainly can go forward and define what it means under the statute we think that first of all it should clarify whether it is proceeding under section one five zero three b one b or five o three b one b which would define whether or not the standards applicable to section fourteen sixty four apply the amicus brief filed by fox i think has a very good analysis of this  e saying that the higher standards do apply that require an actual showing of intent to violate the standard now in the court's earlier opinion when it was talking about the standard of recklessness that would apply it cited to the supreme court's decision osborne versus ohio and that in that case you could impute the recklessness standard from a general state statute and therefore thereby salvage a federal a state criminal statute on child pornography i think the important thing from that decision to apply and it relates to the question of remain and is the secondary decision and in osborn which reversed the conviction in that case because the standard of c enter had not been applied to all elements of the offense i think this is this underscores a point the judge rendell made in her dissenting opinion saying that what is important is that the f c c is required to show seattle with respect to each element i don't understand where willfulness is is a lot easier to do than reckless conduct isn't constitutionally recklessness be sufficient the last time i was here in the oral argument i was talking about recklessness in the context of first moment cases such as new york times versus sullivan where you have to have actual intent or reckless disregard i think that the recklessness standard that the court was discussing in the opinion was somewhat less than that but i think the commission itself acknowledged that the standard probably should be willful blindness in the oral argument last time and i think that is a standard that if you apply to this case you reach the same outcome and that is no penalty for c b s there you would have to show according to third circuit decisions a conscious purpose to avoid learning anything about the situation that might lead to liability that it wouldn't be sufficient to have simple negligence or even stupidity would not be enough and i think that standard whether or not the court resolves what the ultimate standard would be sense that something it's asked the commission to do that one is a stand certainly would reach the same outcome here i think the record fully demonstrates that whatever else may have been going on there was not willful blindness or in that sense recklessness any broadcaster would take to avoid unexpected events during a live broadcast of this type thank you very much  is whether or not there's a clear sales exemption so let's go back to nine hundred eighty seven in the pacific order and actually look at what the commission did in the pacific order in that order the what it been happening after pacifica the supreme court foresman to cases which actually contain the repetitive repetition of the precise expletives that were issued in the carlin monologue that was issued in the supreme court case in one nine hundred eighty seven the commission changed its policy however it made clear it preserved the repetition requirement which should have been plying up to them with regard to a narrow category of words and words on non literal expletive now policy in the supreme court's decision in that case so on page eighteen zero seven of the supreme court's opinion although the commission had expanded its importance beyond the repetitious repetitive use of specific words or phrases it preserve a distinction between literal and and non literal or expletive uses of evocative language the commission explained that each literal depiction description or depiction of sexual arky tory functions must be examined in context to determine whether it is patently is that's a battle that's fought in the class of words images were never subject to that per se exception now it's true that one one looks when one looks at the actual distinction that the commission set for the preservation you find a distinction between non literal and descriptive and are quite in the briefing about the message or the implication for images is that if one were to try and try and fit images into those that category that was created for words you would put images on the descriptive side of the line then which also fell outside the per se exception the exception only applied to non literal expletives images are not expletives and they're not decision because that wasn't simply inside by the supreme court that description of commission policy was a critical set up to the that supreme courts of permits of the commissions a p a p power to change its policy and the underlying assumption and again if i could read from the fox decision it talked about at page eight hundred twelve the agency's reason for expanding the scope of its enforcement activity and this was when the agency of limited that carve out was entirely reasonable it was certainly reasonable to determine that it made no sense to distinguish between literal and non literal uses of offensive words requiring repetitive use to render only the latter in these so the supreme court could not have reached its its decision that the commission's chang policy in the fox case was reasonable without describing what the prior policy had been and so that's our point this isn't simply a discussion in the background section and dipped in a supreme court opinion that background section take out the argument that there was a pleading images or a fleeting materials policy there was nothing for the commission to explain the the commission's order cannot be invalid on the basis of failure to explain a policy that  ask questions for you say looking back that it is clear that this is words and words alone and i i'm not sure where it says that but it seemed to me that in young broadcasting there was the opportunity i mean in in fox and a pacifica we're talking about speech in young we're talking about nudity and there was the opportunity for the commission to say as you say in your brief i quote your brief spoken vol garrity simply cannot be analogized to the display of a person's sexual organs that's what you say in your first brief in this case but in young broadcasting the commission addressed the fleeting nature of the exposure here saying that it occurred for less than a second saying it was fleeting and then noted however that it was intended to pander to the light and shock and then says thus we reject young's assertion that this material is equivalent to other instances in which the commission has ruled that fleeting remarks in a live unscripted broadcast do not meet the indecency definition and in the footnote thirty five it explains how the expletives the fleeting expletives in other cases were not intended to pander until it but it drew no distinction between an image of nudity that is fleeting and an expletive that is fleeting but said instead they're all really grouped together they're the same but do not pander or tennille late and we will find differently in other words it almost opened the door to probably what was going to happen in golden globes but it did not it had the opportunity to say nudity is different it didn't it said this fleeting exposure is different from other fleeting expletives because here it's to pander so i'm trying to figure out how yours to be c b s or anyone is to be put on notice aha as you say a spoken ball garrity cannot be analog in your very own opinion where you have imagery unlike fox unlike pacific you have imagery when the f c c itself does not draw any distinction at all between the two fleeting things well exception a resumption that there is no further analysis that needs to take place when any material is treated but that's not been the commission's policy so we have tell me where it's not been the commission's policy with respect imagery to him here's what the commission's policy was carlin said which was really the context in which the question but nine hundred eighty seven wanted to make clear that it was not diverging or wanted to preserve their requirements that there with regard to those kind of expletives there had to be repetition but with regard to everything commission issued it forcefully orders for anything other than fleeting words or images since one thousand nine hundred eighty seven for anything other yes have been many cases of non fleeting images i think there are an example schindler's list case where the commission outweighed them into other determining which was patently offensive and that's why it's easy enough to see that if if you say assume c b s action scripted the show the way it went out and people still sat around a table and said i have a great idea for the end of the super bowl halftime to find that to be indecent so unless she has has this exception they really have no objection to the commissions and decency to try now they make a different argument they make an argument that well this was all very confusing and we didn't really have any material was not indecent but there was no case that said we're finding it out because we're applying an exception all of the cases are perfectly consistent with the commissions but that seems that seems to be the case the george carlin monologue in and and the core which are cases were words cases and that's the whole point of the fox decision yes the commission did change its policy with regard to the leading expletives non literal uses of words and again he says the pictures are different  this court said well that was a divergence from the prior possible there wasn't a prior cause but it does but putting that aside because we think that that the clearest statement of why there was no prior policy was in one nine hundred seventy supreme court and now confirmed by the quote fleeting remarks in live unscripted grokking as they are that the commission yes the commission that's because there are other factors besides leader leaving is not the only factor speeding is a factor but it's not the only one so in some cases the ballots will come out words well i think that what the fox case involves words that were arguably flimsy as there were only a certain isolated word where there is no penalty imposed right but in this case i guess it provides an example  in favor of affirming our underlying opinion well i think this goes to the second question about the willfulness and so i have two questions i think that you could there are really two issues in this case one is the question reason we determined that the super bowl halftime show would broadcast was  properly pointed out one problem with that as the commission pointed out as well they were on the under they were considerable alarm bells in the record about divergences from both the audio and the visual script in the case there were concerns under a duty to investigate those statement also but there's no evidence that they actually knew that the event was going to take place discreet corner and that's right your honor but there was evidence that they had the ability to impose a video implement a video del system and they would never would have had what their problem was is for the super bowl halftime show they had an audio places a five second delay on audio which did them no good at all once justin timberlake rip that since they had no video delay they had no way of preventing that image from being broadcast to get our point is i think this court understood that the point about that recklessness can suffice both under the constitution and under the not reinvent the wheel not take it off the shelf and invent the wheel during that week all we ask here for present purposes is that we allow on this one allow us agreement to explore that issue for fact is that a page seventy two of explained that as defined in the act of openness involves a conscious or deliberate omission of any are the commission found here that the failure to take precautions was a fellow within the language of a mission and this court has also held  before which are in the states would be consistent both with the structure and constitution so we don't have an objection to two or three men indeed we would acknowledge that it would but the commission would benefit the court would benefit from the commission's explanation of that that let's assume that they did well if i only wanted to point out that i don't think you can leave make that assumption would go up we examine the ritz because they did not make it in their supplemental briefs on remand and i don't see them anywhere it stated on the big decision our position is that the two points the vagueness issues were close by precedent it's typically itself as the d c circuit later recognize an action for children's television replays by the way this is not in our briefs because i've don't think there was a vagueness really a bigger challenge that year terms of c d s not being on notice that you could not place nudity on the screen at the end of the super bowl halftime show so i don't see both as a general matter i don't see the the factors in play to put some material off the table and if they if your objection is that it's varied i don't know that the indecency analysis is any more big with regard to unscripted material woodward descriptor but but here the emphasize the commission's a complex bonuses and pacifica and found were at least did not address upheld the policy without regard to whether and and if in a sense the idea is that it's vague because it's to give further guidance by the way here that two thousand and one and disregards was meant to give broadcasters an idea of how the commissions what the commission's framework was going to be and indeed the commission took care in this and other decisions to explain how it scripted it was pretty close to being switched around and the and terms of the fleeting house compared to this particular case it would seem that they were on different ends of the spectrum i'm correct in that until i think they were both less than the second of the image and only the actual image an actual image was of both less and second i don't know that the young or the licensee there would agree with your characterization that it was nobody figured out that if you sit in a chair long enough of the hot television lights when you get up your robe doesn't necessarily get up to so i don't know that that there's much of a difference there even with regard to be honest with you i don't think they necessarily intended for the performers there to be exposed to put in again recklessness may apply to both cases if they put the performer in a situation to put themselves in a situation where this could happen and might very well happen as he or c b s was a had a i did have a concern about the reckless the standard because when we were discussing it before you said that c b s omitted doing a number of things that it should have done you just mentioned that they like i have an understanding of recklessness which has to do with their knowledge that there is going to be for example nudity displayed and they said damn the torpedoes full speed ahead we don't care we'll ignore the risk that is a kind of recklessness and i'm thinking about what you're suggesting that the statement by janet jackson's own choreographer they're going to be shocking moments but there were also the record does show that and if the n f l which was obviously had produced a sports event around the halftime show was intimately involved with scary feel as it might and there were a number of a lot of pieces of evidence that should have put c b s on notice but but the point is they don't necessarily have to know for certain something about what happened if they knew for certain this was going to happen while they were probably under a much greater duty to make sure that this didn't happen but if they have some if they have evidence that they are running a risk and they proceed thank you your honor i'd like to make just a few points then answer any questions you might have but first just to answer the question that came up earlier about the vagueness argument whether that up that was made the initials of c b s at pages forty to fifty two talks about the standardless nature of the f c c is policy and the reply brief pages nineteen twenty also addresses that issue secondly mr lewis i think misspoke and his last few minutes on the floor when he talked about questions that came up during the planning of the super bowl about the length of the video delay in fact there was discussion as we discussed at length the last time about imposing an audio delay there was no discussion of a video delay because no such delay had ever been used in a broadcast in the past as the commission itself acknowledged in oral argument the last time here now just a few points and then of course i'll answer any questions that you have i think it's important to notice how the f c c argument has changed over the course of this case when it was before you the last time it argued that the distinction between images and words is obvious and the f c c has policies but unstated now after it has argued the fox case its argument is that the policy was stated in one thousand eighty seven but just not so obvious that the f c c ever cited it in any case until two thousand and six in a different context that change in emphasis is critical to understanding how the f is involved in a post hoc rationalization for what its policy was then and what it is now secondly the f c c is wrong when it suggests that the quotation from the one nine hundred eighty seven pacifica order in the fox decision was critical to the xox that to the supreme court's decision on the a p a it was not you can remove that discussion altogether and the court would reach the same opinion that it did based on its analysis of whether or not the f c c could have adopted that policy in the first place but is that the test i mean once we have a g d r grant of cert vacate ri man do we need to have found that the matter before us this being argued was essential to the holding of the supreme court's recent decision or can we take an opportunity to rethink and change our mind well certainly the court has the opportunity to to rethink the issue and change its mind the question is whether or not the supreme court's citation of that language goes to the issues that persuaded this court the last time and the point is that the supreme court was simply looking at that in a different context and never considered whether or not the f c c policy with respect to images was implicated and more importantly the i'm sorry finisher and what with the supreme court itself looked at the f c c citation of that language and said that it was an irrelevant detour and that it wasn't c is ultimately explanation where it actually acknowledged is changing policy was sufficient to survive under a p a analysis mr lewis pointed out the language on eight hundred twelve in the fox decision where the court said and finding the agency's reasons for now treating the isolated non literal expletives as actionably and decent were quote entirely rational court talked about how it was reasonable that term and that it made no sense to distinguish between the literal non literal uses of the words and the doesn't that seem to support mr lewis's argument  know it does support the the f c c is decision and fox where it was actually distinguishing between literal and non literal uses but it doesn't explain what happened in the one nine hundred eighty seven order and or what the f c c is history had then  and so again while that may have been something that the f c c or the supreme court cited in support of its ultimate conclusion its primary factors for deciding that the f c c is explanation was sufficient were the ones given in the two thousand  in the george carlin model of those we're non literal use of the word and yet the f c c itself argue that fox has argued i guess several times in the course of these two cases that george carlin these words were not all non literal uses this is the example that i was giving about how the f c c is arbitrary the application of its factors it defines them one way in one case and feels free to change them in another and it's a separate independent reason why the f c c is explanation should be argued and very well briefed we would like to have a transcript made the argument and ask that you share and that if you would please check with the clerk's office i'll tell you how to do that court will take the matter under