ABC Asks Court To Invalidate 'NYPD Blue' Fine

Cites previous ruling that FCC enforcement is unconstitutionally vague

By John Eggerton -- Broadcasting & Cable, 8/23/2010 6:10:29 PM

ABC has asked the Second Circuit Court of Appeals to throw out the FCC's $1.4 million fine against 52 ABC affiliates for a 2003 broadcast of NYPD Blue, citing the same court's decision last month that the FCC's indecency enforcement regime is unconstitutionally vague.

In a supplemental brief to the court filed Monday (Aug. 23), ABC and co-petitioners KTRK Television and WLS Television said that the decision in Fox Television Stations was now binding law of the Circuit and "leaves no doubt that the [fine] cannot stand.

The court sought the briefs after ruling in the Fox case, which it was reconsidering on remand from the Supreme Court. The high court had reversed the Second Circuit's initial ruling that the FCC indecency finding--there was not a fine issued in Fox--was arbitrary and capricious, but sent it back to the court. That allowed the Second Circuit to weigh in again on the constitutional issue, which it had signaled in the earlier decision might not come down in the FCC's favor either.

ABC says that because it was challenging the same indecency enforcement policy that was struck down in Fox, the court should reach the same result on the constitutional question, which is that its fine should be equally voided for vagueness.

"There is, in short, no sound basis to distinguish this case from Fox," the petitioners argued in their brief. "A policy that is unacceptably vague, chilling, and subject to discriminatory application as to expletives cannot be-and most assuredly is not-constitutionally clear, free of chilling effect, and non-discriminatory as applied to images. As binding circuit law, the holding in Fox thus compels the invalidation of the Forfeiture Order."

ABC also said that was as far as the court needed to go. While it challenged the ruling on procedural grounds and other issues, it said there was no need for the court to address those, though it added it was not withdrawing those arguments.

Courts usually opt for a decision on the non-constitutional issue to avoid getting into constitutional rulings unnecessarily. But ABC agues that since the court squarely addressed that issue in Fox, in this "unusual situation" the constitutional issue of vagueness has already been decided and so the other claims need not be addressed.

At press time, the FCC had not posted its brief online and a spokesperson was not available for comment.