Second Circuit Denies Full-Court Review Of Fox Decision

November decision flew under radar but started clock on potential Supreme Court appeal

By John Eggerton -- Broadcasting & Cable, 1/4/2011 4:40:47 PM

A Federal Court will not review its decision that the FCC's indecency enforcement regime is unconstitutional.

Buried on page five of the Second Circuit Court of Appeals decision vacating the FCC's indecency fine against ABC stations over NYPD Blue Tuesday was the news that the court back in November had rejected the FCC's request for a full-court hearing of its finding that the FCC's indecency enforcement regime is unconstitutionally vague.

That finding came in the Second Circuit's review of the FCC's indecency finding against Fox for swearing on awards shows. After the Supreme Court ruled that the Third Circuit was wrong to rule that the FCC's regime was arbitrary and capricious, the High Court remanded the decision back to the circuit. The court was free to go to the constitutionality of the decision, which it did in ruling it too vague to pass muster.

It was that finding that led the court Tuesday summarily to vacate the ABC fine as well for stemming from an impermissibly vague standard, citing the Fox decision as its reason for doing so.

But arguably the bigger news was that the court had already decided not to re-hear the Fox case, which means the FCC's next step is taking it to the Supreme Court. Nov. 22 also starts the 90-day countdown for the FCC and Justice to file that appeal, according to an attorney familiar with the process.

On page five of the NYPD Blue decision, in a parenthetical aside, the court said: "Because Fox Television Stations, Inc. v. FCC...(rehearing en banc denied), held that the indecency policy under which the Forfeiture Order was issued is unconstitutionally vague, we grant the petition for review and vacate the Forfeiture Order."

The re-hearing was actually denied Nov. 22, according to a copy of the one-page denial.

The FCC had asked for either a re-hearing by the same panel that ruled, or by the full court en banc. Both were denied, but that news slipped under the radar, not only of the news media but some lawyers following the case.  "It turns out that the Court filed everything under one of the companion dockets, so most counsel weren't notified," said one attorney, who added that the Nov. 22 denial means the FCC will have to decide by next month whether to take the decision to the Supreme Court.

Dan Isett, director of public policy for the Parents Television Counsel, said it was clear the court had an agenda, which was to "obviate" the law. "If anything, it bolsters the case for why the Supreme Court needs to review these cases." PTC wants the FCC to appeal the decision to the Supreme Court, but Isett says it will also encourage Congress "to do whatever it can."