FCC Appeals Super Bowl Indecency Decision to Supremes

But asks court to take no action on it pending resolution of Fox profanity case

By John Eggerton -- Broadcasting & Cable, 4/18/2012 10:59:02 AM

The FCC Tuesday filed an appeal to the Supreme Court asking it to review the Second Circuit decision throwing out the FCC's $550,000 fine against CBS for the Janet Jackson Super Bowl halftime show reveal as arbitrary and capricious.
 
But the FCC also asked the court to hold the petition in abeyance until it had ruled on the commission's challenge of another indecency decision, the Second Circuit's ruling that its indecency finding against Fox (referred to as the Fox II case) for profanity on an awards show was also out of bounds.
 
The court is expected to weigh in on that challenge within the next couple of months. "The court's decision in Fox II may shed light on the proper resolution of this case," said Solicitor General Donald Verrilli in the petition -- the SG's office handles Supreme Court arguments for the FCC. "This petition therefore should be held for Fox II and then disposed of as appropriate in light of the court's decision."
 
The FCC argues in its petition that the Third Circuit erred in finding its fleeting images indecency policy was an "arbitrary and capricious" departure from precedent. By misconstruing that policy, said the FCC, the court "contravened settled principles governing the deference due to an administrative agency's reasonable understanding of its own decisions."
 
The FCC pointed out that the Supreme Court earlier upheld the FCC and overturned the Second Circuit's decision that the profanity finding against Fox (Fox I case) was arbitrary and capricious -- that case is back at the High Court on Constitutional grounds after the Second Circuit on remand said the FCC's indecency enforcement regime was unconstitutional. It has been combined with the FCC finding and fine against ABC for nudity on NYPD Blue, which was vacated by the Second Circuit as effectively equivalent to the Fox profanity finding it had invalidated.
 
Back in January, the Third Circuit denied a full-court rehearing of the November 2012 decision by a three-judge panel reaffirming the court's 2008 decision that the FCC's fine of CBS stations in Jackson reveal indecency decision was arbitrary and was a policy change for which CBS stations were improperly penalized. That denial of rehearing triggered the decision on whether or not to take it to the Supremes.