FCC to Challenge Profanity Decision in Supreme Court
Department of Justice Solicitor General Asks for Extension Until Nov. 1
By John Eggerton -- Broadcasting & Cable, 9/26/2007 5:14:00 PM
The Justice Department agreed to seek Supreme Court review of the Second Circuit court's smackdown of the Federal Communications Commission's crackdown on fleeting profanities.
According to a copy of the solicitor general's request for another extention of the deadline for filing the appeal, "The solicitor general has decided to authorize the filing of a petition for a writ of certiori in this case."
Justice said it needed the extra time to "permit the printing of the petition and because the attorneys with principal responsibility for drafting the petition have been heavily engaged with the press of other matters before the court," Solicitor General Paul Clement said.
According to Andrew J. Schwartzman, president of Media Access Project, which has supported Hollywood in challenges to FCC indecency enforcement, the solicitor general asked for an extension until Nov. 1. Schwartzman added that approval is essentially automatic.
The solicitor general is the Justice attorney who would most likely argue the case for the FCC. He had already asked for and gotten an extension from the original Sept. 2 deadline.
The FCC had found that so-called fleeting profanities uttered by Nicole Ritchie and Cher in two Fox Billboard Awards broadcasts were indecent. That ruling stemmed from its stepped-up enforcement on profanities following its indecency decision against Bono's "fucking brilliant" exclamation on an NBC awards show.
While the Second Circuit said the FCC could come back with a better justification, it didn't provide much hope in what amounted to a stinging rebuke in a part of the decision that is not precedential, but still signaled the FCC that its chances in that court were not great.
"I am pleased that the Solicitor General will be seeking Supreme Court review of the Second Circuit's decision," said FCC Chairman Kevin MArtin in a statement. "I continue to support the Commission's efforts to protect families from indecent language on television and radio when children are likely to be in the audience."
"When the petition is filed, we will respond in due course," said a Fox spokeswoman in response to the Solicitor General's decision to take the case to the highest court.
Elsewhere on the FCC's court docket, the Third Circuit Court of Appeals is currently deciding CBS' appeal of the FCC's $550,000 fine against CBS stations for airing Janet Jackson's partially nude breast during the Super Bowl halftime show.
