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Fox Gets Extension From Supremes On Profane Responose

Request granted so as not to interfere with holidays 12/20/2007 06:44:00 AM Eastern

Fox and various supporters have gotten another month to file their response to the FCC's petition to the Supreme Court to review a lower court smackdown of the FCC's indecency finding against swearing on Fox Billboard awards shows.

 According to Andrew J. Schwartzman, president of Media Access Project, which represents the Center for Creative Voices in Media, they sought the extension because they knew they would be busy with the media ownership issue at the FCC, with some holiday plans adding impetus to the request.

 They will almost certainly argue that court not take the case. That's because the Second Circuit Court of Appeals, in a stinging rebuke to the FCC, ruled that the commission had not produced "any evidence that suggests that a fleeting expletive is harmful." The appeals court also had problems with the FCC's argument that the words always had a sexual connotation.

 The Fox case involved the network's 2002 and 2003 airings of the Billboard Music Awards, which included airing the words "shit" and "fucking" from Nicole Richie and Cher, respectively. The FCC found the words indecent as aired. Fox appealed, and the Second Circuit Court of Appeals concluded that the FCC's decision was arbitrary and capricious and that the commission had not sufficiently defended what was a change in policy on so-called fleeting expletives.

 Such extensions are fairly routinely asked for and granted around the holidays. The FCC itself had gotten two extensions for its filing seeking cert from the original Sept. 2 date to its final filing Nov. 1 that the court had aired, that it had justified its decision and that as the court let it stand, broadcasters have a pass to swear at will, and the FCC's ability to regulate indecency at all is at stake -- an issue it says the High Court needs to resolve.

 The FCC's profanity-enforcement policy is likely to remain in limbo through much of 2008. The Supreme Court won’t decide whether to take the case until sometime early next year, if them. If it doesn’t take the appeal -- and it is likely not to -- the FCC is under orders, but no timetable, to defend its initial policy to the Second Circuit Court of Appeals, the lower court that found that decision arbitrary and capricious.

 On Thursday, FCC Commissioner Robert McDowell said the commission was essentially waiting for the resolution of that case, and another federal court's decision in CBS' challenge to the Jane Jackson indecency fine to figure out how to proceed on indecency enforcement, which is why the FCC sought the Supreme Court review, he said.

November