The FCC has decided not to seek full court review of the Second Circuit Court of Appeal’s ruling that its “fleeting profanity” findings against Fox were "arbitrary and capricious."
The court in June ruled that the commission had not justified its decision to find fleeting expletives in two Fox music awards show broadcasts indecent, a reversal of long-standing policy.
An FCC staffer with knowledge of the decision confirmed to B&C that the deadline for filing an appeal before the full appeals court--the June 4 decision had been a 2-1 ruling by a three-judge panel—had passed (it was July 19) and that no petition for review has been filed.
The commission could still appeal the decision to the Supreme Court. While the deadline for the Second Circuit was 45 days, it had 90 days to decide whether to seek High Court review as some, including Senate Commerce Committee Chairman Daniel Inouye (D-Hawaii) and the Parents Television Council, have urged.
The FCC did not like its chances in the Second Circuit, said the FCC staffer. The court only averages one en banc review per year, and the commission's appeal "wasn't likely to be fruitful," said the source, who would not comment on prospects for a Supreme Court review.