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FCC Source: Justice Undecided On Fox Profanity Appeal - Broadcasting & Cable

FCC Source: Justice Undecided On Fox Profanity Appeal

Justice also seeks extension on deadline for appealing 'NYPD Blue' case
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An FCC source says that the government has exhausted
its requests for extensions on the filing deadline for asking the Supreme Court
to review the Fox profanity decision, but also says that the Solicitor General
(SG), with which the FCC has been consulting, still hasn't decided whether to
appeal.

In addition, just last Friday (March 25), the SG
asked the Supreme Court for a month extension--its first--on the April 4
deadline, on whether to appeal that Jan. 4 decision, according to a lawyer
familiar with the case.

The SG, which argues government agency appeals
before the High Court, has so far sought and gotten, at the FCC's request, the
two extensions to the initial Feb. 20 filing deadline
for the Fox
appeal.

"Consistent with standard government
practice, the FCC has been consulting with the Office of the Solicitor General
concerning Supreme Court review of the Fox case," said the source.
"The Acting Solicitor General's requests for additional time are routine
as well. We understand that he has not yet determined whether to file a petition
for a writ of certiorari [the legal name for a request for the Supreme Court to
review a lower court decision]."

A spokesperson for the SG's
office had not returned a call at press time for comment on the status of
its decision-making process. The FCC has clearly signaled it needs some
help from the courts in order to start acting on indecency complaints, but a
spokesman would not say whether or not the FCC was backing the appeal. "We are
in discussions with the Office of the Solicitor General; we cannot elaborate on
those discussions at this time," he said.

If the Justice Department does
not appeal the Second Circuit decision, the FCC's indecency enforcement
powers remain unclear, and unconstitutional in the eyes of at least one
circuit. "It's difficult for the Commission to act in this area [indecency],
despite a congressional mandate, until the 'fleeting expletives' case is
resolved," said a senior FCC official who asked not to be identified by
name. "This is a contentious set of issues in which we historically have been
guided by the courts. The Second Circuit decision was so broad in scope that it
leaves us little or no ability to address broadcast indecency at this time."

Last July, the Second Circuit Court
of Appeals
ruled
that the FCC's indecency finding against profanity on Fox awards
shows--and by express extension its indecency enforcement regime in general,
was unconstitutionally vague.

The SG had sought two earlier
extensions; the latest was granted on March 10 and set the current deadline at
April 21. "This is the last extension we are going to ask for," said the FCC
source.

A three-judge panel of the Second
Circuit said the FCC's decision finding swearing on awards shows on Fox
indecent is impermissibly vague, which means it chills speech. "Under the
current policy, broadcasters must choose between not airing or censoring
controversial programs and risking massive fines or possibly even loss of their
licenses," said the court, "and it is not surprising which option they choose.
Indeed, there is ample evidence in the record that the FCC's indecency policy
has chilled protected speech."

The Second Circuit denied the FCC's
appeal
of that decision to the same panel, or to the full court, a decision that teed up the case for a return
to the Supreme Court justices, who have been expecting it. The High Court had
earlier ruled that the FCC's regime was not arbitrary
and capricious on
procedural grounds,
but had not gotten to the constitutional question. In that 5-4 decision,
Justice Clarence Thomas, who voted for the FCC, said if it came back on those
grounds, he would open to rethinking the Red Lion and Pacifica Supreme Court decisions
that undergird the FCC's content regulation.

"[E]ven if this Court's disfavored
treatment of broadcasters under the First Amendment could have been justified
at the time of Red Lion [Fairness Doctrine] and Pacifica [indecency]," he wrote
at the time, "dramatic technological advances have eviscerated the factual
assumptions underlying those decisions. Moreover, traditional broadcast
television and radio are no longer the 'uniquely pervasive' media forms they
once were."

That gave broadcasters hope that the
decision this time around could be different, which is why an FCC challenge
could potentially prove a First Amendment win for them, rather than for the FCC
enforcement regime.

The case stems from the FCC's
conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie
during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 ("shit"
and "fuck") were a violation of community standards for broadcasting.

And on the NYPD
Blue
front (or more to the point, backside), the Second Circuit on Jan. 4
threw out the FCC's fine against ABC
for a shot of Charlotte Ross' bare back
and behind on NYPD Blue saying it could not stand in light of its Fox decision. In a no
precedential summary judgment, the Second Circuit held that since it found that
the FCC's fine "for fleeting, unscripted utterances" in Fox music
awards shows was unconstitutionally vague, and the NYPD Blue case, though dealing with scripted nudity, "turns on
an application of the same context-based indecency test" it found
impermissibly vague in Fox, the court agreed to vacate the NYPD Blue fine for the same reason of
vagueness.

Justice had until April 4 to filed an appeal, but
isn't ready in that case, either.

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