Look for broadcasters, led by Fox, to file their responses to the FCC's defense of its indecency enforcement regime by midweek.
The legal back-and-fourth in the U.S. Appeals Court for the Second Circuit in New York is over profanity rulings the FCC issued, then re-issued after broadcasters took them to court, reversing rulings against ABC and CBS and saying the court should drop the case.
The two profanity rulings remaining are against Fox for cussing it allowed by Nicole Ritchie and Cher on Billboard Awards shows in 2002 and 2003 that the FCC defended last week in its brief to the court. The commission also defended its indecency enforcement powers, saying it was correct in ruling the broadcasts were indecent and profane and that it was reasonable to hold that contemporary community standards for broadasting don't allow the gratuitous uttering of "the 'F-Word. and the 'S-Word.'"
One veteran First Amendment attorney who has represented broadcasters on numerous content calls, says the FCC's most "questionable" claim is that it is "an expert on the views of the American public."
"The FCC's postion," he says, "undermines the doctrine that when reviewing a matter of constitutional law decided by an agency, courts take an independent look at the facts--or, as lawyers like to say, they review the matter de novo."
"More importantly, if the FCC is the jury as well as the judge and executioner on matters of content, there isn't much for the public to do. It gets only what the FCC thinks is good for it.
"Of course, that is censorship."
The FCC in its brief counters that, instead, it's actions are amply explained, well within its statutory authority, and constitutional.