Gambling that the justices will take its side, the Parents Television Council asked the Supreme Court to weigh in on the constitutionality of the Federal Communications Commission's indecency-enforcement regime.
That came in an amicus brief filed in the FCC's challenge to the Second Circuit Court of Appeals decision that the agency's indecency finding against Fox for swearing by Cher and Nicole Richie on the Billboard Music Awards was arbitrary and capricious. The court found that the commission violated the Administrative Procedures Act by not sufficiently justifying a change in regulatory policy.
But the PTC -- its member complaints helped to spur the FCC's crackdown on cussing -- said it hopes the court goes beyond ruling on an "administrative aspect" of the matter and instead rebukes "two federal judges in New York City" whom, it added, "ostensibly stole the airwaves from the public and handed ownership to the TV networks."
Given that the Pacifica decision, which underpins FCC indecency enforcement, was a narrow one, the PTC is running the risk that the court could end up reversing that decision rather than buttressing it. But the PTC said that while the times may be different, the underpinning of Pacifica -- that broadcasting is a uniquely pervasive influence in America, is uniquely accessible to children and "still confronts the viewer in the privacy of the home" -- has not.
The FCC -- actually, the Justice Department -- already filed its opening brief to the court, and various amicus briefs have been filed, including one from the National Religious Broadcasters backing the FCC.
Fox has until July 2 to weigh in, but it is expected to ask for an extension until August.