ABC has asked the Second Circuit Court of Appeals to throw
out the FCC's $1.4 million fine against 52 ABC affiliates for a 2003 broadcast
of NYPD Blue, citing the same court's
decision last month that the FCC's indecency enforcement regime is
unconstitutionally vague.
In a supplemental brief to the court filed Monday (Aug. 23),
ABC and co-petitioners KTRK Television and WLS Television said that the
decision in Fox Television Stations was now binding law of the Circuit and
"leaves no doubt that the [fine] cannot stand.
The court sought the briefs after ruling in the Fox case,
which it was reconsidering on remand from the Supreme Court. The high court had
reversed the Second Circuit's initial ruling that the FCC indecency
finding--there was not a fine issued in Fox--was arbitrary and capricious, but
sent it back to the court. That allowed the Second Circuit to weigh in again on
the constitutional issue, which it had signaled in the earlier decision might
not come down in the FCC's favor either.
ABC says that because it was challenging the same indecency
enforcement policy that was struck down in Fox, the court should reach the same
result on the constitutional question, which is that its fine should be equally
voided for vagueness.
"There is, in short, no sound basis to distinguish this
case from Fox," the petitioners argued in their brief. "A policy that
is unacceptably vague, chilling, and subject to discriminatory application as
to expletives cannot be-and most assuredly is not-constitutionally clear, free
of chilling effect, and non-discriminatory as applied to images. As binding circuit
law, the holding in Fox thus compels the invalidation of the Forfeiture
Order."
ABC also said that was as far as the court needed to go.
While it challenged the ruling on procedural grounds and other issues, it said
there was no need for the court to address those, though it added it was not
withdrawing those arguments.
Courts usually opt for a decision on the non-constitutional
issue to avoid getting into constitutional rulings unnecessarily. But ABC agues
that since the court squarely addressed that issue in Fox, in this
"unusual situation" the constitutional issue of vagueness has already
been decided and so the other claims need not be addressed.
At press time, the FCC had not posted its brief online and a
spokesperson was not available for comment.
