The Second Circuit Court of Appeals continues to
hammer away at the FCC’s indecency enforcement
regime, which likely means an ultimate showdown
in the Supreme Court between the government
and broadcasters.
As of last week, the FCC’s pursuit of scripted and
unscripted “indecency” has been declared unconstitutional
by the federal appeals court.
Last July, the court ruled that the FCC’s indecency
finding against Fox for fleeting, unscripted profanity on
an awards show was based on an unconstitutionally
vague standard. Then in November, under everyone’s
radar, it denied the FCC’s request of the full court to
review that decision.
Last week, the same court
threw out the FCC’s $1.2 million
fine against ABC stations for
broadcasting Charlotte Ross’
naked back and backside on
NYPD Blue, ruling that its attempt
to regulate nudity in a
scripted show was equally void
for vagueness.
While no other circuit is bound by that decision, the
FCC is unlikely to be taking any indecency enforcement
actions anytime soon, with its authority still
the object of something of a cat-and-mouse game
between the Supreme Court and Second Circuit, as
one veteran attorney put it. The FCC’s
last fine proposal was two years ago,
in the Blue case.
The Third Circuit has yet to weigh in
on the most high-profile remand of an
indecency decision by the Supreme
Court—the $550,000 fine the FCC
levied against CBS stations over the
2004 Super Bowl halftime show. If the court upholds
the fine or reverses it on different grounds, the FCC
would have more ammunition for its argument that
there is a split in the circuits that needs resolving by
the Supreme Court.
