According
to one of the parties in the case, the Second Circuit Court of Appeals has
asked both sides for supplemental briefs in the NYPD Blue indecency case, wanting to know what effect a recent
ruling by a three-judge panel of that same court has on the FCC's fleeting
nudity enforcement policy under challenge in the NYPD Blue case.
That
case is the one in which the FCC proposed fining ABC affiliates more than a
million dollars over a 2003 episode of the acclaimed police drama that featured
seven seconds worth of the backside of a character (played by actress Charlotte
Ross) accidently displayed to a child who happens into the bathroom while she
is preparing to shower.
The
Second Circuit wants to know what impact its recent decision in the Fox casethat the FCC's fleeting profanity policy is unconstitutionally vague andchilling has on the case against the FCC's fleeting nudity policy challenge in Blue.
There
is a deadline of Aug. 23 for briefs of no more than 15 pages, said the source.
The NYPD Blue challenge by ABC wasargued in February 2009,
but the court has yet to render a verdict.
It
was likely waiting for some guidance from the Fox case.
The
Third Circuit is currently reviewing its earlier decision that the FCC's fleeting
nudity policy as applied to the Janet Jackson Super Bowl reveal was arbitrary
and capricious. Both it and the Second Circuit were directed to take a second
look at their respective cases after the Supreme Court ruled the FCC
policy was not a violation of procedural rules. The high court did not
weigh in on the constitutionality of the policy.
