The Federal Communications Commission, with the backing of the Justice Department, has appealed a Second Circuit's Court of Appeals decision that its indecency enforcement policy is unconstitutionally vague, saying the ruling was unnecessarily broad and made coming up with a new indecency enforcement policy that would pass muster with the courts a "seeming impossibility."
In a petition for rehearing by either the same three-judge panel or the full court, the FCC said that the court had "all but ignored" the specific facts of the case, which was about fleeting profanities in Billboard awards show broadcast on Fox, to the focus on other decisions that the court "believed rendered the Commission's underlying context-based
The FCC has signaled it would likely challenge the Fox decision earlier this week in a filing to the same court on ABC's challenge to its indecency fine of nudity on NYPD Blue.
The agency said that as it stood, the Fox decision prevented it from enforcing its indecency policy without both developing a regime that deemphasizes contextual analysis, which the court said led to the unconstitutional vagueness of the policy's application, while at the same time "respects the Supreme Court's endorsement of a contextual analysis."
The commission called that a "seeming impossibility," and said the court would need to rehear the case. It cited "decisions of the Supreme Court, this Court, and the D.C. Circuit that have been created by the panel's misapplication of constitutional vagueness analysis."
It said that the court's sweeping ruling was at odds with the Supreme Court's decision in the 1987 Pacifica Case that context wa "all important," adding: "The panel's decision thus conflicts with Pacifica and fails to adhere to this Court's (and the D.C. Circuit's) rejection of earlier challenges to the Commission's definition of indecency. "
The FCC took a shot at cable in its filing. It said the ruling might force it to return to a "failed enforcement policy" that would allow broadcasters to mirror the "foul language" and "coursening of public entertainment" the commission ascribes to other media, "such as cable."
"The FCC and the Justice Department are today asking the federal court of appeals in New York to reconsider its decision in Fox v. FCC," said FCC general counsel Austin Schlick. "The three-judge panel's decision in July raised serious concerns about the Commission's ability to protect children and families from indecent broadcast programming. " That said, Schlick added: "The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals' further consideration of our arguments."
"The FCC's challenge of the Second Circuit ruling is an important step in the right direction," said PTC president Tim Winter. "Without Supreme Court action, the Second Circuit ruling would kick down the door for indecent content to be aired at any time of day over the public airwaves - even in front of children."
The Supreme Court has not been asked to rehear the case, but it is widely expected to be appealed to the high court if the Second Circuit does not grant the petition for rehearing, or by one or the other side if it does take the appeal and render a new ruling.