Washington – The Justice Department is planning to ask the U.S. Supreme Court to uphold the authority of the Federal Communications Commission to punish TV stations for the isolated and fleeting broadcast of the F-word.
The decision to seek high court review was disclosed Sept. 24 in a Justice Department filing that sought until Nov. 1 to file the official documents the court requires to consider the case. Associate Justice Ruth Bader Ginsburg on Wednesday approved the Nov. 1 extension request sought by U.S. Solicitor General Paul Clement.
In early June, a panel of the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC’s crackdown on the fleeting broadcast of the F-word violated the Administrative Procedure Act because the agency failed to supply a reasoned explanation for its tighter enforcement of broadcast indecency laws.
The panel, in 2-1 vote, also observed that it didn’t believe the FCC could fashion a constitutional policy on fleeting indecency, which the FCC had declined to punish as indecent for decades. The FCC may fine a TV station up to $325,000 for each indecency violation.
FCC chairman Kevin Martin, who denounced the 2nd Circuit ruling, applauded the Justice Department’s support, which improved the odds that the FCC will get a hearing from the Supreme Court.
“I am pleased that the Solicitor General will be seeking Supreme Court review of the Second Circuit's decision. I continue to support the [FCC’s] efforts to protect families from indecent language on television and radio when children are likely to be in the audience,” Martin said in a statement Wednesday evening.
Four of nine members of the Supreme Court are needed to docket a case. Although the court reviews thousand of appeals annually, it agrees to hear about 80 to 100 cases a year.
FCC rules ban the broadcast of indecent material from 6 a.m. to 10 p.m. in an effort to shield children inappropriate language and images. The rules do not apply to cable television.
A bill sponsored by Sen. John D. (Jay) Rockefeller (D-W.Va.) that would overturn the 2nd Circuit ruling passed the Commerce Committee. A similar House bill was introduced last week by Rep. Chip Pickering (R-Miss.), who is not seeking re-election next year.