The National Religious Broadcasters has called on the FCC to appeal the Second Circuit's smackdown of FCC indecency enforcement regime to the Supreme Court.
A three-judge panel of The Second Circuit Court of Appeals ruled July 13 that the FCC's indecency finding against swearing on Fox award shows was unconstitutional, as was the policy behind it.
"While understanding the difficult challenge faced by broadcasters who could be charged with â€˜fleeting' indecency violations over which they had little or no control," said NRB president Dr. Frank Wright, "the court has unfortunately created an indecency loophole through which you can drive a truck."
The FCC has a number of options. It can appeal the three-judge decision to the full-court of appeals, it can wait to see what the Third Circuit rules in its remand of the Janet Jackson indecency fine against CBS-owned stations, it can appeal directly to the Supreme Court or it could try to craft a constitutional indecency policy. The court did not rule that such a policy could not be crafted, only that the FCC had not done so with its justification of fleeting profanity enforcement.
FCC commissioner Michael Copps suggested the FCC should take that last route in a statement after the decision. Copps said he, too, hoped the FCC would appeal, and thought the court had made the wrong call about the constitutionality of the policy. But in the meantime, he wanted the FCC to clarify its authority. "In light of the uncertainty created by today's decision, I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day," he said.