Second Circuit Schedules Oral Argument in Fox Vs. FCC


The Second Circuit Court of Appeals in New York has scheduled oral argument in Fox vs. the Federal Communications Commission for Jan. 13, according to one of the attorneys involved in the case.

The court will give each side 22 minutes for argument, which doesn't sound like much but is "an eternity" for that circuit according to a lawyer who should know.

The court is hearing the case on instructions from the Supreme Court, which overturned the Second Circuit's decision that the FCC's crackdown on fleeting profanity was arbitrary and capricious and remanded the decision back to the court.

The FCC concluded that the "vulgar expletives" uttered by Cher and Nicole Richie during a Fox 2002 broadcast of the Billboard Music Awards were a violation of community standards for broadcasting.

The Second Circuit can now get into the First Amendment issues raised by that indecency decision, but which it did not reach in the first go-around.

In a nonprecedential part of the court's original opinion, the court signaled the FCC would have a high hurdle on the First Amendment issue. It was nonprecedential because the court did not reach past the procedural issues to make its ruling, so did not get into the speech issues. Courts historically steer clear of constitutional questions if the appeal can be decided on narrower grounds.

Now that the High Court has said the FCC followed the proper procedure, the Second Circuit can get into the First Amendment arguments, which broadcasters hope means a finding that the policy is unconstitutional.