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ABC Affiliates Weigh In at Supreme Court

ABC stations asked the Supreme Court not to revisit the legal justification for the Federal Communications Commission’s indecency-enforcement standards, but they said the commission was clearly out of bounds to find that a Fox broadcast violated those standards.

The Supreme Court continued to get input from broadcasters Friday as amicus briefs were filed in support of Fox in the FCC's appeal of a lower-court smackdown of its fleeting-profanities decision against Fox for swearing on the Billboard Awards show.

ABC affiliates weighed in and, as with their filing in the Federal Appeals Court challenge to the FCC's indecency ruling against NYPD Blue, they asked the court to rule narrowly that the FCC had violated administrative procedures and the limits of its indecency-enforcement authority by changing policy without notice and going after fleeting utterances.

In their brief, the affiliates said the FCC policy both violated the Administrative Procedures Act and strayed too far from the narrow confines of the Pacifica decision.

But they explicitly said the court did not need to address the underlying constitutionality of the FCC's indecency-enforcement powers. That differs from the filing of the ABC network and other networks, which called on the court to rethink the Pacifica decision, which is the underpinning of FCC indecency enforcement.

"It is not necessary, as some parties have suggested," the affiliates said, "for the Court to revisit its decision in Pacifica, which narrowly affirmed the commission’s then-existing and far narrower indecency-enforcement policy."

hey also differed from the networks in not asking the court to reconsider the entire broadcast-regulatory framework, saying it was also not necessary "to revisit Red Lion Broadcasting Co. vs. FCC, 395 U.S. 367 (1969), which affirmed the statutory public-trustee regulatory framework for the broadcast media."

While the networks argued that the court should revisit Red Lion, the ABC affiliates went out of their way to reinforce the doctrine.

"While there has been, as some parties have observed, an increase in recent years in the number of broadcast stations and in audio- and video-distribution technologies," the affiliates said, "the laws of physics have not changed. It is still not possible for more than one entity to operate, without destructive interference, at the same time on a specific broadcast channel in the same local area."

Red Lion's spectrum-scarcity rationale underpins much of the FCC's authority to regulate any broadcast content, including public-interest and kids’-programming requirements.