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FCC: Fox Decision Suggests Indecency Regime Is Unconstitutional

The FCC conceded Monday that the Second Circuit Court of Appeals ruling that its indecency enforcement regime is unconstitutionally vague bears directly on its fine for nudity in a 2003 episode of NYPD Blue, but says that the same court should hold off on reaching any decision on ABC's appeal of that fine until the U.S. government decides whether or not to petition to appeal the Fox ruling.

Given that the deadline for that petition is Aug. 27, the government seemed to be signaling it would likely challenge that Fox decision.

That came in a supplemental brief solicited by the Second Circuit after it made that Fox ruling. The court wanted to know what impact that decision had on ABC's challenge to the FCC's 2008 ruling that nudity in a 2003 episode of NYPD Blue was indecent.

The FCC said that NYPD Blue's scripted airing of images of adult nudity (actress Charlotte Ross's backside) was different from the "gratuitous utterances" during a live awards show. But it conceded that the court's decision went beyond the specifics of the cases to the larger issue of the commission's indecency oversight authority.

"The panel's opinion in Fox does not turn on such distinctions, however. Rather, the panel in Fox held that the Commission's contextual approach to applying the federal indecency statute is inconsistent with constitutional requirements, and accordingly invalidated the Commission's indecency policy in its entirety," the FCC said in a brief that lived up to its name at only four pages worth of background and discussion. "Because the contextual framework the Commission applied in Fox is the same one it applied in this case, the Fox decision appears to suggest that the Commission's indecency policy is unconstitutionally vague even as applied to the very different facts of this case," it said.

The FCC said it and Justice were contemplating filing a petition for a full-court rehearing of the Fox ruling, which was a three-judge panel decision rendered last month. The court won't have long to wait for that decision, since the deadline for petitioning that decision is Friday (Aug. 27).

"Because of the substantial adverse consequences of the Fox panel's decision for federal broadcast indecency enforcement and the decision's inconsistency with precedent of the Supreme Court, this Court, and other courts of appeals," said the FCC, "the interested agencies of the Federal Government are considering whether to file a petition."
But seeming to suggest the government may be leaning toward a challenge, the brief continued: "it would be appropriate to defer issuing a merits decision in this case until the Court has had an opportunity to resolve any rehearing petition filed in Fox. If rehearing is granted, that action will have obvious implications for this case. If rehearing is denied, the Court would then be positioned to dispose of this case in light of the recent decision in Fox."