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FCC Takes a Pass On Full-Court Profanity Appeal

The FCC has decided not to seek a full-court review of the Second Circuit Court of Appeal’s ruling that its “fleeting profanity” findings against Fox were “arbitrary and capricious.” But the commission could still appeal the decision directly to the U.S. Supreme Court.

On June 4, a three-judge panel ruled 2-1 that the commission had not justified its decision to declare as indecent fleeting expletives in two Fox music-awards–show broadcasts, a reversal of long-standing policy.

An FCC staffer with knowledge of the decision confirmed to B&C that the deadline for filing an appeal before the entire appeals court had passed (it was July 19) and that no petition for review has been filed.

Although the deadline for the Second Circuit was 45 days, the commission is allowed 90 days after the appeals court ruling to decide whether to seek review by the high court.

Senate Commerce Committee Chairman Daniel Inouye (D-Hawaii) and the Parents Television Council, among others, have urged the FCC to pursue such action.

The FCC did not like its chances in the Second Circuit, says the FCC staffer. The appeals court averages only one en banc, or full-court, review a year, and the commission’s appeal “wasn’t likely to be fruitful,” says the source, who would not comment on prospects for a Supreme Court review.

Strong Language

FCC Chairman Kevin Martin had made it clear he didn’t think much of the commission’s chances in the Second Circuit, given the strong language of the decision.

The appeals court essentially invalidated the FCC’s indecency ruling against Fox for airing expletives during its live broadcasts of the Billboard Music Awards in 2002 and 2003. It also called into question the similar finding against Bono’s “fucking brilliant” remark on NBC that triggered the FCC’s crackdown on swearing.

The court told the commission it could try to clarify its policy change, although it did not give it much hope of succeeding.

Although it did not reach issues of constitutionality, the court majority weighed in on the matter anyway, suggesting that the FCC’s entire indecency-enforcement regime could be on shaky ground.

The Senate Commerce Committee, under Inouye, tried to shore up that ground on July 19, when it passed a bill that would explicitly grant fleeting-expletive–enforcement authority to the FCC—essentially restoring the power the court had stripped. That bill still needs to pass the full Senate and House, though, which is an uphill climb.

Congressional Action Unlikely

Although there was interest from both sides of the aisle in getting a floor vote before the August recess, that is highly unlikely. The Senate floor is pretty much wall-to-wall Homeland Security appropriations until the recess, which is scheduled to start Friday, Aug. 3.

According to one veteran communications attorney, at a policy breakfast with broadcasters at the National Association of Broadcasters in Washington last week, House Telecommunications Subcommittee member John Shimkus (R-Ill.) said he was not high on the bill’s chances in that body.

Meanwhile, the pending Senate legislation could give Martin the opportunity to pass on seeking Supreme Court review and allow for congressional action on the decision.

A number of veteran communications attorneys have said that the Solicitor General would be reluctant to seek high court review of the case (B&C, 6/11, p. 3), and one suggested that Martin may want to defer to potential congressional action.

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