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Government Files Reply Brief in Indecency Challenge

The FCC and Justice Monday defended the FCC's indecency enforcement policy and branded the broadcaster and creative community challenge to its enforcement regime as an "audacious attempt" to overturn Congress' judgment that kids should be protected from indecent material "on the public airwaves."

That came in a reply brief from the Solicitor General to the Supreme Court on behalf of the Obama Administration and the FCC asking the court to reverse lower court decisions smacking down the FCC's indecency enforcement policy. The Solicitor General's office customarily handles Supreme Court appeals of agency decisions.

The Supremes agreed in June to hear the FCC and Justice's appeal of those decisions, and in Monday's brief, they laid out their case for why the FCC was within its authority and was not outside the bounds of First Amendment protections on speech.

The decisions in question are the FCC's indecency finding against Fox TV stations over swearing in awards shows, and its fine of ABC stations for nudity on NYPD Blue. In both cases, lower courts found the FCC indecency enforcement regime to be unconstitutionally vague and chilling.

Their argument is essentially that the indecency enforcement policy, which includes on fleeting and scripted nudity and swearing, is not vague as applied to the broadcasts, is not vague as generally applied, and does not violate the First Amendment.

Broadcast networks have argued that the scarcity rationale has been mooted by a technological revolution in new delivery technologies, but the government says that broadcasters are an important voice, and that the suggestion that spectrum is not scarce flies in the face of the current efforts to free it up for other uses. "The continuing high demand is demonstrated by estimates of how many billions of dollars could be realized if the spectrum broadcasters presently use without charge were auctioned for use by others such as wireless Internet providers," the government said. The FCC and Administration are already trying to free up some of that spectrum for wireless broadband through incentive auction legislation currently being teed up in Congress.

In the case of Fox, while the Solicitor General's brief concedes that Fox did not have notice that the expletives would be considered indecent, that was a moot point because the FCC did not fine it for the violation. "Fox contends that past commission orders involving those words could not have alerted it that the Billboard Music Awards broadcasts would be considered indecent because the prior orders involved the 'repeated' us of expletives," said the brief, "That observation is correct but irrelevant. This court has already held that 'the agency's decision not to impose any forfeiture or other sanction [on Fox] precludes argument that it is arbitrarily punishing parties without notice of the potential consequences of their action."

As for ABC, the government argues that while ABC says that viewing the NYPD Blue nude scene would not harm children, there is no way to establish that since some children cannot be exposed indecent broadcasts to test the theory. "The government therefore has a legitimate interest in keeping such images from [children]."

The government says that if the court overturned the FCC's indecency enforcement authority, anything on cable or the Internet could show up on broadcasting in the middle of the day, and would given an absence of indecency regulation.

Although the National Association of Broadcasters did not ask for not indecency regs in its amicus filing, the brief still points to its brief and NAB's "candid" acknowledgement that it supported "relaxation" of broadcast indecency regs so that broadcasters can better compete with cable and satellite providers who can offer fare broadcasters can't.

To Fox's question of why broadcasters have been singled out for special treatment, the government says it is because broadcasters have gotten "highly favorable regulatory treatment" from the outset of the medium, including the chance to "exploit" a valuable public resource without paying for the privilege, a resource "for which other categories of speaker must pay billions of dollars." It says that the public asks relatively little in exchange, but that one of those is not to air indecent material before 10 p.m.