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Government Seeks More Time to Appeal Fox Profanity Decision

The Solicitor General (SG) has asked the Supreme Court for a 30-day extension on its deadline to appeal a Second Circuit decision invalidating the FCC's profanity finding against Fox, and by extension its entire indecency enforcement regime. The SG spearheads government litigation in the Supreme Court, including deciding what cases to appeal.

The deadline had been Feb. 20, but according to an attorney who got a copy of the document, the SG has filed what is a pretty standard request for a little more time. According to the attorney, asking for an extension is common practice and granting them even more common. "The court never says no to the SG," he said.

That would give the government until March 22 to file cert in the case, which it is widely expected to do after the Second Circuit denied the FCC's request for a full-court review of the three-judge panel ruling that the FCC's indecency enforcement regime was unconstitutional. (

The High Court had signaled back when it upheld the FCC's decision on other grounds that it expected to get the case back. The court generally takes cases where a government rule has been declared unconstitutional, as was the case when last July, the Second Circuit Court of Appeals threw out the FCC's indecency enforcement policy as unconstitutionally vague and chilling (

The Supreme Court had overturned the Second Circuit's original decision that the policy was an arbitrary and capricious change in policy and remanded the case back to the court for a second look. On second thought, the court said the policy was unconstitutionally vague and chilling. It is that decision the government is expected to challenge.

The case stems from the FCC's conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 were a violation of community standards for broadcasting.