Fox Wants Supreme Court to Skip Indecency Appeal

Feb 1, 2008  •  Post A Comment

Fox is urging the Supreme Court to reject the Justice Department’s pleas it hear an appeal of a court decision overruling the FCC’s determination that live comments by Nicole Richie and Cher on two Billboard Music Award shows added up to indecency.
In a petition filed today that drew support from ABC and CBS, Fox argued that a 2nd Circuit Appellate Court decision rejecting the new FCC policy that “fleeting expletives” on TV were actionable wasn’t a final decision and thus shouldn’t warrant a Supreme Court review. Fox argued the appellate court had merely returned the FCC’s finding to the agency for a better explanation.
“The 2nd Circuit did nothing more than remand the case to the FCC to provide a fuller explanation of a policy reversal,” said Fox’s petition. “The sky will not fall if the FCC is required to respond to the decision.”
The petition comes as potential implications of the high-stakes fight over the FCC’s indecency enforcement continue to mount. Just last week, the FCC moved to fine 52 ABC affiliates $27,500 each for showing an actress’s bare buttocks during “NYPD Blue.” An appeal of an FCC attempt to fine CBS stations for a Janet Jackson “wardrobe malfunction” during the 2004 Super Bowl telecast also is pending.
The Fox case stems from the FCC attempt to step up indecency enforcement by taking action against stations airing so-called “fleeting expletives”—profane words or images that slip through on live TV. Traditionally the FCC hasn’t taken action on unscripted events, but that policy changed after Bono, while accepting a Golden Globe Award, referred to the award as “f**king brilliant,” prompting congressional outrage.
The Fox case involved comments Ms. Richie and Cher made as presenters on Billboard Music Award shows in 2002 and 2003. The FCC used the comments as an example of the way it would act in the future; it didn’t fine Fox, but said the comments violated indecency rules.
Fox appealed and last June a 2nd Circuit appellate court panel in New York, on a 2-to-1 decision, rejected the toughening, with the court majority saying the FCC offered insufficient justification for changing its traditional stance.
The Justice Department responded by asking the Supreme Court to hear an appeal.
In its petition today, Fox called the FCC effort to step up enforcement a “dramatic expansion of the indecency regime” and suggested it causes confusion.


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