FCC Renews Its Battle to Oversee Indecency

Saying it can’t effectively protect children, it asks the court to take a second look at a July ruling that overturned its ability to impose fines

The feds aren't giving up on their battle to oversee indecency.

The Federal Communications Commission and the U.S. Department of Justice on Thursday asked the 2nd Court of Appeals to take a second look at a July ruling by one of the court’s panels that overturned the FCC’s ability to impose indecency fines.

The government was expected to appeal the case either to the entire 2nd Circuit or to the U.S. Supreme Court.

In July, the court tossed out the FCC’s indecency policy, ruling that it violates the First Amendment and admonishing it for vague rules for enforcement of incidents like the Janet Jackson "wardrobe malfunction" and Bono's Golden Globes f-bomb.

Ruling on an FCC decision that comments by Cher and Nicole Richie on two Billboard Music Awards shows telecast by Fox in 2002 and 2003 were indecent, the court ruled that all the FCC indecency rules were so vague as to be unconstitutional.

The FCC action in the case had been an attempt by the commission to step up enforcement against so-called "fleeting" indecency, most often seen in live telecasts.

In a major victory for Hollywood in general and the broadcast networks in particular, the three-judge U.S. court of appeals panel said the policy was "unconstitutionally vague" and creates "a chilling effect."

The challenge was brought by Fox Television Stations, and joined by NBC, ABC and the Center for Creative Voices.

"The court's decision raised serious concerns about the commission's ability to protect children and families from indecent broadcast programming," FCC general counsel Austin Schlick said in a statement. “The commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals' further consideration of our arguments."

The agencies want either a rehearing of the case or an en banc appeal of the decision by a three-judge panel. The en banc appeal would be to the entire court.  

Thursday's filing came as the FCC and broadcasters await a ruling on a second indecency case: Janet Jackson’s Super Bowl “wardrobe malfunction” in 2004 that led the FCC to fine 20 CBS owned and operated stations $550,000.

Both of the indecency cases have been to the Supreme Court once already. The high court overturned the 2nd Circuit panel’s original ruling that the FCC hadn’t given proper notice of its attempt to step up indecency enforcement.

In Thursday's filing, the government agencies suggested that the panel’s “sweeping” decision “threatens to have a wide-ranging adverse impact on the FCC’s ability to enforce” federal indecency laws.

“The panel’s decision appears effectively to preclude the commission from enforcing broadcast indecency restrictions unless it can develop a new policy that de-emphasizes context.”

Because the Supreme Court had suggested a contextual analysis is needed to determine indecency, the FCC said in its filing that the appellate court decision puts it in an impossible position in enforcing indecency laws of needing an objective standard for one court but a contextual standard for another.

“Rehearing or in the alternative, rehearing en banc is warranted in light of the seeming impossibility of that task, the unnecessary breadth of the panel’s ruling and the multiple conflicts with the decisions [of the Supreme Court and others,]” the filing said.