[opendtv] FCC Appeals Fox Indecency Ruling
- From: "Manfredi, Albert E" <albert.e.manfredi@xxxxxxxxxx>
- To: "opendtv@xxxxxxxxxxxxx" <opendtv@xxxxxxxxxxxxx>
- Date: Tue, 31 Aug 2010 16:41:03 -0500
Strange situation. On the one hand, one would have expected a "liberal leaning"
FCC to not continue to be so hung up on "fleeting expletives" or on the (IMO)
quite unobjectionable NYPD episode of years ago. On the other hand, one would
expect today's activist FCC to want to get into as many decisions as they
possibly can. Maybe "liberal leaning" is trumped by the fact that they are
going against mega-conglomerates, which becomes a virtue no matter what the
cause.
Also, arguing your case again with the same group of judges strikes me like
trying to argue with the cop that stopped you for speeding. If the judges, or
the cop, agree with you, it must mean that they had been wrong before. Not very
likely.
Bert
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http://www.broadcastingcable.com/article/456402-FCC_Appeals_Fox_Indecency_Ruling.php
FCC Appeals Fox Indecency Ruling
Says court's decision makes coming up with new enforcement policy a "seeming
impossibility"
By John Eggerton -- Broadcasting & Cable, August 26, 2010
The FCC, with the backing of the Justice Department, has appealed a Second
Circuit's Court of Appeals decision that its indecency enforcement policy is
unconstitutionally vague, saying the ruling was unnecessarily broad and made
coming up with a new indecency enforcement policy that would pass muster with
the courts a "seeming impossibility."
In a petition for rehearing by either the same three-judge panel or the full
court, the FCC said that the court had "all but ignored" the specific facts of
the case, which was about fleeting profanities in Billboard awards show
broadcasts on Fox, to the focus on other decisions that the court "believed
rendered the Commission's underlying context-based
framework...unconstitutionally vague."
The FCC has signaled it would likely challenge the Fox decision earlier this
week in a filing to the same court on ABC's challenge to its indecency fine of
nudity on NYPD Blue.
The FCC said that as it stood, the Fox decision prevented it from enforcing its
indecency policy without both developing a regime that deemphasizes contextual
analysis, which the court said led to the unconstitutional vagueness of the
policy's application, while at the same time "respects the Supreme Court's
endorsement of a contextual analysis."
The commission called that a "seeming impossibility," and said the court would
need to rehear the case. It cited "decisions of the Supreme Court, this Court,
and the D.C. Circuit that have been created by the panel's misapplication of
constitutional vagueness analysis."
It said that the court's sweeping ruling was at odds with the Supreme Court's
decision in the 1987 Pacifica Case that context was "all important," adding:
"The panel's decision thus conflicts with Pacifica and fails to adhere to this
Court's (and the D.C. Circuit's) rejection of earlier challenges to the
Commission's definition of indecency."
The FCC took a shot at cable in its filing. It said the ruling might force it
to return to a "failed enforcement policy" that would allow broadcasters to
mirror the "foul language" and "coursening of public entertainment" the
commission ascribes to other media, "such as cable."
"The FCC and the Justice Department are today asking the federal court of
appeals in New York to reconsider its decision in Fox v. FCC," said FCC General
Counsel Austin Schlick. "The three-judge panel's decision in July raised
serious concerns about the Commission's ability to protect children and
families from indecent broadcast programming. " That said, Schlick added: "The
Commission remains committed to empowering parents and protecting children, and
looks forward to the court of appeals' further consideration of our arguments."
"The FCC's challenge of the Second Circuit ruling is an important step in the
right direction," said PTC President Tim Winter. "Without Supreme Court action,
the Second Circuit ruling would kick down the door for indecent content to be
aired at any time of day over the public airwaves - even in front of children,"
said PTC President Tim Winter.
The Supreme Court has not been asked to rehear the case, but it is widely
expected to be appealed to the high court if the Second Circuit does not grant
the petition for rehearing, or by one or the other side if it does take the
appeal and render a new ruling.
The National Association of Broadcasters declined comment.
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