Fox v. FCC heads to Supreme Court

Ruling could cut org's authority over airwaves

The Supreme Court is about to hear arguments on a case that could have the most profound effect on federal regulation of broadcasting in 30 years.

A decision in the so-called fleeting expletives case of Fox v. FCC, skedded for oral arguments Tuesday morning, could sharply cut back — maybe even eliminate — the Federal Communications Commission’s authority to police the airwaves for indecent content, experts say.

On the other hand, a decision could not only uphold FCC indecency authority but also make challenging future indecency fines almost impossible.

All depends on which side’s argument the court will embrace.

In short, the FCC wants the court to focus only on the lower court opinion under appeal, which held that the FCC did not properly justify or explain its new policy on fleeting expletives. Fox, however, wants a review of the constitutionality of the entire FCC indecency regime, on which the Supreme Court has not ruled since the Pacifica decision in 1978.

That decision, involving Pacifica Radio’s broadcast of comedian George Carlin’s “Seven Dirty Words” routine, held that the FCC did have authority to police airwaves because of their ubiquity and predominance but that an indecency finding had to meet strict criteria before it could be issued. For instance, indecent content had to be repeated and deliberate.

In March 2006, the FCC cited Fox for fleeting expletives that celebs Cher and Nicole Richie let fly during the net’s live broadcast of Billboard Music Awards shows in 2002 and 2003, respectively. Cher said of her critics, “Fuck ’em,” and Richie, in describing life on a farm, said “shit” and “fucking.”

The commission did not issue any accompanying monetary fines, saying that, since these citations were part of a new policy, they were to serve more as future guidelines than as punishment.

However, Fox challenged the citations, arguing they signaled an “arbitrary and capricious” change in FCC policy, which for decades had exempted one-time profanities uttered during live broadcasts.

The 2nd Circuit Court of Appeals agreed, ruling in 2007 that the new policy was invalid and would remain so until the FCC better explained and justified it. Via the Justice Dept.’s solicitor general, who represents the government, the FCC asked the Supreme Court to review the ruling, claiming that agency lawyers had indeed explained and justified the new policy sufficiently.

Many experts doubted the high court would take the case, since the appeals court ruling was based on procedural grounds: specifically, that the FCC had failed to enact its new policy according to the dictates of the Administrative Procedure Act.

Constitutional issues were implicit in the case; the 2nd Circuit said even if the FCC could fulfill its APA requirements, it doubted the fleeting expletives policy would pass constitutional muster. But the Supreme Court usually does not accept cases unless constitutional questions are explicitly at the forefront — hence many observers’ surprise that the court accepted the case and their inability to predict how it may play out.

Still, most observers are not expecting a broad ruling on FCC indecency authority from Fox v. FCC. “All sorts of questions are going to come up in the oral arguments, and I’m sure Pacifica will also be discussed,” said one veteran industry attorney. “The question is whether Pacifica will be the basis for any kind of ruling.”

At a recent Media Law Resource Center roundtable discussion on the First Amendment, noted law professor Erwin Chemerinsky said, “The George Carlin monologue was a wonderful expression about society’s hang-ups about language. What a fitting tribute to George Carlin’s memory for the court to overturn the (Pacifica) decision in the year he died.”

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