Trio wants org to be relieved of policing power

Supreme Court cases routinely draw friend-of-the-court briefs from all sorts of interested parties, but one case in particular has raised eyebrows among longtime FCC observers.

Fox TV’s challenge to the Commission’s efforts to hold broadcasters liable for fleeting expletives is due for a hearing in November. And a bipartisan barrage of former FCC officials have thrown their collective weight into a brief arguing that the FCC should be relieved of its power to police the airwaves.

The effort is led by three ex-chairmen –Democrats Newton Minow and James Quello along with Republican Mark Fowler – and it’s the first such advocacy by former officials of that stature. But how much influence will it have on the high court justices?

“They do listen to the voice of experience,” says Patricia Millett, an attorney in the Supreme Court practice of the bluechip firm Akin Gump. “And the fact that it’s bipartisan will carry more weight because it looks less political.”

Essentially, the former FCC toppers say the commission is too vulnerable to political pressure on indecency, as evidenced by the push to expand a three-decade policy of restraint on indecency enforcement into a near-zero-tolerance policy at the urging of Congress and interest groups.

“They make a very compelling argument,” says a veteran Supreme Court observer of the ex-chiefs’ point. “They understand and are sympathetic to the FCC’s task on indecency but experience shows that the commission can’t handle the political pressure.”

No single brief is ever a sole persuading factor, but the combined experience of the three former FCC chairs may speak volumes.

“The court does pay attention when a brief is written in terms of day-to-day work and how a policy is workable or not,” says Millett.

Oral arguments are set for Nov. 4 — Election Day, which could herald change on a lot of fronts.

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