Agency says ruling 'all but impossible' to enforce

Fearing the loss of much of its ability to restrict indecent content, the FCC Thursday asked a federal appellate court to reconsider its ruling that the commission’s policies used to crack down on the utterance of single expletives were “unconstitutionally vague.”

The filing of the appeal was the clearest acknowledgement yet by the Federal Communications Commission that its ability to restrict indecent content may be in jeopardy, particularly if the case lands in the Supreme Court.

The FCC petitioned for a rehearing with the 2nd Circuit Court of Appeals, arguing that the court’s previous decision was inconsistent with judicial precedent and that it would be “all but impossible” to “develop effective indecency guidelines under the panel’s strictures.” At stake, the FCC said, was the transformation of the public airwaves from a safe haven for children to an atmosphere of foul language and coarse entertainment that mirrors the content found on cable.

The Supreme Court last year upheld the FCC’s decision on “fleeting expletives” on administrative grounds but left the broader constitutional concerns for the Second Circuit to consider.

The FCC request for a rehearing, rather than an appeal directly to the Supreme Court, essentially buys time in a legal battle that may very well end up at the high court anyway. But by then, there will likely be other decisions rendered as the broadcast networks challenge the commission on other fronts.

For example, CBS is awaiting a ruling from the 3rd Circuit Court of Appeals on the 2004 Super Bowl halftime show that included a flash of Janet Jackson’s breast during the now infamous “wardrobe malfunction,” which triggered the wave of congressional inquiry and action. And ABC is awaiting a decision from the 2nd Circuit on a flash of nudity in an episode of “NYPD Blue.”

The fleeting expletives case stems from the FCC prohibition, starting in 2004, on “fleeting expletives,” including separate instances in which Cher and Nicole Richie dropped f-bombs during Fox’s live telecast of the Billboard Music Awards.

The appeals court found in July that the FCC’s policy “creates a chilling effect that goes far beyond the fleeting expletives at issue here.”

“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills free speech, because broadcasters have no way of knowing what the FCC will find offensive,” the court stated in its opinion.

The Second Circuit had said that there was little “rhyme or reason” to the FCC’s policies because it punished the use of “fleeting expletives” in some cases but not in others, such as during the broadcast of the movie “Saving Private Ryan,” in which soldiers repeatedly utter profanities.

But in its filing submitted by its legal team led by general counsel Austin Schlick, the FCC argued that the appellate court’s decision left it in a “Catch-22″ situation, as it called for “extreme precision” in indecency rules, yet any such across-the-board prohibition of words or images would raise “grave First Amendment concerns.”

The FCC argued that while the Supreme Court’s landmark Pacifica decision in 1978 — involving a federal crackdown on a radio broadcast of a George Carlin monologue — focused on the famous “seven dirty words,” it also gave the commission some leeway. After the Pacifica decision, the FCC initially limited its enforcement to those seven words, but it found that approach ineffective and later adopted a more generic definition of indecency that also considered the context of potential violations.

The appellate panel’s decision “appears effectively to preclude the commission from enforcing federal broadcast indecency restrictions unless it can develop a new policy that de-emphasizes context (in order to survive the panel’s vagueness analysis), and yet simultaneously respects the Supreme Court’s endorsement of a contextual analysis,” the FCC said.

A spokesman for Fox declined comment on the FCC’s appeal.

Parents Television Council president Tim Winter praised the FCC’s decision to appeal.

“Without further court action, the Second Circuit ruling would kick down the door for indecent content to be aired at any time of the day over the public airwaves — even in front of children,” he said in a statement.

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