FCC seeks Supreme Court review

Agency fights for policy on fleeting expletives

The Federal Communications Commission has decided to seek Supreme Court review of a recent decision invalidating the agency’s policy of citing broadcasters for fleeting expletives.

In asking the high court for an extension of the deadline to submit request for review, U.S. Solicitor General Paul D. Clement said he has “decided to authorize the filing of a petition for a writ of certiorari in this case. The additional time sought in this application is necessary to permit the preparation and printing of the petition.”

The solicitor general’s office represents federal agencies before the Supreme Court, which is formally asked for review of a lower court decision via writs of certiorari.

In June, the U.S. 2nd Circuit Court of Appeals slapped the FCC for having unjustifiably instituted a policy of citing and fining broadcasters for fleeting expletives uttered on live shows — a case stemming from U2 frontman Bono’s use of “fucking” on NBC’s 2003 telecast of the Golden Globe Awards. The 1978 Supreme Court decision guiding FCC indecency policy exempted one-time profanities, acknowledging that broadcasters can’t always catch everything, particularly when they don’t know an expletive will be said.

The appeals court ruled that the FCC’s shift in 2006 to begin citing broadcasters for fleeting expletives was not adequately explained or justified and therefore invalidated the policy. The court also barred the agency from implementing the policy until FCC lawyers provided sufficient explanation or justification.

Required to address cases on the simplest grounds first, the appeals court made its decision based only on procedural grounds and thus could not address constitutional issues that broadcasters raised in their briefs. However, the court’s decision included a long section expressing doubt that even if the FCC could come up with a procedural explanation for the new policy, it would not withstand challenge on constitutional issues.

“It’ll be interesting to see if the Supreme Court takes the case,” said one industry lobbyist. “They usually don’t take cases (decided on procedural grounds). If they do take it, I can’t help but think it’s because they will want to get to the constitutional issues, which is a good sign for broadcasters.”

If the court takes the case, it will be the first — and, to many observers, a long-overdue — review of FCC indecency authority in almost 30 years.

Clement asked for an extension to Nov. 1 to file for a writ.

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