2nd Circuit Throws Out FCC’s $1.2 Million Indecency Fine, Won’t Rehear Fox Case
A $1.2 million indecency fine against 44 ABC affiliates was vacated Tuesday by the 2nd U.S. Circuit Court of Appeals in New York. The decision cited a Supreme Court ruling sending back to the FCC its policy that fleetingly indecent content could be found indecent. The 2nd Circuit also revealed that it recently turned down a U.S. government request that the court rehear en banc its affirmance of its earlier Fox ruling (CD July 14 p1). That puts all eyes back on the Supreme Court, which the government is expected to ask to hear Fox, said advocates on both sides of the issue.
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The new decision said there are “no significant distinctions” between ABC v. FCC and Fox v. FCC, which related to unscripted curse words spoken by celebrities during the Billboard Music Awards broadcast on the News Corp. network in 2002 and 2003. In the ABC case, the network paid the entire fine that the commission imposed in 2003 on two affiliates owned by Disney and 42 stations owned by other companies, and then appealed. An episode of NYPD Blue shown on the 44 stations showed the buttocks of a woman preparing to shower. “In Fox, the FCC levied fines for fleeting, unscripted utterances of ‘fuck’ and ’shit’ during live broadcasts,” the 2nd Circuit said. Although ABC “involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found ‘impermissibly vague,'” it continued.
"The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague,” said the ruling (http://xrl.us/bidqvo). “Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds this panel.” ABC is “pleased” with the decision and has “always believed that this 2003 episode of the long-running and acclaimed series NYPD Blue was not indecent and that the fines were unwarranted and unconstitutional,” a spokeswoman said. The ruling “confirms” what the FCC has “already said,” agency General Counsel Austin Schlick wrote. “The Court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases."
The ABC decision is considered an unpublished one and has no precedential effect, said Senior Vice President Andrew Schwartzman of the Media Access Project, which participated in that and the Fox case on the broadcasters’ side. An important part of the ruling is that it makes public that the full 2nd Circuit decided in late November against rehearing its earlier decision on Fox, said Schwartzman and an industry executive. The government is now likely to appeal that decision to the Supreme Court, said those who favored the high court’s Fox decision and a critic. The commission hasn’t decided how to proceed, a spokesman said.
The decision not to hear the case en banc was expected (CD Aug 27 p5). It shifts attention again on indecency to the Supreme Court, said those on both sides of Fox. “That appears like that is going to be the next step in the process,” said Policy Director Dan Isett of Parents Television Council, which asks members to send the commission indecency complaints. “I think they have very little choice,” he said of a government appeal to the Supreme Court. Schwartzman said of Fox, “The government either has to accept the decision and completely rewrite its policy or, as it almost certainly will do, ask the Supreme Court to rehear it.”