Attorneys for three broadcast networks told the Supreme Court on Friday that it has no reason to grant the FCC’s request for review of a lower court decision last year that tossed out the agency’s new policy on fleeting expletives.
In a joint opposing brief filed with the high court, Fox, CBS and ABC argued that “there is nothing unusual about this case” that would merit the high court’s attention and the FCC’s request for review should thus be denied.
NBC plans to file its own supporting brief. No Peacock show is involved, but the net does have an appeal pending regarding a separate indecency finding against the net for a fleeting expletive on a live broadcast.
Notable was Alphabet’s return to the case, which originally involved an indecency finding against an episode of “NYPD Blue” as well as against an Eye program and two live Fox broadcasts. When the FCC withdrew the finding against both “Blue” and the CBS show, ABC withdrew from the case; CBS, which has separately challenged the FCC’s $550,000 fine for the Janet Jackson breast flash, remained.
Then on Jan. 25, the FCC issued its second largest indecency fine for a TV broadcast -- $1.4 million -- against Alphabet for a different episode of “Blue.” ABC has said it will challenge the fine.
The FCC’s request for review involved two live broadcasts by Fox in 2003 and 2004 during which celebrity guests uttered “fuck” and “shit” or variations of the words. Last summer, Fox asked the 2nd Circuit Court of Appeals to invalidate the findings, arguing that for decades the FCC had not fined broadcasters for so-called fleeting expletives in a live context. Moreover, the FCC had failed to sufficiently explain or justify its change of policy, attorneys claimed.
The court agreed, tossing out the fines and ordering the FCC to provide a better explanation and justification for the new policy.
In its request for Supreme Court review of that decision, the FCC argued that it had done everything in necessary and proper fashion.
In their joint brief filed Friday, the three nets argued that the 2nd Circuit decision was clear and consistent with Supreme Court precedent on broadcast indecency and that the judges had correctly decided the case on administrative -- not constitutional -- issues.
The appeals court “did nothing more than remand the case to the Federal Communications Commission to provide a fuller explanation for a policy reversal,” network lawyers argued. “As petitioners correctly concede, such a case does not typically merit this court’s review. There is nothing unusual about this case that changes that conclusion.
“There is no conflict among the courts of appeals on the straightforward administrative law issue decided by the 2nd Circuit,” they continued. “Nor did the 2nd Circuit decide any important question of administrative law in a way that conflicts with this court’s precedents.”
If the Supreme Court were to grant the FCC’s request and hear the case, it would be the first broadcast indecency dispute the court has heard since 1978 and the first ever involving television. The earlier case involved radio.
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