The U.S. Solicitor General has signaled his intent to ask the Supreme Court to review a recent appeals court decision invalidating the FCC’s rule against the use of fleeting expletives on the air.
In requesting a routine deadline extension until Nov. 1 for filing a petition at the Supreme Court, U.S. Solicitor 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.” Approval of such an extension is usually granted automatically.
In a ruling in June, the U.S. 2nd Circuit Court of Appeals found that the FCC was unjustified in creating a policy that fined broadcasters for the use of fleeting expletives on live broadcasts. The case involved two airings of the “Billboard Music Awards” in which expletives were broadcast by FOX.
Appealing the decision to the Supreme Court is a major risk for the FCC, because it could result in the commission losing its authority to regulate broadcast content. A 1978 Supreme Court decision that shaped 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.
In June, the appeals court found that an FCC shift on indecency issues that began in 2006 under the Bush administration was not adequately explained or justified. As a result, the court invalidated the policy. Under legal procedures, the appellate court was required to address the case on the most basic grounds first. For that reason, the June decision was based on procedural, rather than constitutional grounds.
Broadcasters challenging the FCC’s policy have raised constitutional issues in their briefs. However, the appeals court decision included a 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.
In another case, the 3rd Circuit Court of Appeals is currently deciding the CBS appeal of the FCC’s $550,000 fine against its stations for Janet Jackson’s wardrobe malfunction during a Super Bowl halftime show.
The outcomes of the two cases are expected to decide the fate of the FCC’s recent indecency campaign.