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By John Eggerton -- Broadcasting & Cable, 3/17/2008 12:38:00 PM

The court Monday granted cert (agreed to hear) Fox’s and others’ appeal of a lower-court ruling that the Federal Communications Commission's fleeting-profanity policy was insufficiently justified, arbitrary and capricious.

The court will likely hear the case in the fall, which means that the FCC’s profanity-enforcement regime remains in limbo until then.

"The issue now is how far the parties can persuade the court to go,” said John Crigler, a partner with Garvey Schubert Barer and a prominent First Amendment attorney. The key now, he added, is “whether it is just going to look at the administrative issue of whether the commission gave a rational explanation for its regulation or whether the court will go further and reach constitutional underpinning of indecency regulation itself.”

Crigler continued, “The communications lawyers were betting that the court wouldn’t take the case because the grounds with which it was decided were not constitutional grounds, but administrative procedure. The courts, including the Supreme Court, decide cases on nonconstitutional grounds if they can, but the peculiar mix of administrative procedure and constitutional issues may have piqued the court’s interest [in this case].”

Another prominent First Amendment attorney who asked not to be identified said he believes the FCC’s “entire indecency regime is going to come under review, which will probably delay decisions by both the commission and the courts reviewing other indecency decisions. They didn’t grant cert to review the decision about whether the FCC changed its [indecency] standard without explanation," he said, suggesting that the court would not take up its time with that issue. "It's to review the questions the Second Circuit remanded about the FCC's indecency-enforcement regime." Those include whether broadcasting is “uniquely pervasive” any longer and the impact of the V-chip ratings system.

The Supreme Court has already held that blocking technology in cable is a better way to control content than government-imposed programming restrictions.

The Justice Department and FCC had told the Supreme Court in arguing for it to take the case that unless it weighed in on the FCC’s fleeting-profanity-enforcement regime, the commission's regulatory power will be "severely undermined," even in cases of nonfleeting profanity.

The FCC had argued in its filing that the Second Circuit decision meant that the commission could no longer take context into account when regulating indecency, which would put the decision in conflict with the court's decision in the Pacifica case (the so-called seven dirty words case).

Fox and company countered that this was a fundamental misreading of the case, and that the Second Circuit was simply asking the FCC to better justify its change in policy after 30 years of not cracking down on isolated or fleeting profanities.

At issue were profanities uttered by Nicole Richie and Cher in 2002 and 2003 during Fox broadcasts of the Billboard Music Awards, as well as those on CBS' Early Show. Kevin Martin was not FCC chairman at the time of the violations, but he has been vigorous in his support of the fleeting-profanity and nudity-enforcement policy.

The FCC found the utterances indecent as part of an omnibus March 2006 order that did not levy fines against some shows but indicated which shows the commission deemed indecent in an effort to provide guidelines for broadcasters. Martin said at the time that broadcasters had asked for such guidance.

Sen. Jay Rockefeller (D-W. Va.) tried to clear up the issue by giving the FCC clear powers to regulate fleeting words and images.

Commenting on Monday's Supreme Court action, Fox released the following statement: “Fox is pleased that the Supreme Court has decided to hear this case involving fleeting expletives in live TV shows, as this will give us an opportunity to demonstrate once again the arbitrary nature of the FCC’s decision in this and similar cases. It will also give us the opportunity to argue that the FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace, where parents have access to a variety of tools to monitor their children’s television viewing.”

National Association of Broadcasters executive vice president Dennis Wharton said: "The NAB is pleased that the Supreme Court agreed to review this case and that justices will provide badly needed clarity to both broadcasters and policymakers on this critically important First Amendment case. We're confident that whatever the outcome of this case, local radio and television stations will be mindful of broadcasting's long history of providing programming that will reflect and respect the audiences that we serve."

The Parents Television Council weighed in, as well: “Millions of families are grateful that the Supreme Court has decided to review this indecency case,” president Tim Winter said in a statement. “Such harsh, unedited profanity is unacceptable for broadcast over the publicly owned airwaves when children are likely to be watching. By a mere 2-1 margin, the Second Circuit Court of Appeals decision had, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry. We also praise the Solicitor General and the FCC chairman for their efforts to bring this case to fruition in order to protect our children.”

Winter added, “Despite the proliferation of various forms of media over the past 25 years, broadcasting is every bit as pervasive today as was at the time of the Pacifica decision. Broadcasters are only given a license to use the airwaves in the public interest and convenience. Therefore the American people have a reasonable and time-honored expectation that the airwaves will be used in a manner that is beneficial to them. If broadcasters feel they absolutely must do so, they can legally air indecent material after 10 p.m.”

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