FCC seeks high-court review of ‘fleeting expletives’ ruling

Lawyers for the Federal Communications Commission have formally asked the U.S. Supreme Court to review a lower court’s rejection of the agency’s policy on broadcast profanity.

In June, the U.S. 2nd Circuit Court of Appeals in New York nullified the agency’s enforcement policy on “fleeting expletives” by a 2-1 vote, saying the FCC had changed its policy and failed to adequately explain why.

The case involved two airings of the Billboard Music Awards in which celebrities’ expletives were broadcast.

After a challenge by Fox Broadcasting Co. and others, the court nullified the policy until the agency could return with a better explanation for the change. In the same opinion, the court also said the agency’s position was probably unconstitutional.

“The court has thus sent the commission back to run a Sisyphean errand while effectively invalidating much of the commission’s authority” to enforce indecency rules, reads the appeal, filed with the Supreme Court on Thursday.

The Solicitor General’s Office, which argues cases before the Supreme Court on behalf of government agencies, argued that the appeals court decision had left the agency “accountable for the coarsening of the airwaves while simultaneously denying it effective tools to address the problem.”