Supreme Court ruling doesn’t touch FCC’s indecency rules

The Supreme Court vacated a lower court decision that the Federal Communications Commission’s enforcement of its indecency rules was unconstitutional.

The ruling is a blow for broadcasters, who were hoping that the high court would toss the FCC’s ability to police content on radio and television.

The decision arose out of challenges to the FCC’s indecency rules by News Corp,’s Fox and Walt Disney Co.’s ABC. The broadcast industry has argued for years that the FCC’s rules and how they are enforced are vague and unconstitutional.

ABC’s case stemmed from a $1.4-million fine the FCC hit the network and some of its affiliates with in 2008 for a 2003 episode of the police drama “NYPD Blue.” In that episode, the buttocks of actress Charlotte Ross were visible to viewers. ABC fought the fine and, in January, the U.S. 2nd Circuit Court of Appeals in New York threw it out.

Fox’s battle emerged from incidents in 2002 and 2003, when Cher and Nicole Richie cursed during live awards shows. In 2004, the FCC declared Fox could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. Although the FCC never followed through with any fine, Fox fought that ruling and -- as was the case with ABC -- the 2nd Circuit sided with the network.

The FCC appealed those rulings to the high court, which tied the cases together.

Although the Supreme Court refused to address whether the FCC’s indecency rules and the enforcement of them was unconstitutional, it did find that the agency did not give ABC and Fox “fair warning” that they could be fined for so-called “fleeting expletives” and nudity.

“Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague,” wrote Justice Anthony Kennedy.

However, he added, “because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy.”

Fox said it was pleased with the finding that the FCC did not comply with due process requirements. With regards to the broader 1st Amendment implications that the court did not address, Fox said, “Those issues remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future.”

“We’re pleased with the decision of the Supreme Court regarding the episode of ‘NYPD Blue,’ and we are reviewing the entire ruling carefully,” an ABC spokeswoman said.

Andrew Schwartzman, counsel for the Center for Creative Voices, said he was disappointed the Supreme Court essentially punted on the constitutional questions of the FCC’s indecency rules.

“The court’s decision quite correctly faults the FCC for its failure to give effective guidance to broadcasters. It is, however, unfortunate that the justices ducked the core 1st Amendment issues. The resulting uncertainty will continue to chill artistic expression,” Schwartzman said.

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