U.S. Appeals Court in N.Y. Seen as Friendly Forum for Indecency Case
Challenges to FCC indecency rulings will get a friendly reception at U.S. Appeals Court, N.Y., where petitions for review by major networks (CD April 17 p1) are expected to be heard, said industry officials and lawyers not involved in the case. Sources said they expect a petition for review by ABC and Hearst-Argyle filed Fri. in U.S. Appeals Court, D.C., to be consolidated with a Thurs. filing by CBS and Fox in N.Y. Consolidation would boost chances of a favorable outcome, since that court is known for giving the govt. less leeway while broadly interpreting First Amendment rights, we're told.
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“The 2nd Circuit is broad-minded. I think the chances are much better” for a ruling favoring broadcasters, Bryan Cave’s Jerome Boros said: “The D.C. Circuit right now is very conservative, broadly speaking, and unreasonably deferential to the Commission.” Peter Gutmann, a Womble Carlyle attorney who represents broadcasters, agreed: “By reputation, the D.C. Circuit seems to be more supportive of federal agencies than outlying ones.” But they and broadcast officials couldn’t cite pertinent recent media-friendly rulings by the N.Y. federal court.
NBC attacked the FCC indecency findings in a petition for leave to intervene filed in the N.Y. case. Broadcasters have criticized the FCC rulings as failing to define clearly what’s unacceptable, though Chmn. Martin has said the orders at issue will help set precedent (CD March 24 p5). “The Order represents a significant expansion of the Commission’s content regulation of broadcasters’ speech, characterizing as ‘indecent’ or ‘profane’ even the most brief and spontaneous utterances of expletives on network TV,” a filing by NBC Universal, its affiliates and NBC Telemundo said: “The Order impermissibly regulates free speech under the First Amendment, oversteps the Commission’s regulatory authority, and reflects an arbitrary and capricious exercise of agency action.” FCC Gen. Counsel Samuel Feder, listed as the opposing attorney in the NBC document, declined to comment.
The NBC filing reprised industry fears for creativity. NBC said it worries the Commission definition of indecency, expanded in the most recent FCC actions to include the word “shit,” will “chill the speech of broadcasters.” The FCC order could complicate programming and raise costs, NBC said: “Broadcasters will be compelled to implement elaborate delay mechanisms, which would fundamentally and dramatically alter the ability of the intervening petitioners to disseminate live news, sporting events, and other programming in real time.”
The broadcasters’ case won’t be a slam dunk, judging by comments from an FCC official and Parents TV Council (PTC), which has spurred viewer indecency complaints to the Commission. The orders are backed by precedent stemming from Supreme Court Pacifica ruling, said an FCC spokeswoman. “The networks challenge that precedent and argue they should be able to air some of those same [swear] words,” she said: “The Commission is reviewing their filings and will defend its order.” PTC Exec. Dir. Tim Winter agreed: “All the necessary weight of controlling legal authority is on the side of upholding the FCC’s ruling… The [2nd] Circuit has to abide by Supreme Court precedent.”
Broadcasters’ next step will be a brief statement to the court giving more details of their appeal, perhaps within weeks, said a source. The Commission might respond to that presentation to the court, which then likely would set a briefing schedule. A ruling could occur in about a year, said the source.