Appeals Court Poised to Speed Fox v FCC Hearing Schedule
The FCC and broadcasters agreed to an accelerated hearing schedule in an indecency case that the 2nd U.S. Appeals Court, N.Y.C., signaled Tues. in preliminary oral arguments it could hear on an expedited basis. A fast ruling in Fox v FCC would be a partial win for broadcasters complaining of increased FCC heavy-handedness toward racy programming.
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The FCC wants the case delayed 60 days to solicit broadcaster response and reissue an order, agency lawyer Eric Miller said Tues. in oral argument. That “would cause little delay,” he said. ABC and Fox disagree; the original indecency orders, which didn’t involve fines and include NYPD Blue (CD March 17 p1), have a chilling effect on speech, they said. The consequences are “very significant,” Seth Waxman said on behalf of client ABC. “That’s clear… irreparable injury,” said Carter Phillips for Fox.
The court could grant the FCC its extension and speed the suit at the same time, said lawyers who attended the hearing. Judge Jose Cabranes said the court likely will issue an order late Tues. Judge Rosemary Pooler seemed skeptical of the FCC motion for voluntary remand of the indecency actions. “You're asking this court for extraordinary relief,” she told Miller. Noting the Commission’s initial failure to seek broadcaster input, she added: “Did you forget about due process?” Miller replied: “We don’t think the process is legally deficient.”
Fox wants the case deemed an expedited appeal, Phillips told the court. In another potential broadcaster win, Judge Ralph Winter said Fox arguments could be heard sooner than in a separate indecency appeal. Networks and allies want to keep the FCC from leapfrogging the Fox case by getting a hearing first on CBS v FCC in the 3rd U.S. Appeals Court, Philadelphia. The FCC wouldn’t object to speeding action in N.Y. if it gets the 2-month extension, an agency official said.
There’s no expedited schedule in the CBS case involving a $550,000 fine for Janet Jackson’s 2004 Super Bowl breast- baring, said Miller. The FCC tried and failed to get one, a lawyer involved in that case told us. At issue in the Fox case is whether the Commission would hold off enforcing only the 4 indecency orders during the stay or accede to demands by broadcasters that it not levy fines for “fleeting expletives.” Carter asked the court to stay any enforcement of the broader policy “until further order of this court.” Miller balked at that. “We believe a [stay of enforcement] is inappropriate,” he said.
ABC doesn’t plan to make a case of the FCC’s failure to get input before issuing the order, mooting its argument for a court remand, Waxman said in response to a query by Cabranes. “It is not at all clear to ABC what a remand will accomplish,” said Waxman.
The 2 sides may not be that far apart, since the FCC would entertain the possibility of a stay of enforcement, Cabranes said: “I think we have a deal.”