The FCC lost a round over indecency in the Supreme Court over the summer when the high court determined that the FCC changed its enforcement policy on the fly without adequate notice to broadcasters. It has now decided to drop a separate pending case.
The Supreme Court battle was over fleeting expletives on live programming and fleeting indecency on a scripted ABC program. The dropped case involves a short-lived Fox program called “Married by America” that included pixilated nudity.
According to reports, 169 Fox affiliates had each been hit with a $7K NAL, resulting in a total of almost $1.2M in total liability. However, Fox declined to pay (although some of the affiliates are said to have sent in a check) – and now the FCC will cease trying to collect and the Department of Justice will drop the case voluntarily.
The FCC loss over the summer was due to its abrupt change in enforcement policy. The court determined that broadcasters were not given adequate notice of the changes, and sent the FCC back to the drawing board to modify its rules in accordance with the court proceedings.
The Supremes affirmed that indecency regulation was within the FCC’s purview and completely ducked any First Amendment considerations.
In light of the Supreme Court ruling, the FCC is trying to focus its enforcement efforts only on cases that would survive under the conditions created by the new playing field created by the SCOTUS ruling back in June.
RBR-TVBR observation: The Court’s action was seen as a victory for broadcasters, but not a full-throated victory, especially in regard to the fact that broadcasters’ First Amendment rights were not commented on. In a special report for RBR-TVBR, Womble Carlyle Sandridge & Rice, PLLC Gregg Skall called it a punt.
Now we are describing the latest FCC action as a punt.
But in terms of the Supreme Court’s punt, you could almost say that the FCC has opted for a fair catch.