It’s going to be a busy day tomorrow. The FCC is taking on contentious issues at its November Open Meeting, and the Supreme Court is set to hear arguments in the FCC v. Fox Television Stations. Oh, and we also hear that the government is holding an election that day.
As for FCC v. Fox, website SCOTUS WIKI says there are several possible outcomes. The Supremes may simply send the issue back to the FCC for a better rationalization of their position, since they did not undertake such an effort following their loss at the appellate level. Or it could say that the Second Circuit was correct, and the FCC has no standing to enforce sanctions against fleeting expletives. If it decides that the FCC does have authority, if could either send the case back to the Second Circuit to air broadcast arguments that their First Amendment rights are being violated, or decide to consider that aspect of the case on its own. It says the FCC has specifically attempted to keep the First Amendment out of the case entirely.
RBR/TVBR observation: At issue here also, unmentioned in the SCOTUS WIKI analysis, is the fact that the FCC just suddenly, of its own volition, took its fleeting expletive standard operating procedure and stood it on its head without warning. It also needs to bear in mind the damage that may be done to the long-standing tradition of live broadcast of events of public interest, a practice that rarely entails indecency of any kind but which could be curtailed due to the ever-present chance of an unprovoked verbal assault from somebody near a mic over whom the broadcaster has no control whatsoever, coupled with the extreme six-figire fines recently put on the books by Congress. SCOTUS should simply uphold the Second Circuit and send the FCC back home completely empty-handed.