Supremes stall on fleeting indecency


The anticipated decision from the Supreme Court whether or not to hear the FCC’s appeal of a circuit court decision striking down its ability to enforce penalties for fleeting, non-repetitive incidents of broadcast indiscretion was a non-starter. The court did not turn down the case; nor did it agree to hear it. It simply remained silent on the matter.

According to the Los Angeles Times, the next opportunity for the justices to remove their thumbs from their pockets and point them either up or down on the case will be 3/17/08.

If they do decide to take the case, oral arguments likely wouldn’t occur until fall.

RBR/TVBR observation: Conventional wisdom has it that the only reason the FCC recently trotted out cases from 2003 involving borderline visual indecency, in which actionable nudity was strongly hinted at if not actually shown, was that the statute of limitations was about to run out.

The two cases are nothing if not textbook examples of arbitrariness. In one, all ABC affiliates airing an episode of "NYPD Blue" in the Central and Mountain time zones are being hit with 27.5K fine. In the other, only a select handful of Fox affiliates — the 13 that were specifically named in citizen complaints out of a total of 169 airing "Married by America" — are being fined, and only 7K apiece at that.

The difference we’re talking about here is not peanuts. ABC affils are being hit for 1.43M; Fox affils are being hit for 91K. If we were ABC, we would be arguing that this alone constitutes 1,339,000 reasons to throw the fine out on grounds of selective enforcement.