Third Circuit Denies Full-Court Review Of Fox Decision

A Federal court will not review its decision that the Federal Communications Commission's indecency enforcement regime is unconstitutional.

Buried on page five of the Second Circuit Court of Appeals decision vacating the FCC's indecency fine against ABC stations over NYPD Blue was the news that the court back in November had rejected the FCC's request for a full-court hearing of its finding that the FCC's indecency enforcement regime is unconstitutionally vague. That finding came in the Third Circuit's review of the FCC's indecency finding against Fox for swearing on awards shows. After the Supreme Court ruled that the Third Circuit was wrong to rule that the FCC's regime was arbitrary and capricious, the High Court remanded the decision back to the circuit. The court was free to go to the constitutionality of the decision, which it did in ruling it too vague to pass muster. It was that finding that led the court summarily to vacate the ABC fine as well for stemming from an impermissibly vague standard, citing the Fox decision as its reason for doing so.

But arguably the bigger news was that the court had already decided not to re-hear the Fox case, which means the FCC's next step is taking it to the Supreme Court. Nov. 22 also starts the 90-day countdown for the FCC and Justice to file that appeal