Broadcasters take on FCC indecency rules in Supreme Court showdown

The broadcast industry will try next week to persuade the Supreme Court to tell the government to back off when it comes to regulating content.

On Jan 10, the High Court will hear arguments from News Corp.'s Fox and Walt Disney Co.'s ABC that the Federal Communications Commission's rules regarding indecent programming and the way they are enforced by the agency are both vague and unconstitutional. The Fox and ABC cases have been working their way through the courts for years. In indecency cases, the FCC typically fines the TV stations that use the public airwaves to carry the networks' programming. However, many stations are owned by networks, which usually fight the fines on behalf of their affiliates. Arguing for ABC is Seth Waxman, a partner at WilmerHale and a former solicitor general during the Clinton administration. Fox's lawyer is Sidley & Austin's Carter Phillips. Both have argued before the Supreme Court dozens of times. Carrying the ball for the FCC will be Solicitor General Don Verrilli. Interestingly, Verrilli has argued cases for the TV industry before the Supreme Court when he was in private practice and has a strong background in telecommunications and media law. The networks ideally would like to see the indecency rules tossed. A more realistic scenario, according to one network executive watching the case, is that the FCC's methods of enforcing the rules will be called into question. If that happens, the likely result would be that the FCC would be asked to clarify its rules and be more transparent in how it enforces them.