Court Ruling Propels TV Indecency Debate

COURT RULING PROPELS TV INDECENCY DEBATE
[SOURCE: Associated Press, AUTHOR: John Dunbar]
On Monday, the 2nd U.S. Circuit Court of Appeals in New York rejected by a 2-1 vote the Federal Communications Commission's policy on how it polices indecent speech on the airwaves. The court noted the FCC's about-face, blaming it for "failing to articulate a reasoned basis for its change in policy." The judges' decision was based on that change in policy, not on constitutional grounds. Despite that, the two judges went on to write that they were "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster." The argument, known in legal jargon as "dictum," is not relevant to the actual ruling, and that may make it more difficult for the government to take the case directly to the Supreme Court, said Andrew Schwartzman, president and CEO of the Media Access Project, one of the participants in the case on the broadcasters' side. As the government ponders its legal options, the FCC is stuck, unwilling to act on an unending stream of complaints it receives from the viewing and listening public until the legal issues are resolved. In fact, the FCC hasn't proposed a new fine for indecency since March of 2006. Among those options: a direct appeal to the U.S. Supreme Court, an action urged by the chairman of the Senate committee that oversees the FCC. The final decision on whether to appeal will be made by the U.S. Solicitor General, who represents the government in Supreme Court cases. Department of Justice civil division spokesman Charles Miller said the case is under review and no determination has been made. The Solicitor General has 90 days from the date of the decision to file. Another option would be to ask the 2nd District for a rehearing before the full panel of appeals judges. The FCC has 45 days to decide whether to pursue that option. The agency could also try again with the three-judge panel or simply do nothing. Neither of these options is considered likely.
http://www.forbes.com/feeds/ap/2007/06/06/ap3796000.html

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