FCC: Fox Decision Suggests Indecency Regime Is Unconstitutional

In a supplemental brief solicited by the Second Circuit Court of Appeals, the Federal Communications Commission conceded that the court's ruling that its indecency enforcement regime is unconstitutionally vague bears directly on its fine for nudity in a 2003 episode of NYPD Blue, but says that the same court should hold off on reaching any decision on ABC's appeal of that fine until the U.S. government decides whether or not to petition to appeal the Fox ruling.

The FCC said that NYPD Blue's scripted airing of images of adult nudity (actress Charlotte Ross's backside) was different from the "gratuitous utterances" during a live awards show. But it conceded that the court's decision went beyond the specifics of the cases to the larger issue of the FCC's indecency oversight authority. The FCC said it and Justice were contemplating filing a petition for a full-court rehearing of the Fox ruling, which was a three-judge panel decision rendered last month. The court won't have long to wait for that decision, since the deadline for petitioning that decision is August 27.