Monday, August 30, 2010

UPDATE: FCC Petitions 2nd Cir. for Review of Indecency Standards Ruling

swearing in cartoonImage via WikipediaThe Federal Communications Commission has petitioned for a rehearing en banc by the U.S. Circuit Court of Appeals for the Second Circuit regarding the appellate court's July decision that the FCC indecency policy was unconstitutionally vague and violative of the First Amendment (See "TUOL" post 7/13/10).

The case, Fox Television v. FCC (Case Nos. 06-1760, 06-2750, & 06-5358) overturned the "fleeting expletives" FCC rule that subjected broadcasters to penalties for non-bleeped on-air expletives. Fox, CBS Broadcasting and others said the rule chilled 1st Amendment speech. U-2's Bono, Cher, and Nicole Ritchie at various times dropped F-bombs that were broadcast and resulted in fines.

A three-judge Second Circuit panel in July ruled the indecency policy under the Administrative Procedure Act [5 U.S.C. sec. 706(2)(A)] was arbitrary and capricious.  The FCC said in its petition that the ruling impedes the agency from enforcing federal statutory restrictions regarding indecent material and is seeking a rehearing of the case or that the full Second Circuit address the matter.

The FCC indecency restrictions cover the broadcast period from 6 a.m. to 10 p.m. when children are most likely to be among viewers.

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