Bush Sides With FCC on 'Fleeting Expletives'
June 4, 2008 at 10:30 AM (PT)
The BUSH administration is siding with the FCC in fighting an appeals court ruling that struck down the COMMISSION's about-face ruling on so-called fleeting expletives, VARIETY reports. In a brief filed with The Supreme Court, U.S. Solicitor General PAUL D. CLEMENT argued that the 2nd Circuit Court of Appeals was wrong to rule that the FCC had failed to adequately justify its new policy. The brief urged the high court to remand the case back to the 2nd Circuit. CLEMENT even went so far as to argue that the Supreme Court shouldn't even consider the constitutional questions that the case implicitly raises.
The bone of contention was the FCC's MARCH 2006 omnibus order that reversed its previous ruling that refused to fine broadcasters for one-time expletives uttered in live settings. Two such "fleeting expletives" were uttered during separate live FOX broadcasts; similar incidents occurred during one ABC and one CBS broadcast. At the time, the FCC chose not to issue fines because it admitted to reversing policy.
The network appealed the ruling to the 2nd Circuit, asserting that the reversal was unjustified, arbitrary and capricious. Last JUNE, the 2nd Circuit ruled in FOX's favor, so the FCC took the issue to the Supreme Court, which agreed to hear the case in its fall session.
In the brief, Clement argued that the FCC reversal was reasoned enough to satisfy federal requirements on rule or policy changes. He also asserted that the FCC is a better judge of "connotations of language" regarding the meaning and intent of the fleeting profanities than the Appeals Court, and that the Court shouldn't even address the constitutional questions surrounding obscenity and profanity.
FOX sources told VARIETY that its attorney will probably ask the Court for an extension to file a legal response. No date for the Supreme Court hearing has been set.
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