The FCC suffered another setback to its broadcast indecency policy earlier this week when the U.S. Court of Appeals for the 2nd Circuit threw out the FCC’s fine against the ABC Television Network and its affiliates for broadcast of an NYPD Blue episode.  Although the decision is not binding precedent, the willingness of the 2nd Circuit to throw out yet another FCC indecency fine on constitutional grounds raises the stakes when the U. S. Supreme Court hears this and related indecency cases in the future. 

The case involved a February 2003 broadcast by the ABC Television Network of an episode of NYPD Blue that depicted a woman’s nude buttocks for less than seven seconds.  In February 2008, the FCC determined that the depiction was indecent and fined ABC and each of its affiliates $27,500 per station for broadcasting the program.  ABC and its affiliates appealed the FCC’s decision to the 2nd Circuit.

In July 2010, in a separate case, the 2nd Circuit found the FCC’s “fleeting expletives” indecency policy unconstitutionally vague and therefore in violation of the First Amendment when applied to a Fox Television broadcast involving expletives uttered by Cher and Nicole Richie in the 2002 Billboards Music Awards Show.  Last November, the 2nd Circuit denied the FCC’s request for reconsideration of that decision.  

The Fox decision played a role in the NYPD Blue case as well.  In August 2010, ABC filed a motion for summary judgment requesting that the 2nd Circuit throw out the February 2008 forfeiture against ABC and its affiliates on grounds that the 2nd Circuit decision in the Fox case invalidates the forfeiture.  The 2nd Circuit agreed, holding that the Fox case struck down not only the FCC’s “fleeting expletive” policy but the FCC’s indecency policy in its entirety.  The court did not consider relevant that Fox broadcast a live unscripted show whereas ABC broadcast a scripted, recorded show.

The 2nd Circuit decision is not precedential (future parties may not rely on the decision); rather it is an order dismissing the petitioning broadcasters’ motion for summary judgment.  What is relevant is the 2d Circuit, the FCC and ABC agreed that the decision in the Fox case invalidated not only the FCC’s fleeting expletive policy, but the agency’s underlying indecency policy as well. 

It is unclear whether the FCC will appeal the nonbinding NYPD Blue decision.  Some expect the Supreme Court next term to hear argument on the Fox case, at which time the Supreme Court could consolidate the Fox case, today’s decision and the indecency case involving the "wardrobe malfunction" at the 2004 Super Bowl, pending before the 3rd Circuit.  The Supreme Court could rule narrowly on the issue on the constitutionality of the FCC’s fleeting expletives policy or more broadly with regard to the FCC’s entire indecency policy.