Supreme Court Decision Alert - June 21, 2012

Originally published on June 21, 2012

Keywords: Telecommunications Act, FCC regulation of indecency, criminal sentencing, criminal fines

Today the Supreme Court issued two decisions, described below, of interest to the business community.

Telecommunications Act—Constitutionality of FCC Regulation of Indecency

FCC v. Fox Television Stations, Inc. , No. 10-1293 (previously discussed in the June 27, 2011 Docket Report).

Federal law makes it unlawful to "utter[] any obscene, indecent, or profane language by means of radio communication" (18 U.S.C. § 1464) and directs that "[t]he Federal Communications Commission shall promulgate regulations to prohibit the broadcasting of indecent programming" during specified hours of the day (Public Telecommunications Act § 16(a), Pub. L. No. 102-356, 106 Stat. 954 (1992)). The FCC has implemented those statutory provisions by adopting regulations that prohibit broadcast licensees from airing "any material which is obscene" or, "on any day between 6 a.m. and 10 p.m.[,] any material which is indecent." 47 C.F.R. § 73.3999. In enforcing these regulations, the FCC has declined "to construct a definitive list" of indecent words or content, and instead defines indecency by "reference to the specific context" of a particular broadcast. In re Infinity Broad. Corp., 3 F.C.C.R. 930, 930 ¶ 14 (1987). The Supreme Court held today in FCC v. Fox Television Stations, Inc., No. 10-1293, that this context-based indecency-enforcement regime is unconstitutionally vague.

The case involved two incidents of isolated profanity on the Fox network and one incident of brief nudity on the ABC network. After these incidents, but before the FCC issued Notices of Apparent Liability, the FCC issued an order in an unrelated case, declaring for the first time that fleeting expletives are actionable. It then concluded that the Fox and ABC networks violated this new standard. In subsequent litigation, the Second Circuit vacated the FCC's imposition of liability, finding that the decision to modify its indecency enforcement regime to regulate fleeting expletives was arbitrary and capricious. The Supreme Court reversed and remanded for the Second Circuit to address the broadcasters' constitutional challenges. On remand, the Second Circuit found the FCC's fleeting-incidents standard unconstitutionally vague and invalidated it in on its face.

In an opinion by Justice Kennedy that was joined by all other members of the Court except Justice...