• Broadcasting & Cable, Monday, October 1, 2007 10:16 AM

An attempted Federal Communications Commission crackdown on "fleeting" profanity looks like it will remain in limbo until sometime next year, or possibly even the next. The solicitor general--essentially Uncle Sam's lawyer--told the U.S. Supreme Court that it would team up with the FCC to challenge a lower court reversal of a finding against Fox for expletives on the Billboard Music Awards in 2002 and 2003. Ever since, the FCC's policy has been unclear, and any fines or findings are unlikely until the legal issues are settled.

According to some veteran First Amendment attorneys, the high court won't decide whether to take the case until December or January--if it does so at all. If it declines to hear the appeal, the FCC is required to defend its initial policy to the Second Circuit Court of Appeals--the same panel that found its decision "arbitrary" and "capricious."

Andrew Schwartzman, president of the Media Access Project, says he is puzzled by the government's decision to seek the review of a case that was decided so narrowly, and thinks the Supreme Court is unlikely to give them another go. "We will oppose the Supreme Court review because it only prolongs the uncertainty for our clients," says Schwartzman.

And John Crigler, an attorney with Garvey Schubert Barer who has argued indecency appeals for broadcast clients, agrees that the high court is unlikely to take the case, and notes the government is only seeking a rehearing for political cover: "They probably struggled with that issue, but I suspect that the commission persuaded them that they needed to do it," he says. "I think the commission wants to go back to Congress and say: 'What more could we do?' "

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