As you know by now, last week the U.S. Supreme Court found the FCC’s enforcement of its indecency policy unconstitutional in FCC v. Fox. As Bob Corn-Revere and Ronnie London described in our Advisory , this case concerned the 2002 and 2003 Billboard Music Awards shows televised by Fox as well as a 2003 episode of NYPD Blue televised by ABC. While the Supreme Court did NOT address the First Amendment issue of whether the FCC can constitutionally prohibit fleeting expletives and momentary nudity, it did find that the FCC’s enforcement of those policies with regard to these particular shows violated due process, because the networks had no advance notice of them.
As we noted more than a year ago, there are approximately 300 TV station renewal applications from the last renewal cycle still pending due to indecency complaints filed against them. It is unclear how many of them relate to these particular shows, but to the extent any renewal applications have been held up due to complaints against these shows only, it should only be a matter of time before those renewal applications are granted.
Unfortunately, there are still many renewal applications pending due to indecency complaints regarding other shows and networks. For example, the 2004 CBS Janet Jackson Super Bowl “wardrobe malfunction” case remains on appeal to the U.S. Supreme Court. (DWT represents CBS in that case.) That case concerns “fleeting images,” similar to the “momentary nudity” at issue in the NYPD Blue show. Accordingly, there is a fair chance that the Supreme Court may decline to review that case, which the Third Circuit Court of Appeals had overturned on similar grounds—lack of advance notice.
Although the Supreme Court remanded the Fox and ABC cases back to the Second Circuit Court of Appeals “for further proceedings consistent with the principles set forth in this opinion,” it is difficult to see how the Second Circuit could do anything other than reverse the FCC decisions in these cases. Of course, the FCC may well wait for finality before acting on the renewal applications held up by these shows, but it is fair to say that it is just a matter of time now….possibly even before the FCC acts on the current round of renewal applications!