404 F. App'x 530
2d Cir.2011Background
- ABC and ABC Affiliates were penalized for airing NYPD Blue episode showing an adult woman's nude buttocks.
- FCC issued a notice of apparent liability proposing forfeitures of up to $27,500 per station for 44 stations.
- FCC issued the Forfeiture Order imposing the penalties against the 44 ABC-affiliated stations.
- ABC petitioned for review challenging the FCC’s indecency policy and its application to this episode.
- The court held that Fox Television Stations v. FCC invalidated the FCC’s indecency policy as unconstitutionally vague, binding this panel.
- The petition for review was granted and the FCC forfeiture order was vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the FCC indecency policy unconstitutionally vague? | ABC contends policy is vague and chill leads to First Amendment harm. | FCC argues policy can be applied contextually and distinguishes from Fox; not necessarily voided by Fox. | Policy is unconstitutionally vague; vacate the forfeiture. |
| Should the court address additional admin/constitutional challenges after Fox? | ABC seeks review of broader challenges to the policy and penalties. | FCC/U.S. argues issues may be avoided given Fox’s ruling. | We need not address other challenges; Fox controls and requires vacatur. |
Key Cases Cited
- Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010) (indecency policy invalid as unconstitutionally vague)
- Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (U.S. 1989) (indecency protections under First Amendment)
- Grayned v. City of Rockford, 408 U.S. 104 (U.S. 1972) (vagueness standard for criminal penalties)
- National Endowment for the Arts v. Finley, 524 U.S. 569 (U.S. 1998) (government speech restrictions and vagueness concerns)