The court asked for supplemental briefs last month to determine the effect of the Fox ruling on ABC's lawsuit. In Monday's brief, the FCC admitted July's ruling may prevent the Commission from enforcing its indecency policy even in cases that involve scripted rather than accidental nudity or profanity.
"Because the contextual framework the Commission applied in Fox is the same one it applied in this case, the Fox decision appears to suggest that the Commission’s indecency policy is
unconstitutionally vague even as applied to the very different facts of this case," the FCC's legal counsel wrote.
The FCC said federal agencies are still debating whether to appeal the Fox decision, noting that a petition to appeal must be filed by Friday. Both sides have indicated in the past they expect the case to reach the Supreme Court. The FCC argues the effect of the Fox appeal would have obvious implications for the "NYPD Blue" fine, making it appropriate to wait until that case is resolved before moving forward with its action against ABC.
"If rehearing is denied, the Court would then be positioned to dispose of this case in light of the recent decision in Fox," the FCC wrote.
The Parents Television Council, which strongly opposed the court's decision to strike down federal indecency laws, urged FCC Chairman Julius Genachowski to appeal the Fox ruling and to "do his duty to preserve the indecency statute in the ‘NYPD Blue’ case."