The FCC subsequently acknowledged the lower court's decision would prevent the commission from enforcing its indecency policy even in cases
of scripted rather than fleeting profanity or nudity.
That prediction came to fruition when the same court tossed the commission's record $1.4 million fine leveled against 52 ABC affiliates for airing a 2003 episode of "NYPD Blue" that contained a scene featuring actress Charlotte Ross nude.
Acting Solicitor General Neal Katyal included a DVD of the episode with the government's certiorari petition filed in April. The administration argues that in order to meet the court's concerns about vagueness, the FCC would have to return to a prescribed list of words or images banned from broadcast TV.
The most vocal support for the FCC's position has come from a watchdog group best known for leading campaigns against TV shows it claims feature excessive violence or nudity.
"The High Court will have the opportunity to reverse misguided Second Circuit Court of Appeals rulings that would open the floodgates for graphic nudity and some of the harshest profanity in the English language,” said Parents Television Council President Tim Winter.
“Decency has been a fixture of federal law since the dawn of broadcasting and despite the opinion of the TV networks and three judges in New York, it has not suddenly become an outdated relic."