July 15th, 2010

PK Icon

Link HArvest: 2nd Cir Indecency Opinion

http://www.ca2.uscourts.gov/decisions/isysquery/fe6d6a9a-4a2d-46ee-925f-7e58a9c91dee/2/doc/06-1760-ag_opn2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fe6d6a9a-4a2d-46ee-925f-7e58a9c91dee/2/hilite/

Been head down in other work so haven't had a chance to read it. Sounded like they went with finding the policy, rather than the statute, unconstitutional (what we would call an "as applied" challenge). That makes it less likely that the FCC will seek cert. Result would have been different if the court had found the underlying statute unconstitutional. But here, FCC can default back to its old policy. Appeal risks getting the statute declared unconstitutional, but greater risk is that Supreme Court would take opportunity to revisit the "scarcity doctrine" which permits regulation of broadcast industry structure (e.g., ownership limits on the number of television stations one can watch) and would extend further to raising constitutional issues with regard to the regulation of wireless generally.