Last June, the 2nd District Court of Appeals in New York nullified the agency's enforcement regime regarding so-called "fleeting expletives" by a 2-1 vote, saying the FCC had changed its policy and failed to adequately explain why it had done so.
The case involved two airings of the "Billboard Music Awards" in which celebrities' expletives were broadcast over the airwaves.
Following a challenge by Fox Broadcasting Co. and others, the court nullified the policy until the agency could return with a better explanation for the change. In the same opinion, the court also said the agency's position was probably unconstitutional.
"The court has thus sent the commission back to run a Sisyphean errand while effectively invalidating much of the Commission's authority" to enforce indecency rules, reads the appeal, filed with the Supreme Court on Thursday.
Sisyphus, in Greek mythology, was eternally cursed by the Gods to roll a giant rock up a steep hill, never able to quite reach the top before it rolled back down again.
The court rejected the FCC's policy on procedural grounds, but was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."
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