By a vote of 8-0, the U.S. Supreme Court vacated fines and other penalties imposed by the FCC on the Fox and ABC television networks for utterances of “fleeting” expletives and the display of brief nudity during broadcasts in 2002 and 2003. The Court declined, however, to address the First Amendment implications of the FCC’s rules against broadcast indecency. Handed down yesterday, the high court’s ruling concerns fleeting utterances of profanity during live awards telecasts on the Fox network in 2002-2003 and a depiction of nudity, lasting approximately seven seconds, on an episode of “NYPD Blue” aired on ABC in 2003. In a departure from previous policy in which the FCC has declined to penalize unscripted and/or fleeting profanity or nudity, the FCC held both Fox and ABC liable for violations of the broadcast indecency rules. While the FCC imposed $1.24 million in fines upon ABC and its affiliates, Fox was not held liable for monetary forfeitures. Both decisions came to the Supreme Court from the Second Circuit Court of Appeals, which, in both instances, overturned the FCC on grounds that it was not entitled to alter its enforcement of the broadcast indecency rules “without providing a reasoned explanation.” In the case of Fox, the Supreme Court addressed the issue of fleeting profanity for the second time, as the high court in 2009 had remanded the case to the Second Circuit for consideration of First Amendment issues. (On reconsideration, the Second Circuit panel found that the FCC’s policies on broadcast indecency as applied to Fox were unconstitutionally vague.) Writing for seven of the eight justices, Justice Anthony Kennedy agreed with the appeal court’s contention that the FCC “failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.” However, in what may prove a hollow victory for broadcasters that had urged the Supreme Court to overturn the FCC’s indecency rules altogether on constitutional grounds, Kennedy proclaimed: “this opinion leaves the Commission free to modify its current indecency policy in the light of its determination of the public interest and applicable legal requirements . . . and it leaves the courts free to review the current policy or any modified policy in light of its content and application.” As a former member of the Second Circuit, Justice Sonya Sotomayor recused herself from the case, and Justice Ruth Bader Ginsberg did not join Kennedy’s opinion in spite of her support for the court’s decision. Characterizing the Supreme Court opinion as “narrowly limited to procedural issues,” FCC Chairman Julius Genachowski vowed that “the FCC will carry out Congress’s directive to protect young TV viewers.”