FCC VS FREE SPEECH

During the Bush administration, the FCC, when Powell was Chairman, adopted very severe penalties for "bad" words or private flesh that popped out on broadcast television. TV stations including, notably, FOX, as well as advocates of free speech objected.

The policy came before a 3 judge panel of the 2nd Circuit of the Court of Appeals (after going -- by the way -- to the Supreme Court on a more technical issue and then coming back for a new ruling).

Now it would seem from news accounts of legal issues that whether or not the FCC policy would be approved or struck down would depend simply on how many of the 3 judges assigned to this panel happened to believe that "bad words" and certain parts of the body on TV were an unacceptable outrage and how many thought it was not a big deal.

But the legal system works differently, and instead of simply checking one or the other of:

--- Outrage
--- No big deal

on their computers, the judges issued a long, legal ruling striking down the FCC policy. Here's what they said:

http://www.ca2.uscourts.gov/decisions/isysquery/e324584c-b565-4896-b8b3-610715bc0e54/1/doc/06-1760-ag_opn2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e324584c-b565-4896-b8b3-610715bc0e54/1/hilite/


It's not actually clear to me why the FCC under new management and with new members did not change its policy of severe punishment for "indecency" and render this case moot, unless

a) they still believe in the severe penalties
b) they did change the policy but the legal case proceeds anyway
c) they did not change the policy in order to get a final court ruling
d) none of the above.