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2nd Circuit halts enforcement of tougher FCC indecency rules

By The Associated Press
09.08.06

NEW YORK — A federal appeals court yesterday tossed a hurdle in the way of the Federal Communications Commission’s effort to make even isolated profanity subject to hefty fines — a case that arose from episodes of “NYPD Blue” and other programs.

The 2nd U.S. Circuit Court of Appeals in Manhattan temporarily halted aspects of enforcement of guidelines issued in 2004 after a Golden Globes broadcast early that year in which profanity was uttered by Bono of the rock band U2.

The court also granted a request by the FCC for an additional two months to review the FCC’s determination that “NYPD Blue” and the three other television programs violated rules governing the broadcast of indecent and profane material.

The two-page court order left the FCC and broadcasters trying to determine exactly what effect the appeals action has on FCC rulings.

The court “has recognized the serious First Amendment issues that are raised in this appeal and the chilling effect of the FCC’s indecency enforcement scheme,” said Andrew Butcher, a spokesman for News Corp. and the Fox Network.

The appeals court also noted that the FCC had agreed to a stay for 60 days, although FCC lawyers had indicated they believed it meant only that the rulings on the four programs could not be used to apply penalties to the same offenders after future violations.

The FCC has said those rulings, which carried no fines, were meant to give broadcasters a sense of what will violate new rules.

The appeals challenged the FCC’s finding that profane language was used during the CBS program “The Early Show” in 2004, incidents involving Cher and Nicole Richie on the “Billboard Music Awards” shows broadcast by Fox in 2002 and 2003, and various episodes of the ABC show “NYPD Blue” airing in 2003.

Broadcasters took yesterday’s action as a positive step toward reducing threats to the First Amendment posed by an FCC crackdown that began in earnest after Janet Jackson’s breast was exposed during a Super Bowl halftime show.

FCC spokeswoman Tamara Lipper was pleased with the ruling, saying it ensures the commission will have the chance to hear all of the broadcasters’ arguments.

The FCC told the court last week it wanted the additional time to hear the broadcasters explain why they were upset by the decency findings.

ABC Television Network, NBC Universal Inc., CBS Broadcasting Inc., Fox and their network affiliate associations challenged a March 15 FCC order resolving indecency complaints based on television programs that aired between February 2002 and 2004. ABC is owned by Walt Disney Co., NBC by General Electric Co., CBS by CBS Corp. and Fox by News Corp.

In a statement, CBS said it was “gratified that the court has taken the first step in recognizing the serious First Amendment issues raised by the FCC’s new enforcement policies.”

Martin Franks, executive vice president of CBS Corp., said last week that the network could see “overwhelming evidence of the chill facing broadcasters” because of the FCC in the hesitancy of some CBS affiliates to air a Sept. 11 documentary at its scheduled time on Sept. 10 because it contains some profanities.

The broadcasters said the enforcement of federal indecency rules has been applied inconsistently since the FCC decided in 2004 that virtually any use of certain expletives would be considered profane and indecent. Millions of dollars in fines have been levied based on those rules. Recently, Congress boosted the maximum fines the FCC can impose for indecency from $32,500 to $325,000.


Update
FCC drops 2, keeps 2 obscenity charges against TV shows
Fox spokesman says decision 'highlights our concern about the government's inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases.' 11.07.06

Previous
FCC wants to reconsider indecency ruling
Attorney asks 2nd Circuit to delay hearing broadcasters' lawsuit so that agency can review its finding that 'NYPD Blue,' three other TV shows violated indecency rules. 08.30.06

Related

PBS chief calls indecency rules unclear, 'paralyzing'

Paula Kerger says FCC regulations, fines put public TV stations at risk, threaten to deprive viewers of important programs. 07.29.06

CBS asks 3rd Circuit to overturn Super Bowl fine
Network argues $550,000 penalty for Janet Jackson's 2004 breast-baring performance is 'unconstitutional, contrary to the Communications Act and FCC rules and generally arbitrary, capricious and contrary to law.' 07.31.06

Some stations hesitate to air 9/11 documentary
CBS affiliates wary of possible fines over firefighters' foul language as decency group vows to flood FCC with complaints. 09.05.06

2nd Circuit takes up broadcast-indecency case
Broadcasters are to argue today that the FCC has instituted new, inconsistent and unconstitutional rules on use of profanity. 12.20.06

Appeals judges grill FCC lawyer over profanity rules
Government attorney surprised some when he said news programs could broadcast yesterday's profanity-laced hearing without penalty. 12.21.06

Court tosses FCC 'wardrobe malfunction' fine
3rd Circuit panel rules that agency 'acted arbitrarily and capriciously' in punishing fleeting nudity during 2004 Super Bowl halftime show. 07.21.08

Censorship in the name of decency?
By Gene Policinski As some CBS affiliates hesitate to air a 9/11 documentary because of firefighters' foul language, we must ask should we block free and open discussion because the reality of that day's events may offend some? 09.05.06

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