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2nd Circuit: FCC's policy on accidental expletives is arbitrary

By The Associated Press
06.05.07

NEW YORK — A federal appeals court yesterday found that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was "arbitrary and capricious" and might not survive First Amendment scrutiny.

The 2nd U.S. Circuit Court of Appeals did not, however, outlaw the policy outright. In a 2-1 ruling, it found in favor of a Fox Television-led challenge to the policy and returned the case to the FCC to let the agency try to provide a "reasoned analysis" for its new approach to indecency and profanity. It added it was doubtful the FCC could do so.

FCC Chairman Kevin Martin told the Associated Press that the ruling would make it difficult to impose fines for indecency.

"Practically, this makes it difficult to go forward on a lot of the cases that are in front of us," he said.

An appeal was being considered, he said.

The broadcasters had asked the appeals court last year to invalidate the FCC's conclusion that profanity-laced broadcasts on four shows were indecent, even though no fines were issued.

The new policy was put in place after a January 2003 broadcast of the Golden Globes awards show by NBC when U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said the "F-word" in any context "inherently has a sexual connotation" and can trigger enforcement.

Yesterday's ruling favored Fox's challenge to the FCC's finding of indecency in regards to a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase "F--- 'em" and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

The FCC late last year had dropped its indecency claims against two other television broadcasts.

The appeals court said in Fox Television Stations, Inc. v. FCC that some of the FCC's explanations for a 180-degree change in its policy were "divorced from reality." It countered the FCC argument that broadcasters might now air expletives all day, saying broadcasters had never done so in the 30 years before the policy was changed.

In a statement, Martin said: "It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f---' does not invoke a sexual connotation."

FCC Commissioner Michael J. Copps said the court's decision was "disappointing to me and to millions of parents and concerned citizens across the land" but "doesn't change the FCC's legal obligation to enforce the indecency statute."

"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake," Copps said in an e-mailed statement. "The FCC has a duty to find a way to breathe life into the laws that protect our kids."

In a statement, Fox Broadcasting said: "We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

NBC Universal said in a statement that the ruling relied on a "strong dose of common sense" and vindicated its view that the FCC's recent indecency rulings were arbitrary and inconsistent.

The appeals court said it found that the FCC's new policy regarding so-called fleeting expletives "represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry."

The appeals court said agencies are free to revise their rules and policies, but it said they must provide a reasoned analysis, which the FCC had failed to do.

In a majority opinion written by Judge Rosemary Pooler, the appeals court said all speech covered by the FCC's indecency policy is fully protected by the First Amendment.

"With that backdrop in mind, we question whether the FCC's indecency test can survive First Amendment scrutiny," she said. "For instance, we are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague."

The court said it could understand why the networks argue that the FCC's indecency policy "fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech and requires broadcasters to 'steer far wider of the unlawful zone.'"

"In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials," the court said.

The appeals court gave a nod to what it called "today's realities" when it mentioned the ability of parents to use technology to limit what their children see.

"The proliferation of satellite and cable television channels — not to mention Internet-based video outlets — has begun to erode the 'uniqueness' of broadcast media," the appeals court wrote.

In a dissent, Judge Pierre Leval said the FCC had given a "sensible, although not necessarily compelling, reason" for its new policy.

Although Fox was the plaintiff in the appeal, representatives of other networks were interested parties and submitted written arguments to the court.


Update
Government seeks high court review of broadcast-indecency ruling
2nd Circuit said it was 'skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.' 09.27.07

Previous
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

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

Government study suggests FCC can limit TV violence
Draft report says Congress could craft law that would let agency regulate violent programming as it does sexual content, profanity — all without violating First Amendment. 02.16.07

Senate panel moves to restore FCC indecency policy
In bid to counteract 2nd Circuit ruling, committee approves bill that would allow agency to fine television, radio broadcasters for airing profanities, even if they are fleeting references. 07.20.07

3rd Circuit to study 'wardrobe malfunction'
Panel to decide whether 2004 Super Bowl halftime incident was indecent or fleeting, accidental glitch that shouldn't be punished. 09.11.07

CBS attorney: Network was careful with Super Bowl halftime show
FCC lawyer tells 3rd Circuit that CBS was indifferent to risk that 'a highly sexualized performance' might cross the line. 09.11.07

Supreme Court takes broadcast-indecency case
First such case in 30 years concerns FCC policy allowing fines against broadcasters for 'fleeting expletives' on their programs. 03.17.08

FCC's Tate: need to balance freedom, protection of kids
By Courtney Holliday Current, former commissioners advocate measured approach to broadcast regulation. 06.27.08

Justices to examine 'fleeting' expletives
By Tony Mauro Court agrees to review latest version of 30-year-old FCC rules against backdrop of vastly different media landscape. 03.18.08

FCC v. Fox draws intense interest
By Tony Mauro Administrative-law case expected to veer quickly into free-speech realm; see excerpts of briefs. 11.03.08

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

FCC chairman pans common-sense ruling on ‘fleeting expletives’
By Gene Policinski In case involving Cher, Nicole Richie, 2nd Circuit decision won't unleash torrent of televised indecency that agency says it fears. 06.17.07

Freud, the FCC & the doctrine of respondeat superior
By Ronald K.L. Collins CBS argues before 3rd Circuit that Janet Jackson's breast-baring at 2004 Super Bowl was not only unintentional, but FCC was also way out of bounds in imposing a $550,000 fine. 09.21.07

The FCC's Regulation of Indecency

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