A split decision for FCC Upholds 2 indecency rulings, reverses 2 others

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The FCC upheld a pair of indecency decisions and reversed itself on two others in a ruling the commission announced just before a court-ordered deadline expired at midnight Monday.

The commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards, respectively, was indecent and profane but that similar language used in a 2004 episode of "The Daily Show With Jon Stewart" wasn't indecent because the program is a news show.

The commission reversed its findings that the use of versions of the word "shit" during CBS' "The Early Show" in 2004 and several episodes of ABC's "NYPD Blue" were not in violation. The commission said "Early Show" escaped sanction because it is a news program and "NYPD" because the complaint was improperly filed.

The FCC's action came as the court-ordered deadline for the commission's reconsideration of the panel's original 2006 action expired. In its Monday decision, the commission upheld its ruling that Cher's use of the word "fuck" in 2002 and Richie's use of the word "shit" in 2003 during the Billboard Music Awards, both of which aired on the Fox Network, were indecent.

FCC chairman Kevin Martin touted the decision as a step his agency took to stand up to an out-of-control entertainment industry.

"This order affirms that the use of the F- and S-words in the 2002 and the 2003 Billboard Music Awards was indeed indecent," he said in a statement released after midnight. "Hollywood continues to argue they should be able to say the F-word on television whenever they want. Today, the commission again disagrees."

Commission action, however, doesn't put an end to the case. The federal appeals court in New York still has to take action on the constitutionality of the FCC's decision.

Fox contends that the FCC action raises as many questions as it answers.

"Today's decision highlights our concern about the government's inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases," Fox spokesman Scott Grogin said. "We look forward to court review and the clarity we hope it will bring to this area of the law."

While the commission once again declared the Billboard shows indecent, it did not issue a fine because the program aired before the commission ruled that versions of the words are automatically actionable. That ruling came in response to U2 singer Bono's utterance of a version of the word "fuck" during the 2003 Golden Globes broadcast.

In the Bono decision, the commission changed its definition of "fleeting" use, deciding that a certain word can be so vile that it runs afoul of the nation's indecency laws.

While the commission chose to reaffirm an exemption for news in its decision on "The Daily Show," Martin warned the networks not to push the envelope.

"It is oftentimes difficult to distinguish between true news programming and infotainment," he said. "While I found the interview with a contestant on 'Survivor: Vanuatu' to be extremely close to that line, I believe the commission's exercise of caution with respect to news programming was appropriate in this instance."

The indecency complaint regarding "NYPD" was dropped because the person filing the complaint was not within the station's viewing area. Martin made a point of noting that the commission did not reach a decision on the merits of the programming.

"Finally, the commission dismissed complaints about episodes of 'NYPD Blue,' solely on procedural grounds, and they were not decided on the merits," he said.

While the FCC's decision was a unanimous one, commissioner Jonathan Adelstein said the panel's decision lacks consistency.

"The consequences of this new policy reveal its lack of logic," Adelstein wrote. "When the commission determines a national network broadcast violates our national community standards, we will only fine the local station that has a complaint filed against it by a viewer in its media market. Although our obligation is to enforce the law to protect all children, we will only fine a local station that has the misfortune of being in a market where a parent or an adult made the effort to complain."

That was an opinion echoed by free-speech advocates like TV Watch, a coalition that opposes government control of television programming.

"Monday night's decision reinforces the lack of consensus, transparency and clarity that have plagued government efforts to play parent," TV Watch executive director Jim Dyke said. "While the government pondered the accuracy of its own decision against four shows, America's parents have reviewed, blocked and watched thousands of programs the government may or may not approve of."
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