FCC gets quite an earful

Appellate judges grill counsel on indecency stance

The FCC approves new rules on video franchises. Story on page 3.

NEW YORK ? In a hearing characterized by frequent blue language, a three-judge panel from New York's 2nd Circuit Court of Appeals sharply questioned the FCC on Wednesday about its stringent new policy of fining networks for accidental indecent speech uttered during live broadcasts.

Fox Broadcasting lawyer Carter Phillips, who also represented the positions of CBS and NBC at the hearing, said the new policy turns its back on "30 years of unbroken precedent." He called the policy "arbitrary" and said it was a "180-degree reversal" from the previous ruling.

At the heart of this issue are two slips of the tongue uttered at past Fox-broadcasted Billboard Music Awards. During the 2002 program, Cher declared: "People have been telling me I'm on the way out every year. So fuck 'em." At the 2003 show, Nicole Richie said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Phillips repeated both statements verbatim at the beginning of Wednesday's hearing, which was telecast live on C-SPAN, prompting Judge Peter Hall to ask the commission's deputy general counsel, Eric Miller, whether the broadcast would be subject to "hand-slapping" by the FCC.

Miller responded "absolutely not" because of the context of the language and the fact that the broadcast of the hearing constituted "news."

This led Judge Rosemary Pooler to query, "What wouldn't be news?" She said a claim could be made that an awards show or even "The Simple Life," the reality show at the heart of Richie's reference, could be classified as "news."

Judge Pierre Leval agreed that Miller's position seemed to be an "unreasonable hypothesis." Pooler said it stands to reason that a child might not be able to differentiate between a judge saying a curse word in a courtroom ? alluding to the fact that Leval said "fuck" during the day's proceedings ? and Cher using an expletive on an awards show.

After the hearing, Phillips said he was not aware of the FCC's position on expletives relating to "news." "We didn't know they'd give us a pass if we said it was 'news,' " he said. "That's news to us."

Although the FCC found that the Billboard broadcasts violated indecency rules, it didn't impose a fine because the shows predated a policy established in 2004 after U2 frontman Bono said "this is really, really fucking brilliant" during NBC's broadcast of the 2003 Golden Globe awards ceremony.

As a basis for the stricter fines, Miller also said Wednesday that many children watch broadcast television alone in their bedrooms, saying that they can't protect themselves against the "first blow" of indecent language on live TV.

Responded Pooler, "I find it disingenuous to point to unregulated TVs in a child's room as a reason for the FCC to come galloping to the rescue."

Miller added that the new policy would hold broadcasters to a "community standard" of what is and isn't offensive ? the basic argument being that if the words are used for "shock value," they are deemed indecent and subject to fine. Pooler said that sounded like a "scheme" based on what the FCC would find offensive, and that broadcasters and courts would have a hard time understanding those boundaries.

In his closing statement, Phillips said, "I have no clue what is offensive." Earlier, he pointed to network broadcasts of "Saving Private Ryan," which contains harsh language but was allowed by the FCC, as a point of ambiguity in the ruling.

All sides repeatedly made mention of the Pacifica ruling, the commission's initial indecency ruling in 1975, when it issued a order granting the complaint and holding that a Pacifica radio station WBAI-FM in New York that broadcast George Carlin's "Filthy Words" routine "could have been the subject of administrative sanctions."

Pooler asked why there had been no hearings on the issue until Bono's slip-up in 2004. Miller said the FCC had "no record" of fleeting expletives in the nearly 30 years between rulings.

Phillips and Pooler said that the commission's new ruling has no studies attached to it proving that children are adversely affected when they hear accidental curse words. Pooler questioned why the FCC wasn't taking as strict an approach to violence on television, which she said has been proven to adversely affect children.

A ruling on the indecency policy is forthcoming. Phillips, though, said he would be "shocked" if a decision is made before February.