FCC takes hit on indecency

Appeals court shoots down rule as 'arbitrary'

The federal appeals court in New York on Monday tossed out a key FCC indecency ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to.

"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.

Although a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.

But even the court's remand came with a catch as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.

"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote. "Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go not further than this opinion."

FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong and not the commission.

"I find it hard to believe that the New York court would tell American families that 'shit' and 'fuck' are fine to say on broadcast television during the hours when children are most likely to be in the audience," he said in a statement. "The court even says the commission is 'divorced from reality.' It is the New York court, not the commission, that is divorced from reality in concluding that the word 'fuck' does not invoke a sexual connotation."

In its original decision, the commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards aired by the Fox Broadcasting Co. were indecent and profane.

Opponents of the commission's attempts to regulate speech called the decision a victory.

"Score one for the First Amendment," Media Access Project president and CEO Andrew Jay Schwartzman said. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."

MAP attorneys represented the Center for Creative Voices in Media as intervenor in the case. CCV's members include many in the creative community, and its brief to the court stressed the effect of the FCC's action on writers, directors and other artists.

The decision did not go unnoticed in Hollywood as AFTRA, DGA, SAG, WGA East and WGA West issued a joint statement applauding the decision.

"Actors, directors, writers and broadcast personnel are pleased that the 2nd Circuit Court of Appeals today rejected the FCC's effort to expand their authority and influence over creative content," the guilds said. "The fines imposed have had a chilling effect on free expression over the airwaves. If allowed to stand, these fines would have subjected all programming to arbitrary claims of indecency without regard to context or type of programming.

"We are united in our opposition to this or any other FCC decision to overturn long-standing policy in this area and replace it with arbitrary decision-making standards that tread on free speech."

The guilds joined a coalition of arts, filmmakers and free expression organizations in filing a friend-of-the-court amicus brief urging the court to overturn the FCC ruling.

Fox said the ruling recognizes Americans' ability to make their own decisions about what programming they want to see.

"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," the network said. "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."

Commerce Committee chairman Sen. Daniel Inouye, D-Hawaii, urged the FCC to appeal.

"It is disappointing that a divided 2nd Circuit panel chose to invalidate the FCC's efforts to combat the gratuitous use of offensive language on broadcast television," he said. "I hope and expect that the commission will move swiftly in appealing this case to the Supreme Court."

During the 2002 show, Cher told the Billboard awards audience, "People have been telling me I'm on the way out every year? So fuck 'em." In 2003, Richie said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Although the commission found that the shows violated the broadcast indecency rules, it didn't issue a fine because the shows predated a policy established in 2004 after U2 frontman Bono said during an NBC broadcast that winning a Golden Globe was "really, really fucking brilliant."

In the Bono decision, the FCC 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. The court's decision Monday appears to undo the Bono decision, which has been sitting at the commission on review for some time.

"The (commission's order) makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient," Pooler wrote. "For instance, the commission states that even nonliteral uses of expletives fall within its indecency definition because it is 'difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.' This defies any common-sense understanding of these words, which as the public well knows are often used in everyday conversation without a 'sexual or excretory' meaning. Bono's exclamation that his victory at the Golden Globes Award was 'really, really, fucking brilliant' is a prime example of a nonliteral use of the 'F-word' with no sexual connotation."

NBC Universal called the decision a dose of "common sense" for the commission, which has dithered over a final ruling in the Bono case for years.

"The court's ruling discredits the FCC's 2004 Golden Globes decision — which has been subject to unresolved appeals pending at the agency for more than three years — for its abrupt departure from long-standing policy regarding fleeting expletives in live programming," the network said. "The FCC's Golden Globes flip-flop, which the court said lacked a reasoned analysis clearly explaining the change in policy, threatened the future of live programming and broadcasters' ability to report on current events."

The court went further than simply discrediting the Bono decision, saying that the time might be right for the unique treatment of the broadcast medium to end given the media landscape that has arisen with the advent of cable and satellite TV and the Internet. The decision could be one of the first to take a chunk out of the scarcity doctrine expressed in the U.S. Supreme Court's Red Lion case or the underlying Pacifica case that defined the commission's ability to regulate indecent speech.

"This is a huge shift away from Red Lion and Pacifica," one network executive said.

The 1978 Pacifica decision came after a complaint was raised against a Pacifica station in New York for playing comedian George Carlin's bit "Filthy Words." While it established First Amendment protection for indecent speech, it also said the commission could regulate it to protect children from the language.

The 1969 decision in Red Lion Broadcasting Co. v. Federal Communications Commission said broadcasters get First Amendment protection, but it granted the government the power to regulate broadcasters to preserve openness in covering the news because they operate with a government license on scarce radio spectrum.

While the New York court said Monday that it can't undo Supreme Court decisions, it said the judges would be foolish if they failed to note the advent of cable and satellite TV and the Internet.

"We would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the contest of regulating broadcast television," Pooler wrote.

She added that Americans can take steps to block content they don't wish to see, writing "blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."

Another Supreme Court decision that allowed the Playboy Channel to remain because cable is a subscription service that allows channels to be blocked also comes into play, Pooler wrote.

The court's language on the V-chip and the nature of cable and satellite TV could effect more than just indecent speech on TV and radio. Recently, the FCC asked Congress for the authority to regulate violent speech in much the same way it regulates broadcast indecency on all platforms. Monday's ruling could make it more difficult for Martin to push those plans.

"This is a timely opinion as public policy makers weigh the merits of further program content restrictions," National Association of Broadcasters spokesman Dennis Wharton said. "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content."

The decision Monday is one of two free-speech cases the court is expected to decide soon. The decision on Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show also is due out of the Philadelphia circuit court of appeals.

Under federal court rulings and commission rules, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." Indecent speech can be aired safely between 10 p.m.-6 a.m. Broadcasters today can face a fine of as much as $325,000 per violation.