Networks challenge indecency regulations in appeals

The Federal Communication Commmission’s battle over fines for controversial moments during awards shows and the Superbowl continues, as briefs were filed this week in two separate cases about what constitutes a "fleeting expletive" — unscripted spontaneous profanity in a live broadcast — under the agency’s indecency regulations.

In the first case, CBS v. FCC, the FCC argued before the U.S. Court of Appeals in Philadelphia (3rd Cir.) that its imposition of a $550,000 fine on CBS for the 2004 Super Bowl halftime show that ended with Justin Timberlake ripping off part of Janet Jackson’s costume and revealing her breast was a proper application of its indecency standard. The Third Circuit overturned the FCC’s order, but then the U.S. Supreme Court vacated that decision and remanded the case, sending it back to the Third Circuit, where the FCC filed its brief. The FCC noted that an image cannot be a fleeting "expletive," and thus its rulemaking about expletives cannot be challenged in the case.

In the second case, television’s Big Three — ABC, CBS and NBC —  filed a brief in the U.S. Court of Appeals in New York (2nd Cir.) this week in Fox v. FCC, a case that challenges the constitutionality of the FCC’s unwillingness to grant a fleeting expletives exception and addresses what the companies see as outdated case law that unfairly targets broadcasters in a flooded media marketplace.

The suit began when the FCC found indecency in two Fox broadcasts — Nicole Richie’s use of two expletives on a 2003 awards show and Cher’s use of the word "fuck" during the same show the year before. The Second Circuit overturned the two indecency findings and the case went to the U.S. Supreme Court, which upheld the FCC’s rulings and sent the case back to the Second Circuit to consider the constitutionality of the FCC’s indecency regulations.

CBS Broadcasting, ABC and local affiiliates joined Fox Television in the suit and NBC Universal and NBC Telemundo also decided to intervene in the case because its outcome would affect their broadcast rights.

In this week’s brief, the networks argued the FCC’s “policy that fleeting, inadvertent, or unintentional expletives are ‘not actionable’ was essential” to the Supreme Court’s landmark 1977 indecency case FCC v. Pacifica Foundation. The companies argued that comments by Richie and Cher fell within that exception.

The brief also argues that the increase in multichannel cable programming, satellite television, parental control software and Internet sites like YouTube.com and Hulu.com have transformed the media landscape since Pacifica, which was a narrow decision in an early-cable, pre-Internet era where the Supreme Court found broadcasting had “a uniquely pervasive presence.”

“Given these developments, broadcast indecency regulations do not serve any constitutionally sufficient purpose,” the networks argued.