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Court rejects FCC expletives regulation

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NEWS MEDIA UPDATE   ·   SECOND CIRCUIT   ·   Broadcasting   ·   June 6, 2007

NEWS MEDIA UPDATE   ·   SECOND CIRCUIT   ·   Broadcasting   ·   June 6, 2007

Court rejects FCC expletives regulation

  • An appeals court says the FCC did not adequately justify its regulation of isolated expletives and speculates that any such targeted policy could violate the First Amendment.

June 6, 2007  ·   In a sweeping ruling, a federal court of appeals in New York (2nd Cir.) has rejected an attempt by the Federal Communications Commission to regulate broadcasting of isolated expletives.

The court ruled the agency had not put forth a reasonable explanation for its new policy and went on to express doubt that any such reason exists that did not run afoul of the First Amendment.

The ruling was a major victory for broadcasters, who had launched the court challenge after the FCC attempted to hold broadcasters in violation of agency policy following the airing of expletives in four incidents dating from 2002. That year, during the Billboard Music Awards broadcast being aired by Fox Television, pop singer Cher said the word “fuck” during an acceptance speech.

In 2003, the same awards show drew FCC scrutiny when celebrity heiress and reality television star Nicole Richie queried the audience during the live broadcast: “Have you ever tired to get cow shit out of a Prada purse? It’s not so fucking simple.”

The two other incidents that prompted FCC action aired during an episode of ABC’s police drama “NYPD Blue” involving the words “bullshit” and “dickhead,” and on CBS’s morning program “The Early Show” when during an interview, a reality show contestant described a competitor as a “bullshitter.”

After investigating these incidents, the FCC found each utterance to be indecent and profane, though it later reversed its decision in the “NYPD Blue” incident because of a technicality and in the case of “The Early Show” decided the expletive came in the course of legitimate newsgathering.

The agency stood by its decision on the Billboard Music Awards shows by Fox after applying a standard for indecency first developed in 2003 when rock star Bono expressed his excitement over receiving a Golden Globe award with the words “fucking brilliant.” The new policy said that any use of the word “fuck” is presumptively indecent because of its inherent offensiveness and sexual connotations.

It was that 2003 Bono-inspired policy that a three-judge appellate panel overturned on Monday. Prior to that, the FCC had maintained the position that fleeting, isolated broadcasts of expletives would not form the basis of agency scrutiny or punishment. The court ruled that the FCC had not sufficiently justified this change in standards.

“Agencies are of course free to revise their rules and policies,” Judge Rosemary S. Pooler wrote for the majority. “Such a change, however, must provide a reasoned analysis for departing from prior precedent.”

The FCC had argued that its new test put the burden on broadcasters to ensure the public is not exposed to even isolated utterances of inappropriate language, not on the public to avoid hearing them.

The court rejected this claim, saying it was undermined by the FCC’s acknowledgment that in some instances – such as in news reports and artistic work – expletives could be broadcast. Thus, the evidence did not support the FCC’s contention that its new policy “was based on its concern with the public’s mere exposure to this language on the airwaves.”

The case will now be sent back to the FCC for further consideration, but the court went out of its way to warn the agency that it was not an invitation to simply try to bulk up the agency’s justification for its new policy. Near the end of the opinion, the court took the unusual step of warning the FCC that any regulation it might impose on the broadcasting of fleeting expletives may so restrict the ability of broadcasters to air certain programming that the policy would violate the First Amendment.

“[W]e question whether the FCC’s indecency test can survive First Amendment scrutiny,” Pooler wrote. “For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and consequently, unconstitutionally vague.”

Writing in dissent, Judge Pierre N. Leval said the agency had sufficiently justified its reasons for changing the policy on isolated expletives. That the majority might disagree with those reasons is not enough to justify overturning them, he said.

“What we have is at most a difference of opinion between a court and an agency,” Leval wrote.

(Fox Television Stations, Inc. v. FCC, Media Counsel: Carter G. Phillips, Sidley Austin LLP, Washington, D.C.)NW

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