Court deals serious blow to FCC expletive policy

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Broadcasters scored a major victory yesterday when a federal court invalidated a Federal Communications Commission indecency ruling against Fox Television, calling the regulator's policy of punishing "fleeting expletives" "arbitrary and capricious."

The Court of Appeals for the Second Circuit in New York ruled the FCC did not "articulate a reasoned basis for this change in policy" when it began penalizing broadcasters in 2004 for accidentally airing expletives.

The case stems from two broadcasts of the Billboard Music Awards on Fox. In the 2002 show, Cher lashed out at critics, saying: "[Expletive] 'em." The next year, Nicole Richie said: "Have you ever tried to get cow [dung] out of a Prada purse? It's not so [expletive] simple."

In March 2006, the FCC determined that the Billboard shows violated indecency rules but did not impose a fine since the broadcasts aired prior to a 2004 policy crafted in response to a 2003 NBC broadcast of the Golden Globes, in which U2 singer Bono uttered the phrase, "[Expletive] brilliant." The commission found that a certain expletive, regardless of usage, "inherently has a sexual connotation," and is therefore actionable under indecency standards.

Yesterday's decision, by a 2-1 margin, threw out the FCC's ruling against Fox but stopped short of overturning the policy, instead sending the case back to the commission for further "explanation for its departure from prior precedent."

In his dissenting opinion yesterday, Judge Pierre Leval said the FCC had "furnished a reasoned explanation" for its change of policy.

FCC Chairman Kevin J. Martin harshly criticized the court's ruling.

"I completely disagree with the court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that [expletive] and [expletive] are fine to say on broadcast television during the hours when children are most likely to be in the audience," he said.

Mr. Martin used the occasion as an opportunity to call on Congress to mandate a la carte programming, a solution he said would "avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families."

Such a plan would require that cable companies allow viewers to select and pay for individual channels rather than an entire package.

Fox Broadcasting said it was "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."

Christine Corcos, a law professor at Louisiana State University, said courts generally like to give agencies discretion "because they assume that agencies know what they're doing."

"But the court is critical here. The court is saying, 'Look, you can certainly change your policy but you have to explain then what the new policy is going to be and what would be a transgression under this new policy,' " said Ms. Corcos, editor of Media Law Prof Blog.

The majority opinion, written by Judge Rosemary Pooler, rejected an FCC argument that the legal review should only cover the Billboard shows and not the overarching policy established after the Golden Globes. "If that policy is invalid, then we cannot sustain the indecency findings against Fox."

In 1978, the U.S. Supreme Court affirmed the FCC's authority to restrict the public broadcast of indecent language. In FCC v. Pacifica, the court held that government censorship of "patently offensive" words can pass constitutional muster. That case put in place an enforcement regime partially justified on the "first blow" theory that indecent material on the airwaves enters into the privacy of the home uninvited and without warning.

The Second Circuit Court of Appeals ruling yesterday rejected the FCC's use of the "first blow" theory to support its new policy: "The agency asserts the same interest in protecting children as it asserted 30 years ago, but until the Golden Globes decision, it had never banned fleeting expletives."

The court noted that all speech covered by indecency regulation is protected by the First Amendment. Although the court refrained from making a constitutional assessment, it did "question whether the FCC's indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague."

Advocacy groups were quick to seize on yesterday's decision.

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

"By a mere 2-1 margin, the Second Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry," said Tim Winter, president of the Parents Television Council. "Community decency standards should not be decided by two judges in New York."