The ruling by the three-judge panel came after the Supreme Court last year upheld the policy on procedural grounds and returned it to the 2nd Circuit for consideration of constitutional arguments.
In Tuesday’s ruling, Judge Rosemary Pooler wrote for the three-judge panel, describing the evolution of the FCC’s rules for what it regarded as indecent speech.
She recounted how the FCC first exercised its authority to regulate speech it considered indecent in 1975 after the airing of comedian George Carlin’s “Filthy Words” monologue containing a 12-minute string of expletives broadcast on the radio at 2 p.m.
The FCC pursued a restrained enforcement policy afterward, limiting its enforcement powers to the seven specific words in the Carlin monologue, she said.
In 1987, the FCC ended its focus on specific words, adopting a “contextual approach to indecent speech,” Pooler said.
The FCC changed its policy in 2004, responding to Bono’s outburst, by saying for the first time that a single use of an expletive _ a so-called fleeting expletive _ could result in a fine, she wrote.
The commission then expanded its enforcement efforts and began issuing record fines for indecency violations by treating each licensee’s broadcast of the same program as a separate violation rather than a single violation for each program, Pooler said.
In citing the confusion caused by the FCC’s current policy, Pooler wrote that the FCC found some commonly used expressions to be indecent while others, such as “pissed off,” “up yours” and “kiss my ass,” were found not to be patently offensive.
“The English language is rife with creative ways of depicting sexual or excretory organs or activities,” she wrote. “Even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.”
Still, she noted that after the FCC defined the seven dirty words banned for broadcasters after Carlin’s performance, not a single enforcement action was brought in the nine years afterward.
“This could be because we lived in a simpler time before such foul language was common. Or it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited,” Pooler said.
AP Technology writer Joelle Tessler in Maryland contributed to this report.