Even on television, the rules only apply between 6 a.m. and 10 p.m., noted Tim Winter, president of the pro-regulation Parents Television Council. “Radio and television broadcasters already have the ability to be as indecent as they want after 10 p.m.”
The FCC policy under attack flowed from the 1978 Pacifica decision, which upheld the FCC’s reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.
For many years, the FCC did not take action against broadcasters for one-time uses of curse words. But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its longstanding policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television.
The 2nd U.S. Circuit Court of Appeals in New York declared the FCC policy unconstitutionally vague.
The Billboard Music Awards aired on Fox in both 2002 and 2003. Cher used the F-word the first year and reality TV personality Nicole Richie uttered the F-word and S-word a year later. The FCC did not issue a fine in either case, but said the broadcasts violated its policy.
The “NYPD Blue” episode led to fines only for stations in the Central and Mountain time zones, where the show aired at 9 p.m., a more child-friendly hour than the show’s 10 p.m. time slot in the East.
Justice Sonia Sotomayor is not taking part in the case because she served on the appeals court during its consideration of some of the issues involved.
The case is FCC v. Fox Television Stations, 10-1293.