- The Washington Times - Tuesday, November 7, 2006


The Federal Communications Commission changed its mind and dismissed charges against two television shows it had deemed indecent but upheld its findings against two others, according to a court filing.

In April, Fox Television Stations Inc., CBS Broadcasting Inc. and others sued the FCC and asked the appeals court to invalidate its conclusion that all four broadcasts were indecent, saying the action was unconstitutional and contrary to the law.

At issue is when — if ever — broadcasters should be allowed to air foul language. Broadcasters argue that the uttering of “fleeting, isolated and in some cases unintentional” profanities is not enough to render a broadcast indecent.

They also argued that the FCC’s enforcement has been inconsistent, which has chilled speech and violates the First Amendment. The companies also said the stakes have gotten much higher since Congress passed a law increasing fines by a factor of 10.

The case is based on a 76-page omnibus orderthe FCC released in March 2006 that settled “hundreds of thousands of complaints” regarding broadcast indecency.

In the order, the FCC proposed fines against several shows but did not issue fines against the four that are the subject of the appeals court case. FCC lawyers said that while those shows were indecent, they should not be fined because they aired before a policy change in enforcement of broadcast indecency rules.

The two shows the FCC still considers indecent were:

• A Dec. 9, 2002, broadcast of the Billboard Music Awards on Fox, in which singer Cher uttered an obscene phrase.

• A Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie uttered a pair of offensive words.

“Hollywood continues to argue they should be able to say the f-word on television whenever they want. Today, the commission again disagrees,” FCC Chairman Kevin J. Martin said.

The agency changed course on two other cases, ruling they were not indecent:

• Several episodes of the ABC police drama “NYPD Blue,” that aired between Jan. 14 and May 6, 2003, in which characters used offensive language. Mr. Martin said those complaints were dismissed “solely on procedural grounds and they were not decided on the merits.”

• A Dec. 13, 2004, a CBS broadcast of the “Early Show” in which a “Survivor” cast described a fellow contestant with an epithet. “I believe the commission’s exercise of caution with respect to news programming was appropriate in this instance,” Mr. Martin said.

Fox spokesman Scott Grogin said: “Today’s decision highlights our concern about the government’s inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases. We look forward to court review and the clarity we hope it will bring to this area of the law.”

At the time of the order, the FCC said it was attempting to give broadcasters guidance on what was permissible, and promised that the findings would not affect their licenses. The broadcasters were not appeased and filed suit.

With the FCC’s response, the court will consider the two remaining cases under an expedited schedule. The first round of briefs are expected in two weeks, and oral arguments could begin in January.

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