FCC appeals ruling that tossed its indecency rules


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When it comes to indecency, the Federal Communications Commission would rather fight than switch.

The FCC, as expected, has filed an appeal of a July ruling by a three-judge panel of the Second Circuit Court of Appeals in New York that tossed the regulatory agency’s enforcement policies regarding indecent programming and called the regulations ‘unconstitutionally vague and chilling.’


That ruling was in response to a fight between the FCC and News Corp.’s Fox Broadcasting over so-called fleeting expletives. The FCC ruled in 2004 that television stations could be fined for indecency violations in cases when, during a live program, an expletive was broadcast. That happened on Fox in 2002 and 2003 when Cher and Nicole Richie cursed during award shows and were not bleeped. The singer Bono also put NBC in hot water when he swore during a 2003 Golden Globes broadcast.

The FCC never actually followed through with fines for Fox or NBC, but the industry, led by Fox, took issue with the agency’s setting the stage for future fines and challenged the fleeting-indecency rules in court. At the same time, broadcast networks started going to greater lengths to insure that no swear words accidentally slipped through their censors, including running most live shows with delays.

Although Fox’s appeal to the Second Circuit Court was regarding the fleeting expletives, the court’s ruling went a step further and said the FCC’s enforcement rules were harmful to speech.

‘Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,’ Judge Rosemary S. Pooler wrote in the Second Circuit’s 3-0 decision. ‘Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.’

In its appeal, the FCC said the court had overstepped its bounds in its ruling. Rather than address the constitutionality of banning fleeting expletives, ‘it instead invalidated the agency’s overall approach to indecency enforcement.’ The agency chastised the court for reaching this decision, ‘even though the Supreme Court approved the Commission’s contextual approach in FCC vs. Pacifica.’

The 1978 Pacifica decision was the foundation of the FCC’s current indecency regulations. It came about as a result of a radio broadcast of late comedian George Carlin’s ‘seven dirty words’ routine. The FCC’s enforcement of its indecency regulations, which are in effect from 6 a.m. to 10 p.m., has at times been erratic.


However, since Janet Jackson’s top opened up during the 2004 halftime Super Bowl show, the agency has been under pressure to toughen up on indecency. In 2006, Congress voted to boost the maximum fine for each violation tenfold, to $325,000.

The FCC said it is on the court to grant a rehearing of this case because ‘it is all but impossible to see how the Commission could develop effective indecency guidelines under the panel’s strictures.’ Furthermore, the agency warned that without its current rules, broadcasters would be able to mirror the ‘pervasiveness of foul language’ that fill ‘other media such as cable.’

‘The three-judge panel’s decision in July raised serious concerns about the Commission’s ability to protect children and families from indecent broadcast programming,’ Austin Schlick, the FCC’s general counsel, said in a statement. ‘The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals’ further consideration of our arguments.’

Should the Second Circuit decide not to hear the FCC’s appeal, the agency could then attempt to appeal the case to the Supreme Court.

-- Joe Flint

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