WASHINGTON — The Federal Communications Commission has reversed itself on two of four indecency rulings issued earlier this year and challenged by the Big Four networks in court. But FCC chairman Kevin J. Martin continued to send an aggressive message to Hollywood.
Coming minutes before a court-ordered deadline expired late Monday, the agency said that after an internal review, regulators had decided an episode of CBS’ “The Early Show” and one of ABC’s “NYPD Blue” were not, as previously adjudicated, indecent or profane.
The FCC said the two other rulings — involving Fox’s live broadcasts of the 2002 and 2003 “Billboard Music Awards” — would stand. Fox plans to proceed with its legal challenge of those rulings.
“Today’s decision highlights our concern about the government’s inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases,” Fox spokesman Scott Grogin said in a statement. “We look forward to court review and the clarity we hope it will bring to this area of the law.”
“The commission has always held that the use of certain words could be indecent,” Martin said in a statement released shortly before midnight Monday. “Consistent with that precedent, this order affirms the use of the F- and S-words in the 2002 and 2003 ‘Billboard Music Awards’ was indeed indecent. Hollywood continues to argue they should be able to say the F-word on television whenever they want. Today, the commission again disagrees.”
None of the four rulings originally involved fines, but the nets challenged them anyway, arguing the decisions were arbitrary and inconsistent. Before a federal court could start proceedings on the four cases, the FCC asked for a remand of them, claiming that by filing their lawsuit, the plaintiffs had precluded the agency from reviewing the decisions after issuing them last March.
The FCC said the “broadcast of the S-word during ‘The Early Show’ was neither indecent nor profane in this instance, due to the fact that it occurred during news programming. Finally, the commission dismisses the indecency complaint regarding the ‘NYPD Blue’ episodes as inadequate to trigger enforcement action.”
In a statement, the Eye said, “We are pleased that the FCC has dropped its misguided indecency case against one of our news programs. Our pleasure is fleeting, however, in that a number of indecency cases and inquiries are still pending, either in the courts or at the FCC. The cloud hanging over broadcasters will remain until the FCC returns to its previous time-honored practice of more measured indecency enforcement. CBS will continue to pursue all of our legal remedies to that end.”
ABC declined comment, as did NBC, which is party to the legal challenge even though none of the rulings involve Peacock broadcasts.
Experts gave mixed reviews to the FCC for its decisions in the remand. Communications attorneys John Crigler and Steve Weiswasser welcomed the agency’s dismissal of the ruling against “NYPD Blue” because the complaint had come from a viewer not in the market in which it aired. The lawyers interpreted that as part of Internet email campaigns typically generated by conservative groups, urging people to complain even if they haven’t seen the broadcast.
They also applauded the agency’s attempt to carve out an exemption for expletives uttered during live broadcasts, depending on whether the broadcaster had at least tried sufficiently to prevent it from happening.
“But how do we know whether the broadcaster was diligent enough? How do we know if the slip-up had been preventable?” Crigler said.
“It’s still pretty much impossible to tell when you’ll get in trouble with the commission,” Weiswasser said.
Rather than clarify its policies on indecency, as the agency claimed it did, “The mud is just getting deeper,” Crigler said.