Org's approach called 'capricious'

A federal appeals court slapped back the FCC on Monday, deeming a pair of indecency rulings against Fox “arbitrary and capricious.”

The U.S. 2nd Circuit Court of Appeals sent the two rulings — centered on expletives uttered onstage during live broadcasts of the 2002 and 2003 Billboard Music Awards on Fox — back to the FCC, saying they represented a radical departure from previous FCC practice and were undertaken without legal justification.

FCC issued the rulings in response to two Fox broadcasts. During the 2002 Billboard Music Awards, Cher said of her critics, “Fuck ‘em.” At the 2003 kudocast, Nicole Richie said, “Have you ever tried to get shit out of a Prada purse? It’s not so fucking simple.”

Monday’s appeals court ruling prompted FCC chairman Kevin Martin to issue a precedent-setting statement in which he repeated the very words the agency said were indecent.

“If we can’t prohibit the use of the words ‘fuck’ and ‘shit’ during primetime, Hollywood will be able to say anything they want, whenever they want,” said Martin. The commission later issued a revised statement, deleting “prohibit” and inserting in its place “restrict.”

Observers say Monday’s 2-1 appeals court opinion is a death blow to the particular FCC indecency policy that was at the center of the case.

Previously, the FCC had not cited networks for fleeting expletives during live broadcasts. That changed in 2004, after the FCC considered another case, in which it said certain words were indecent and actionable in any context.

Fox, CBS, NBC and Hearst-Argyle Television challenged the legal basis for the change, arguing that it was not properly codified or justified.

The appeals court concurred, and its ruling means the FCC will have to try offering a legally sound basis for changing its practice on fleeting expletives. In the meantime, the FCC is barred from issuing any similar indecency violations.

In March 2006, the commission originally cited four programs for indecency violations — the two Fox broadcasts as well as an episode of ABC’s “NYPD Blue” and a broadcast of CBS’ “The Early Show.”

On “Blue,” a character said, “dick,” “dickhead” and “bullshit.” On the Eye’s program, during an interview segment, a former “Survivor” contestant referred to another contestant as a “bullshitter.”

Fox, ABC and CBS challenged the rulings. But before the case came to court, the FCC asked to review the cases. Upon review, the agency decided to withdraw its ruling against “Blue” on procedural grounds and invalidate its ruling against CBS, saying the context of a news interview exempted the utterance from indecency regs. However, the FCC let stand the two rulings against Fox.

Fox proceeded with its legal challenge, and CBS and ABC affiliate stations remained with the case as intervenors. NBC joined as well because it is directly involved with the 2004 indecency ruling that marked the FCC’s new policy on fleeting expletives.

That ruling concerned rock star Bono’s declaration, upon receiving an award, on NBC’s live broadcast of the Golden Globes Awards that “this is really, really fucking brilliant.” Some months after the program aired in 2003, the FCC initially ruled that the statement was not, under the regulations, indecent, because it was uttered live and fleetingly. FCC practice had allowed for such instances for more than 20 years.

Parents groups and social conservative groups expressed outrage at the FCC and at Congress. The next year — an election year — the commission reversed its ruling and declared that any utterance of “fuck” is indecent. The commission cited NBC for an indecency violation but did not fine the net, acknowledging that the policy was new.

NBC immediately challenged the reversal; the FCC took the case back on reconsideration. The agency has yet to decide the case.

Last year, when it issued its four indecency findings (against Fox, CBS and ABC), the agency claimed it was trying to provide guidance to broadcasters. Therefore, while issuing the four indecency violations, it was, again, not going to issue the usual attendant fines.

Even though the FCC revoked its 2006 findings against CBS and ABC before the case went to court, both nets supported Fox’s contention that the commission was applying the new policy of any-utterance-is-indecent even though the case upon which the policy is based was under reconsideration.

The FCC argued that the only issue before the appeals court was whether the words, uttered during primetime, were indecent.

The court rejected the FCC’s argument, saying that the reversed 2004 Golden Globes ruling — establishing the policy underlying the indecency rulings being challenged — was central to the case. Agreeing with the nets that the FCC had not properly justified or explained the policy change on “fleeting expletives,” the court vacated the 2006 indecency rulings against Fox and sent them back to the FCC, which the court described as being “divorced from reality.”

In an unusual step, the court went further, stating, “We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster.

“We note that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment,” the opinion continued. “With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague.”

Siding further with the nets, the court said it can understand why broadcasters have claimed FCC indecency regs “fail to provide the clarity required by the Constitution (and create) an undue chilling effect on free speech.”

“The first rule when you’re in a hole is to stop digging,” said T. Barton Carter, professor of communications law at Boston U. “The FCC ignored that.” After declaring that any utterance of “fuck” would be cited for indecency, the agency ruled that, in the case of “Saving Private Ryan,” which aired on ABC, repeated instances of “fuck” would not draw a citation because the language was “essential to the artistic integrity” of the material.

“What they did was establish themselves as a national artistic merit review board,” Carter said. “You had to laugh.”

Fox said in a statement: “We are very pleased with the court’s decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home.”

An industry lobbyist declared, “This could not be a better decision.”

The lobbyist and others contended that the court has essentially invalidated the fleeting expletive policy and the FCC’s reversed 2004 Golden Globe ruling that initiated it. “We don’t have to wait for the FCC to reconsider the Golden Globes ruling,” the lobbyist said. “The court just threw it out.”

Martin, who has led the commission’s stepped-up charge against allegedly indecent content, took an aggressive tone in his statement:

“Today, the 2nd Circuit Court of Appeals in New York said the use of the words ‘fuck’ and ‘shit’ by Cher and Nicole Richie was not indecent. I completely disagree with the court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience. The court even says the commission is ‘divorced from reality.’ It is the New York court, not the commission, that is divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation. … If ever there was an appropriate time for commission action, this was it.”

The statement was also posted on the FCC’s Web site, which is openly accessible to anyone, including children. The Parents Television Council, a supporter of the new FCC policy, mentioned only the “f-word” and “s-word” in its statement deploring the opinion.

An industry source dismissed Martin’s response as “petulant. We will continue to not air bad words. It’s an absurd proposition to think we would air expletives all the time and irresponsible for the FCC to suggest that. But if we make an occasional mistake, we will not be hit with a multimillion-dollar fine.”

In their challenge, the networks also raised questions about the constitutional validity of the overall FCC indecency regime. Since the court ruled in favor of the principal complaint, it was not obliged to address those larger questions. However, because it felt the questions are legitimate and the FCC’s answers thus far have been inadequate, the court expressed at length doubts as to the future of current FCC indecency authority.

Judge Pierre N. Laval, in a dissenting opinion, said the FCC had indeed properly justified its change of policy on fleeting expletives and had applied that change appropriately to the Fox broadcasts.

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