Feds Rebut Broadcasters

NEW YORK Federal regulators have dismissed broadcasters’ contentions that a strict new rule covering indecent language is unfair, saying the “fleeting reference” policy passes Constitutional muster.

In its argument filed in the 2nd U.S. Circuit Court of Appeals in New York, the FCC said Fox’s broadcasts of the 2002 and 2003 Billboard Music Awards were indecent.

“This court should uphold the commission’s reasonable assessment that contemporary community standards for the broadcast medium, however loosely viewed, simply do no permit entertainers gratuitously to utter the ‘F-word’ and the ‘S-word’ in awards shows broadcast on national television at a time when substantial numbers of children are certain to be in the viewing audience,” the FCC wrote.

During the 2002 show Cher used the ‘F-word.’ Nicole Richie used the ‘S-word’ during the broadcast in 2003.

While the commission found that the shows violated the broadcast indecency rules, it did not issue a fine because the programs predated a policy established in 2004 after U2 frontman Bono used profanity during his Golden Globe acceptance speech.

Fox, CBS, NBC and other broadcasters have challenged the commission’s decision, arguing that it chills free speech, threatens live programming and is unduly vague.

The networks contend that the FCC flip-flops on individual shows, and violations make it impossible to determine what exactly the agency means. Broadcasters pointed out that the commission has said the use of profanity in the Steven Spielberg movie Saving Private Ryan is not actionable while their use in the Martin Scorsese documentary The Blues: Godfathers and Sons is.

The FCC claims that’s an attempt by the broadcasters to obscure the true legal arguments in the case.

“Tellingly, the networks spend virtually no effort defending Fox’s broadcasts or arguing that the commission erred in determining that they were indecent and profane,” the FCC said. “Instead it devotes its efforts to attacking nonfinal orders involving other parties, and raising abstract claims regarding news and sports broadcasts that are far removed from the entertainment programming at issue here.”

The FCC also dismissed the argument that the new policy threatens to end live coverage. In its brief the commission contends that the question at hand involves an entertainment awards show, not a live news or sports event.

“Fox breathlessly asserts that the order under review marks ‘the end of truly live television,’ ” the FCC wrote. “That claim ignores the commission’s findings on precisely this point. The commission was careful to point out that ‘this case does not involve breaking news coverage that Fox and other broadcasters have traditionally presented in so-called ‘real time.’ “

Since the FCC’s decision in the Golden Globes case, the policy has been controversial as broadcasters argue that the commission changed the long-standing rule that held broadcasters blameless for the unplanned utterance of individual words.

This case, in the 2nd U.S. Circuit Court of Appeals in New York, and another in the 3rd U.S. Circuit Court of Appeals in Philadelphia involving CBS’ broadcast of the 2004 Super Bowl halftime show in which Janet Jackson’s breast was bared, both challenge the government’s enforcement of its indecency statutes.

As defined by the FCC, material is indecent if it “in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium.” While obscene speech is not protected by the First Amendment, indecent speech is as the federal courts and the FCC have ruled that such speech can be safely aired from 10 p.m.-6 a.m.