WASHINGTON The federal appeals court in New York on Monday tossed out a key FCC indecency ruling that said a slip of the tongue gets broadcasters a fine, telling the commission that it failed to give a good reason for its decision and likely couldn't find a good reason if it had to.
"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.
Although a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.
But even the court's remand came with a catch, as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.
"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote. "While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further than this opinion."
FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong and not the commission.
"I find it hard to believe that the New York court would tell American families that 's---' and 'f---' are fine to say on broadcast television during the hours when children are most likely to be in the audience," he said in a statement. "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 'f---' does not invoke a sexual connotation."
In its original decision, the FCC concluded that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards aired by Fox were indecent and profane. (Billboard, The Hollywood Reporter and Adweek are units of the Nielsen Co.)
Opponents of the commission's attempts to regulate speech called the decision a victory.
"Score one for the First Amendment," said Media Access Project president and CEO Andrew Jay Schwartzman. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."
Media Access Project attorneys represented the Center for Creative Voices in Media as intervenor in the case. CCV's members include many in the creative community, and its brief to the court stressed the effect of the FCC's action on writers, directors and other artists.
The ruling did not go unnoticed in Hollywood as AFTRA, DGA, SAG, WGA East and WGA West issued a joint statement applauding the decision. The guilds joined a coalition of arts, filmmakers and free expression organizations in filing a friend-of-the-court amicus brief urging the court to overturn the FCC ruling.
Fox said the ruling recognizes Americans' ability to make their own decisions about what programming they want to see: "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."
Commerce Committee chairman Sen. Daniel Inouye, D-Hawaii, urged the FCC to appeal. "It is disappointing that a divided Second Circuit panel chose to invalidate the FCC's efforts to combat the gratuitous use of offensive language on broadcast television," he said. "I hope and expect that the commission will move swiftly in appealing this case to the Supreme Court."
Although the commission found that the Billboard shows violated the broadcast indecency rules, it didn't issue a fine because the programs predated a policy established in 2004 after U2 frontman Bono said during an NBC broadcast that winning a Golden Globe was "really, really f-ing brilliant."
In the Bono decision, the FCC changed its definition of "fleeting" use, deciding that a certain word can be so vile that it runs afoul of the nation's indecency laws. The court's decision Monday appears to undo the Bono decision, which has been sitting at the commission on review for some time.
"The [commission's order] makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient," Pooler wrote. "For instance, the commission states that even nonliteral uses of expletives fall within its indecency definition because it is 'difficult [if not impossible] to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.' This defies any common-sense understanding of these words, which as the public well knows are often used in everyday conversation without a 'sexual or excretory' meaning. Bono's exclamation that his victory at the Golden Globes Award was 'really, really, fucking brilliant' is a prime example of a nonliteral use of the 'F-word' with no sexual connotation."
NBC Universal called the decision a dose of "common sense" for the commission, which has dithered over a final ruling in the Bono case for years.
"The court's ruling discredits the FCC's 2004 Golden Globes decision—which has been subject to unresolved appeals pending at the agency for more than three years—for its abrupt departure from long-standing policy regarding fleeting expletives in live programming," the network said.
The court went further than simply discrediting the Bono decision, saying that the time might be right for the unique treatment of the broadcast medium to end, given the media landscape that has arisen with the advent of cable and satellite TV and the Internet. The decision could be one of the first to take a chunk out of the scarcity doctrine expressed in the U.S. Supreme Court's Red Lion case or the underlying Pacifica case that defined the commission's ability to regulate indecent speech.
"This is a huge shift away from Red Lion and Pacifica," one network executive said.
The 1978 Pacifica decision came after a complaint was raised against a Pacifica station in New York for playing comedian George Carlin's bit "Filthy Words." While it established First Amendment protection for indecent speech, it also said the commission could regulate it to protect children from the language.
The 1969 decision in Red Lion Broadcasting Co. v. FCC said broadcasters get First Amendment protection, but granted the government the power to regulate broadcasters to preserve openness in covering the news because they operate with a government license on scarce radio spectrum.
The New York court, however, said the judges would be foolish if they failed to note the advent of cable and satellite TV and the Internet.
"We would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the contest of regulating broadcast television," Pooler wrote.
She added that Americans can take steps to block content they don't wish to see, writing "blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."
The court's language on the V-chip and the nature of cable and satellite TV could impact more than just indecent speech on TV and radio. Recently, the FCC asked Congress for the authority to regulate violent speech in much the same way it regulates broadcast indecency on all platforms. Monday's ruling could make it more difficult for Martin to push those plans.
"This is a timely opinion as public policy makers weigh the merits of further program content restrictions," National Association of Broadcasters representative Dennis Wharton said. "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content."
The decision Monday is one of two free-speech cases the court is expected to decide soon. The decision on Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show also is due out of the Philadelphia circuit court of appeals.
Under federal court rulings and commission rules, 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." Indecent speech can be aired safely between 10 p.m.-6 a.m. Broadcasters today can face a fine of as much as $325,000 per violation.