Original URL: http://www.theregister.co.uk/2007/06/06/us_appeals_court_smacks_down_fcc/

US appeals court smacks down FCC obscenity rule

F-bombs away!

By Kevin Fayle

Posted in Law, 6th June 2007 08:47 GMT

Fans of open-mic celebrity blunders rejoice!

The 2nd Circuit Court of Appeals has just ruled that the Federal Communication Commission's recent shift in its standards for obscenities uttered during a broadcast violated administrative rulemaking requirements. After declaring the new standards null and void, the court vacated an FCC order that determined that Fox broke the rules and sent the matter back to the agency for further consideration.

This doesn't get the networks off the hook completely, however. The agency could still reformulate its reasoning for the change in indecency standards so as to bring the shift in line with the rules for rulemaking, and there is always the possibility of an appeal to the Supreme Court. The 2nd Circuit did express doubts, however, that the FCC could ever come up with a reasoned basis for the new rule that would not run afoul of the Constitution.

The current controversy centers around several networks' airing of some objectionable language over the course of several years. Three of the complaints involved obscenities spoken during live broadcasts, and one focused on some naughty words written into the show NYPD Blue.

Specifically, the FCC order dealt with Cher's 2002 Billboard Music Awards appearance where she announced "People have been telling me I'm on the way out every year, right? So fuck 'em"; Nicole Richie's 2003 Billboard Music Awards presentation where she offered up the soulful lamentation "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple"; several episodes of NYPD Blue containing the words "bullshit," "dick," and "dickhead"; and, finally, a live interview on CBS' The Early Show where a Survivor contestant referred to a co-contestant as a "bullshitter."

The FCC eventually found that the comment on The Early Show occurred during a legitimate news interview, and was thus shielded from a finding of indecency by First Amendment concerns. The NYPD Blue issue was dropped because the only person who complained about the show's language had viewed the show on the East Coast, where it aired after 10 pm. This placed it in the "safe harbor" time period, which meant that the network wasn't open to sanctions because of the verbiage.

That left just the two Billboard Music Awards gaffes for the FCC indecency squad to judge. In order to understand how the agency ruled on the two ladies' comments, a little history is in order:

For almost 30 years, the FCC had declined to fine broadcasters for airing "fleeting expletives" - basically, any forbidden word the use of which was isolated, not repeated and not used solely as "verbal shock treatment."

Then, in response to Bono's f-bomb at the 2003 Golden Globes, the FCC did an about-face and decided to change its restrained enforcement policy. After the Golden Globe decision, any use of the word "fuck" - whether or not it was fleeting - would constitute indecency and invite a fine. The FCC reasoned that the word had no connotation other than referring to the act of fornication, and was therefore always indecent.

Several networks filed petitions for reconsideration with the FCC after that decision came down in 2004, but the FCC never acted on them, and began enforcing the new rule as if no challenges had been entered.

In the current case, the FCC initially found that each blurting of the f-word was indecent, but declined to issue fines since the networks had broadcast the programs before the new Golden Globes rule. The networks appealed and the court sent the case back to the FCC for a reconsideration. That remand produced the current order that jettisoned the claims against The Early Show and NYPD Blue.

In that order, the FCC again declined to issue a fine for Cher's dirty mouth, for the original reason that the statement occurred before the rule change. The FCC also passed on the opportunity to fine Fox for Nicole Richie's comments, even though it claimed that the statement was actionable under either the pre- or post-Golden Globes rule.

Given the lack of fines, the most important feature of the FCC's ruling from a legal standpoint was the agency's denial of Fox's argument that fleeting expletives should never receive sanctions. This cemented the Golden Globes rule and gave the 2nd Circuit fodder for some legal benchslapping.

The court found that the rule change was arbitrary and capricious since the FCC had offered no reasoned analysis explaining why the word "fuck" should always be indecent. The court even pointed to famous remarks by President Bush and Vice President Cheney as undermining the FCC's assertion that the words "fuck" and "shit" always referred to sexual or excretory functions.

[President Bush, you will recall, told Prime Minister Blair that the UN needed to "get Syria to get Hezbollah to stop doing this shit," and VP Cheney told a US Senator to "fuck yourself."]

Even Bono's notorious dirty word that brought about the new rules was only used to emphasize his statement, according to the court, and had no sexual reference at all.

In the face of this highly visible evidence of the commonplace non-sexual and non-excretory use of the swears in question, the court ruled that the agency had no good reason to change the rules in mid-stream after networks had operated under the old rule for years.

The court sent the issue back to the agency to wrap things up, but warned the FCC that, even if it were to come up with a more reasoned analysis for the rule, the new regulation would most likely be banned by the Constitution. The availability of less restrictive alternatives, such as the V-chip, would probably undermine constitutional support for the FCC's oversight of indecency over the airwaves, according to the 2nd Circuit.

This will almost certainly inspire the FCC to issue a more detailed reason for the new rule, which will in turn inspire another appeal by the networks to the 2nd Circuit, who will then slap the rule down on constitutional grounds, opening up an avenue for the FCC to make an appeal to the Supreme Court. Agencies don't like being told that the Constitution limits their authority, so the FCC will almost certainly fly in the face of the 2nd Circuit's warning in order to bring the matter before the Supremes' attention.

If all this does indeed go down, and the Supreme Court does decide to look at the case, things become pretty interesting. With a conservative court, priggishness might prevail and a ruling could go in favor of the FCC. Many of the justices on the Court have shown themselves to be defenders of the First Amendment, however, so they could also agree with the 2nd Circuit. In the end, it could go either way.

But just remember: no matter what happens with the indecent language rule, flash a breast during the Super Bowl and all hell will break loose. Because of that wonderful feature of American prudery, it's a safe bet that the networks will still implement time-delay technologies, and use them for any highly-watched live broadcast.

It might also be a good idea to cut down on the amount of booze at awards shows. Just a thought. ®