June 2007 Archives

On Line Culture

On my way home today, I walked by hundreds of people waiting in line at Apple and AT&T stores. The iPhone line snaked all the way down Greene to Houston, along Houston and then halfway up Mercer. Prince St was filled with photographers taking photos of the purchasers (including Whoopi Goldberg) and people gawking at the line.

The first people to plunk down upwards of $500 for a iPhone had been waiting in line for days.

Why? Is it just the Jobs Reality Distortion Field at work?

The obvious answer comes from basic microeconomics. Demand exceeding supply. Until 6 PM today, the supply of iPhones in the world was 0 while lots and lots of people (including me) wanted one. At 6 PM, the supply started to exist and the market is quickly adapting and supplying the customers.

That assumes that there is enough supply to meet the demand. If you were not in line early, you may not be able to buy an iPhone at all this weekend. It might take weeks or months to resupply after the launch.

But even if there is enough stock at the Apple stores to meet demand, I'm sure that people would have lined up early. An Apple release is an event. A while back, I walked by a line snaking around the block at the Apple store in NYC for the release of a new version of the Mac OS-- one that could have been pre-ordered online.

For some consumer electronics, demand still outstrips supply. Just a couple of weeks ago, David Berkowitz waited in line for a Wii at the Nintendo store. For some consumer electronics, demand still outstrips supply. Just a couple of weeks ago, David Berkowitz waited in line for a Wii at the Nintendo store.

In Soviet Russia, people queued up for bread because the demand for bread regularly exceeded the supply. In Manhattan, people wait in line for up to an hour for a burger at Shake Shack.

(credit: A Hamburger Today)

In 2004, Star Wars fans waited on line-- many in costume-- at the Ziegfeld theater for Star Wars Episode II. Yes, they waited in line after seeing the awful Episode I. Admittedly, it was a fundraiser for charity, but just as much a celebration of the fan community.

I suspect that waiting in line is not merely a way of allocating goods, but just as much for the shared experience and feeling part of a community.

Have you heard that Apple is releasing a phone today?

When the first iPod was released, six years ago, the first Slashdot reaction read, "No wireless. Less space than a nomad. Lame." The early reviews of the iPhone are in and they're very positive for Apple's contribution. The device itself, despite some flaws, is brilliant. But the critics are not quite as generous towards AT&T's contribution-- the voice and data cell network. Here's a handy scorecard from Valleywag

In the WSJ, Walt Mossberg writes, "The iPhone has a major drawback: the cellphone network it uses. It only works with AT&T… it uses a pokey network called EDGE, which is far slower than the fastest networks from Verizon or Sprint that power many other smart phones."

The NY Times's David Pogue: "Then there’s the Internet problem. When you’re in a Wi-Fi hot spot, going online is fast and satisfying. But otherwise, you have to use AT&T’s ancient EDGE cellular network, which is excruciatingly slow. The New York Times’s home page takes 55 seconds to appear; Amazon.com, 100 seconds; Yahoo. two minutes. You almost ache for a dial-up modem."

But I'm not sure what the big problem is. After all, under the FCC's definition, AT&T's 300 kbps EDGE network qualifies as broadband. For the last 12 years, the Commission has continued to define a broadband connection as one capable of 200 kbps or more in one direction.

A new report released this week from the Communications Workers of America finds that the US has fallen out of the first tier of connectivity. "The median download speed for the 50 states and the District of Columbia was 1.9 megabits per second (mbps). In Japan, the median download speed is 61 mbps, or 30 times faster than the U.S. The U.S. also trails South Korea at 45 mbps, Finland at 21 mbps, Sweden at 18 mbps, and Canada at 7.6 mbps."

If upload speeds (which is what individuals use when speaking, sending and publishing to the rest of the internet) were averaged in, the US would fall even further behind, as most cable and DSL broadband connections are asymmetrical. The median upload speed for internet users in the US is 371 kbps-- only 19% as fast as the median download speed. Broadband connections in the US are deployed for consumption, not speech. If the FCC definition were modified to require the paltry 200 kbps connection speed in both directions, many US broadband connections would no longer be classified to be broadband.

Lobster Rolls and the Lanham Act

Rebecca Charles, the chef of Pearl Oyster Bar is suing Ed McFarlane and Ed's Lobster Bar for creating a restaurant that nearly clones Pearl.

Chef Sues Over Intellectual Property (the Menu)

"Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.

"The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad."

Serious Eats: Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore: "'I've looked the other way for years,' Rebecca said. 'I understand that chefs take dishes from the restaurants they worked in when they open their own restaurants. But Ed's Lobster Bar is much more than a knock-off. It's an exact duplicate of Pearl. Thirty-one of the 34 dishes on his menu are simply lifted from Pearl. The stools, the look and feel of the place, everything is exactly the same. It's offensive. Plus he lied to me. He told me and the staff when he quit that he was leaving to open an Italian seafood restaurant. I said great. I even offered to help him. Then, six weeks later, he opens Ed's.'"

McFarlane was sous-chef at Pearl Oyster Bar for six years before leaving Pearl to start Ed's and much of the press coverage of the Ed's opening mentioned the Pearl heritage.

Pearl Oyster Bar is derivative of the New England clam shack, albeit with Manhattan prices. Ed's is not the first restaurant to follow a similar formula. Previously, Charles' partner left acrimoniously to start Mary's Fish Camp-- a direct competitor-- across the street.

But, Mary's menu differs from Pearl's offering more dishes and slightly different preparations. To Charles, Ed's appears to be a clone of Pearl rather than a derivative working from the same source material. Charles asserts that some recipes at Ed's-- the Caesar salad, in particular-- are based on trade secrets acquired while McFarlane worked at Pearl.

In Two Pesos, Inc. v. Taco Cabana, Inc., the Supreme Court ruled that trade dress in a restaurant is projectable if the trade dress is inherently distinctive. Note that there are a number of restaurants in NYC inspired by New England clam shacks and they seem to adopt somewhat different look and feel than Pearl. Is there a likelihood of confusion here? If the details are in fact so similar, confusion could be likely.

Serious Eats: Is Imitation Always the Sincerest Form of Flattery?

Internet Radio Goes Silent

Today, a large coalition of webcasters, including small hobby operations to large sites-- including Yahoo, MTV, Pandora, Rhapsody, Live365, WOXY and KCRW -- are going silent for the day to bring attention to new royalty rates set by the Copyright Royalty Board that are set to go into effect on July 15. For many of the smaller commercial webcasters to continue to webcast the same content would cost more in license fees than their total revenues.

RAIN: Massive listener support cripples servers, switchboards: "An overwhelming response by listeners to today's ongoing 'Day of Silence' event has overwhelmed the web and database servers being used by SaveNetRadio.org and is tying up switchboards in Congressional offices all over Capitol Hill as a deluge of online radio listeners have rushed to contact their representatives to ask them to co-sponsor the 'Internet Radio Equality Act.'"

Mike Musgrove, Washington Post: Web Radio Stations Hope Silence Speaks Volumes About Fee Hike: "Many Web-based music services and some conventional radio stations that offer Internet audio streams are scheduled to shut off their online music and programming until midnight tonight. Organizers are calling it Day of Silence and are hoping it will focus attention on a royalty-fee increase that many Internet-based broadcasters say could drive them out of business."

Felix Contreras, NPR Morning Edition Internet Radio Silently Protests Royalties: "Many fans of Internet radio will be tuning in to nothing Tuesday, as many Webcasters participate in 'A National Day of Silence.'"

In Findlaw, RealNetworks' Senior Counsel Cecily Mak A Look at Radio Silence: When Copyright Law Reform Goes Terribly Wrong: "The webcasters have an excellent point: Instead of increasing rates enough to properly compensate rights holders and encourage creation, the new rates are so unreasonably high that they are threatening the survival of an entire industry. Unless the new regulations are successfully repealed, the new rates will result in true perpetual 'radio silence' for thousands of online radio stations - a loss for rights holders, distributors and consumers alike."

Deven Desai at Madisonian.net, Sound of Silence: "if nothing changes, on July 15, 2007, Internet radio stations will have to pay increased royalty rates such that many of the smaller and even some of the larger Internet radio stations will have to pay more than AM and FM stations. The increase appears to be large enough that many of the Internet radio stations might have to shut down. The whole system seems a mess."

On Thursday, the House Small Business Committee will hold a hearing on Assessing the Impact of the Copyright Royalty Board Decision to Increase Royalty Rates on Recording Artists and Webcasters with testimony from:

Bryan Miller
La La Media, Inc.
Palo Alto, CA

Tom Silverman
Tommy Boy Records
New York, NY

Joey Allcorn
Columbus, GA

Cathy Fink
Washington, DC

Kieran Kelly
Stunning Models on Display Records
Astoria, NY

Thomas F. Lee
American Federation of Musicians
New York, NY

Richard Eisworth
President, General Manager & CEO
Cincinnati Public Radio
Cincinnati, OH

McDowells' Golden Arcs

In-N-Out claims Utah burger joint is a ripoff. Is the use-in-commerce analysis affected by the fact that some of the marks are used on a secret menu?

Unrelated miscellany

Before clickwrap, before shrinkwrap and before the Copyright Act of 1909, a record jacket with a license agreement: No license is granted to use this record when sold at a less price..

Julian Dibbell explores The Life of the Chinese Gold Farmer in cyberspace: "It was an hour before midnight, three hours into the night shift with nine more to go. At his workstation in a small, fluorescent-lighted office space in Nanjing, China, Li Qiwen sat shirtless and chain-smoking, gazing purposefully at the online computer game in front of him. The screen showed a lightly wooded mountain terrain, studded with castle ruins and grazing deer, in which warrior monks milled about. Li, or rather his staff-wielding wizard character, had been slaying the enemy monks since 8 p.m., mouse-clicking on one corpse after another, each time gathering a few dozen virtual coins — and maybe a magic weapon or two — into an increasingly laden backpack."

Optioning Fiction

NY Times: Going to Court Over Fiction by a Fictitious Writer

After years of celebrity that included friendships with Winona Ryder and Madonna, articles in The New York Times and Vanity Fair, and many other gaudy trappings of early 21st century fame, JT Leroy was revealed to be the name not of a writer — in fact, not even of a person — but of the fictive alter ego of Laura Albert, a mother and otherwise obscure young novelist from Brooklyn Heights.

This intricate game of hide-and-seek with its interlocking issues of identity, fame, money and the healing power of art has now leapt from the media to what is arguably the culture’s second most obsessive arena: the courts. A film production company has sued Ms. Albert for fraud, saying that a contract signed with JT Leroy to make a feature film of “Sarah” should be null and void, for the simple reason that JT Leroy does not exist.

Copyright Protects the Nation

The Copyright Office has released a guide for teachers, Taking the Mystery Out of Copyright.

Where's the verse on the visual artists rights act? The verse about the §115 compulsory license and the verse on royalty proceedings? How do you turn the protection against anti-circumvention measures into a catchy rhyme?


Something Awful: The Art of Wikigroaning: "First, find a useful Wikipedia article that normal people might read. For example, the article called "Knight." Then, find a somehow similar article that is longer, but at the same time, useless to a very large fraction of the population. In this case, we'll go with "Jedi Knight." Open both of the links and compare the lengths of the two articles. Compare not only that, but how well concepts are explored, and the greater professionalism with which the longer article was likely created. Are you looking yet? Get a good, long look. Yeah. Yeeaaah, we know, but that is just the tip of the iceberg."

For example, compare:

  • Dept. of Homeland Security with Homestar Runner

  • Henry VIII with Jay and Silent Bob Strike Back

  • Hammurabi with Emperor Palpatine

  • Is there an inverse relationship between actual importance of a subject and the thoroughness of that's subject's Wikipedia article? Perhaps that is why Wikipedia can be so much fun to read and yet ultimately useless for real research.

    Does this occur because important subjects are already studied in-depth in books and scholarly journals, while there is no equivalent place to publish in-depth studies of pop culture?

    Do people who study important subjects not have the time to write for Wikipedia, while the people who do have the time to have their material get anonymized into the giant Wiki blob are more concerned with ephemera?

The Second Circuit Court of Appeals ruled that the Federal Communications Commission's policy prohibiting "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act for "failing to articulate a reasoned basis for its change in policy." Fox v. FCC, 06-1760 (2d Cir., Jun. 4, 2007).

"The Networks contend that the Remand Order is arbitrary and capricious because the FCC has made a 180-degree turn regarding its treatment of "fleeting expletives" without providing a reasoned explanation justifying the about-face. We agree."

The evaluation of the Commission's new policy is limited to the reasons articulated by the agency itself, particularly the "first blow" theory introduced in Pacifica. Based on the pervasiveness of the broadcast medium, a viewer or listener can not opt-out of indecent programming when encountering such programming in the spectrum, and so the audience must bear the "first blow" of encountering indecent speech. Because of this unique pervasiveness, the Commission changed its standards in order to be able to sanction fleeting and accidental indecency.

"We cannot accept [the "first blow" argument] as a reasoned basis justifying the Commission’s new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful "first blow" for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the "first blow" theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules. For example, although "there is no outright news exemption from our indecency rules," Remand Order, at ¶ 71, the Commission will apparently excuse an expletive when it occurs during a "bona fide news interview," id. at ¶ 72-73 (deferring to CBS’s "plausible characterization" of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane).

The Commission even conceded that a re-broadcast of precisely the same offending clips from the two Billboard Music Award programs for the purpose of providing background information on this case would not result in any action by the FCC, even though in those circumstances viewers would be subjected to the same "first blow"
that resulted from the original airing of this material. Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC’s policy if the expletives are "integral" to the work.

The court finds that other justifications for the new indecency standard advanced by the FCC do not pass the threshold of being arbitrary and capricious:

The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. For instance, the Commission states that even non-literal 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." Remand Order, at ¶ 23. This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any "sexual or excretory" meaning. Bono’s exclamation that his victory at the Golden Globe Awards was "really, really fucking brilliant" is a prime example of a non-literal use of the "F-Word" that has no sexual connotation. See Golden Globes (Bureau Decision), 18 F.C.C.R. 19859, at ¶ 5 ("As a threshold matter, the material aired during the ‘Golden Globe Awards’ program does not describe or depict sexual and excretory activities and organs . . . . Rather, the performer used the word ‘fucking’ as an adjective or expletive to emphasize an exclamation."), rev’d by Golden Globes, 19 F.C.C.R. 4975 (2004). Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced "sexual or excretory organs or activities." See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to "get Syria to get Hezbollah to stop doing this shit" and Vice President Cheney’s widely-reported "Fuck yourself" comment to Senator Patrick Leahy on the floor of the U.S. Senate).

To change a long-standing policy without new legislation, must an agency show empirical evidence establishing the need for such a change?

For decades broadcasters relied on the FCC’s restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent. The agency asserts the same interest in protecting children as it asserted thirty years ago, but until the Golden Globes decision, it had never banned fleeting expletives. While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change.

The court finds that the Commission's new approach towards regulating profanity is more arbitrary and capricious than the new approach towards regulating indecency.

The Commission’s new approach to profanity is supported by even less analysis, reasoned or not. The Commission sets forth no independent reasons that would justify its newly-expanded definition of "profane" speech, aside from merely stating that its prior precedent does not prevent it from setting forth a new definition, see Golden Globes, 19 F.C.C.R. 4975, at ¶ 14. To the extent the Commission believes its arguments for expanding its indecency enforcement support its new policy regarding profanity, those arguments are rejected for the reasons stated above. Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Prior to 2004, the Commission never attempted to regulate "profane" speech. In fact, the Commission took the view that a separate ban on profane speech was unconstitutional. See 122 Cong. Rec. 33359, 33359, 33364-65 (1976) (recommending Congress delete "profane" from Section 1464 "[b]ecause of the serious constitutional problems involved"); FCC, The Public and Broadcasting, 1999 WL 391297 (June 1999) ("Profanity that does not fall under one of the above two categories [indecent or obscene] is fully protected by the First Amendment and cannot be regulated."). The Commission again has not provided this court with a reasoned analysis of why it has undertaken this separate regulation of speech. Finally, the Commission provides no explanation of what harm this separate enforcement against profane speech addresses that is not already addressed by the FCC’s indecency and obscenity enforcement. Particularly considering that the scope of the FCC’s new profanity definition appears to be largely (if not completely) redundant with its indecency prohibition, this would seem to be an important question for the Commission to consider. The Remand Order, however, provides no indication that the Commission has engaged in any such analysis.

While the court does not the case based on First Amendment grounds, it does pointedly question whether this standard of indecency regulation is Constitutional. The court remands to the FCC for a reasoned explanation for the "fleeting expletive" regime and is skeptical that the Commission can provide such a reasoned explanation.

As an initial matter, we note that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment.

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. Although the Commission has declared that all variants of "fuck" and "shit" are presumptively indecent and profane, repeated use of those words in "Saving Private Ryan," for example, was neither indecent nor profane. And while multiple occurrences of expletives in "Saving Private Ryan" was not gratuitous, a single occurrence of "fucking" in the Golden Globe Awards was "shocking and gratuitous."

We can understand why the Networks argue that FCC’s "patently offensive as measured by contemporary community standards" indecency test coupled with its "artistic necessity" exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to "steer far wider of the unlawful zone."

The court goes on to discuss the Supreme Court's strikedown of internet indecency regulation in Reno v. ACLU and notes that the internet regulations which were struck down used language "substantially similar" to that in the FCC indecency test.

We also note that the FCC’s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. It appears that under the FCC’s current indecency regime, any and all uses of an expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were "integral" to the work.

New technology may make indecency regulations obsolete. The court suggests that such new technology make subject regulations of broadcast speech to review under strict scrutiny.

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 context of regulating broadcast television.

The proliferation of satellite and cable television channels—not to mention internet-based video outlets—has begun to erode the "uniqueness" of broadcast media, while at
the same time, 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 FCC is free to regulate indecency, but its regulatory powers are bounded by the Constitution. If the Playboy decision is any guide, technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.

Besides changing the standard for enforcement, the Commission essentially crafted an entirely new definition for "profane" without direction from Congress.

Most dictionaries interpret the term "profane" to denote something that pertains to the irreligious, and since 1927, courts—as well as the FCC itself—have assumed that "profane" in the broadcast context refers to sacrilege, and nothing more.

But the FCC’s definition of "profane" here, would substantially overlap with the statutory term "indecent." This overlap would be so extensive as to render the statutory term "indecent" superfluous. Because our canons of statutory construction do not permit such an interpretation, see TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001), we do not believe the FCC has proffered a reasonable construction of the term "profane." While we may owe Chevron deference to the FCC’s construction, the FCC must still demonstrate that its construction is reasonable, particularly in light of Congressional intent, the canons of statutory construction, and the historical view of the plain meaning of this term.

While the court is skeptical that broadcast indecency regulation can survive First Amendment scrutiny, it does give the Commission the chance to advance that argument, by ruling on only the administrative law grounds.

As the foregoing indicates, 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. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. 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 in this opinion.

In dissent, Judge Leval finds that the "the Commission gave a sensible, although not necessarily compelling, reason," which deserves deference.

[The FCC] made clear acknowledgment that its Golden Globes and Remand Order rulings were not consistent with its prior standard regarding lack of repetition. It announced the adoption of a new standard. And it furnished a reasoned explanation for the change. Although one can reasonably disagree with the Commission’s new position, its explanation – at least with respect to the F-Word – is not irrational, arbitrary, or capricious. The Commission thus satisfied the standards of the Administrative Procedures Act.

The dissent also discusses the various uses of the word "fuck"

The majority notes that the F-Word is often used in everyday conversation without any sexual meaning.… I agree with the majority that the word is often used without a necessary intention on the part of the speaker to refer to sex. A student who gets a disappointing grade on a test, a cook who burns the roast, or a driver who returns to his parked car to find a parking ticket on the windshield, might holler out the F-Word to express anger or disappointment. The word is also sometimes used to express delight, as with Bono’s exhilarated utterance on his receipt of his award. Some use it more as a declaration of uncompromising toughness, or of alignment on the side of vulgarity against prissy manners, without necessarily intending to evoke any sexual meaning. Some use it to intensify whatever it is they may be saying, and some sprinkle the word indiscriminately throughout their conversation with no apparent meaning whatsoever.

In a footnote, the dissent notes that the court is only reviewing cases dealing with use of the word "fuck," not cases concerning the word "shit." Were this court testing the Commissions standard for uses of the s-word on television, might the result be different?

"For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement.… When the censorship is exercised only to protect polite manners and not by reason of risk of harm, I question whether it can survive scrutiny. Because each instance of censorship at stake in this case involved the F-Word, which in the Commission’s view inherently retains a sexual reference, the question does not arise in this case."

News and Analysis Links:
David Oxenford, Broadcast Law Blog, Second Circuit Throws Out FCC Indecency Fines: "While the Court's decision was based on the FCC's failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions. The Court pointed to the inconsistent decisions of the FCC - fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS' The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS' morning show."

Brooks Boliek, The Hollywood Reporter, Esq. 2nd Cir. Tosses Key FCC Indecency Ruling: "The U.S. 2nd Circuit Court of Appeals in New York on Monday tossed out a key FCC ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to."

Frank Ahrens, The Washington Post, Broadcasters Win Appeal Of FCC's Profanity Ruling: "The ruling is a rebuke to the FCC and a victory for television networks, which in recent years have pushed back against the FCC's crackdown on indecency. In 2004, the agency reversed years of policy and effectively branded even "fleeting," or one-time, use of an expletive off-limits on broadcast television and radio, angering Hollywood, which warned of a chilling effect on programming."

Jim Puzzanghera, The LA Times, FCC efforts on indecency dealt setback: "In a victory for TV networks but a setback for efforts to shield children from coarse language, a federal court ruled Monday that broadcasters couldn't be penalized for expletives that were considered impromptu."

Stephen Labaton, The New York Times, Court Rebuffs F.C.C. on Fines for Indecency: "If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts."

Advocacy Group Statements:
Media Access Project: "Score one for the First Amendment. 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."

Parents Television Counsel: "As we predicted several months ago, a court in New York City has cleared the way for television networks to use the F-word and S-word in front of children at any time of the day. By a mere 2-1 margin, the Second Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry."

Chairman Martin and Commissioner Copps are both disappointed with the court's decision.