Recently in Indecency Category

We've been here before, but now the Supreme Court is again hearing arguments on the FCC's indecency standards, in particular the First Amendment aspects and the rule on fleeting expletives and broadcast.

Transcript: FCC v. Fox (Oral Arguments, Jan. 10, 2012)

Lyle Denniston, SCOTUSblog Many options on TV rules, "With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing, and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio. The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices' heads."

Adam Liptak, The New York Times, TV Decency Is a Puzzler for Justices, "In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still had good reason to regulate cursing and nudity on broadcast television. The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet."

Nina Totenberg, NPR: High Court Hears Arguments In FCC Indecency Case
"Inside the Supreme Court on Tuesday, Solicitor General Donald Verrilli, representing the Obama administration, said that Congress intended broadcast licenses to come with an obligation to meet certain decency standards -- standards that would provide a safe haven for family viewing."

Ruthann Robson, Constitutional Law Prof Blog FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment "Both Fox (represented by Carter G Phillips) focused on the 'fleeting expletive' sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli)."

The Second Circuit ruled this week that ABC stations should not be fined for violations of the prohibition on broadcast indecency for an episode of NYPD Blue "that depicted an adult woman’s nude buttocks for slightly less than seven seconds." The court found that the FCC regulations prohibiting indecent speech on broadcast that were unconstitutionally vague in Fox v. FCC were still too unconstitutionally vague. ABC v. FCC

"Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC levied fines for fleeting, unscripted utterances of 'fuck' and 'shit' during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found 'impermissibly vague.' According to the FCC, 'nudity itself is not per se indecent.' The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague. Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds this panel." (Citations omitted.)

David Oxenford, Broadcast Law Blog: Court of Appeals Throws Out FCC Fines in NYPD Blue Case "We have likely not heard the end of the indecency story yet. These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues. So stay tuned as these issues are sorted out."

Adam Bonin, Daily Kos: Courts: FCC can't ban partial nudity from primetime, "Another victory for the First Amendment, and a defeat for the pearl-clutchers who still insist that America will go to ruin if there's an occasional flash of nudity on network tv."

The Supreme Court released its ruling in FCC v. Fox Television Stations, et al. (07-582), in which a 5-4 majority found that the FCC acted on a rational basis in changing its policy on fleeting expletives. In an opinion penned by Justice Scalia, the Court declined to rule on the First Amendment question of whether indecency regulations are still constitutional. The majority decided the administrative law issue and sent the First Amendment issue back to the Second Circuit.

In his brief concurrence, Justice Thomas suggested that technology and today's fractured media landscape may not bode well for indecency regulation in a future case testing the constitutionality of broadcast indecency regulation.

Lyle Denniston, Scotusblog, Court partly upholds “dirty words” ban, "The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law. The Court said it did not violate that standard, but that is as far as the ruling went. The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge."

The Wall Street Journal, Court Upholds FCC 'Fleeting Expletive' Rule "The court reversed a lower court ruling that the Federal Communications Commission didn't follow proper procedures in adopting its new rule. But the ruling, by Justice Antonin Scalia, didn't address the underlying constitutional issue -- whether the First Amendment permits the FCC to punish such speech."

Los Angeles Times, Supreme Court upholds regulation of 'indecent' language on TV: "The Supreme Court said today that TV viewers should not be hit with the 'F-word' or the 'S-word' during prime-time broadcasts, upholding the government's power to impose huge fines on broadcasters for airing a single expletive."

Adam Bonin at Daily Kos, nicely summarizes the key points of the opinion and various dissenting and concurring opinions, SCOTUS Issues "F**king Brilliant" Decision

Previously:
FCC v. Fox Oral Arguments Today (11/08)
Court Grants Cert in FCC v. Fox (3/08)
Second Circuit strikes strict indecency regs (6/07)
Fox v. FCC Oral Arguments (12/06)

FCC v. Fox Oral Arguments Today

It's hard to think about things non-electoral today, but today also happens to be the oral arguments in the Supreme Court for FCC v. Fox. The Court will be reviewing the FCC "fleeting expletive" standard for broadcast indecency.

The Second Circuit Court of Appeals ruled "the FCC’s new policy sanctioning '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

Transcript of the Oral Arguments for Fox v. FCC in the Supreme Court.

ScotusWiki has links to all of the briefs filed along with a preview of the case

Dahlia Lithwick reported on the oral arguments for Slate.com, The Supreme Court's 100 percent dirt-free exploration of potty words, "Well, shit. There was supposed to be swearing. They swore like sailors when this case was argued in the 2nd Circuit. Judges and lawyers both! Those same judges swore themselves silly in the appellate opinion. Advocates swore (a lot) in the merits briefs. Promises were made. But today, in a case about how and when the FCC can regulate so-called 'fleeting utterances' of words like fuck and shit, the saltiest language comes when Solicitor General Gregory Garre, arguing for the FCC, warns that the agency had an obligation to guard against the possibility of 'Big Bird dropping the F-bomb on Sesame Street.'"

The Progress and Freedom Foundation's Adam Thierer attended the oral arguments and posted some thoughts, Supreme Court oral arguments in FCC v. Fox (General Thoughts): "Overall, however, I am concerned for the First Amendment after this morning's arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency's ongoing effort to expand content controls."

Some more previews in the press:
David Savage, Los Angeles Times, On the Supreme Court docket: bleeeeeep, "At issue is the future indecency standard for television and radio. Will these broadcasts remain under strict federal regulation because a mass audience that includes children may be watching? Or will a looser standard prevail, giving broadcasters and audiences more choice in what they see and hear?"

William Triplett, Variety, Fox v. FCC heads to Supreme Court: "A decision in the so-called fleeting expletives case of Fox v. FCC, skedded for oral arguments Tuesday morning, could sharply cut back -- maybe even eliminate -- the Federal Communications Commission's authority to police the airwaves for indecent content, experts say."

Adak Liptak, The New York Times, Ideas and Trends - Must It Always Be About Sex?: "The Oxford English Dictionary's three core entries on the word -- noun, verb and interjection -- are about six times as long as this article. That doesn't count about 30 derivations and compounds, all colorful and many recent. The nimble word, the dictionary tells us, can help express that a person is incompetent; that another is not be meddled with; that a situation has been botched; that one does not have the slightest clue; and, in a recent addition, that someone has enough money to be able to quit an unpleasant job."

George Carlin

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The New York Times reports on the passing of George Carlin, George Carlin, 71, Irreverent Standup Comedian: "Mr. Carlin was hailed for his poignant observations on the absurdities of everyday life in routines like 'Seven Words You Can Never Say on Television.'"

A broadcast of the "Seven Words" routine brought to the Supreme Court the question of whether the First Amendment allows the FCC to regulate broadcasts of speech that is merely indecent. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

David Oxenford, Broadcast Law Blog, George Carlin - Writing the Indeceny Rules the FCC Never Did: "Perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air. In fact, that is not and has never been the FCC's holding. In fact, until recently, there were no words that were specifically banned on the air - all had to be evaluated by context."

New York Times, The Feisty Station That Defended Carlin’s ‘Seven Words’ Looks Back: "In a 1978 milestone in the station’s contentious and unruly history, WBAI lost a 5-to-4 Supreme Court decision that to this day has defined the power of the government over broadcast material it calls indecent."

Deferring Indecency Rulings

The Los Angeles Times reports that the FCC is waiting to rule on its indecency complaints against broadcast licensees until after the Supreme Court rules on FCC v. Fox, Indecency cases stuck in legal limbo at FCC: "Thousands of viewer and listener complaints about programs are backed up at the Federal Communications Commission, where officials acknowledge the legal limbo has tied their hands. The FCC is reluctant to rule on these cases until the U.S. Supreme Court hands down a decision on indecency standards -- its first in three decades."

Court Grants Cert in FCC v. Fox

On Monday, the Supreme Court granted cert and agreed to review the Second Circuit's ruling in Fox v. FCC, 06-1760-ag, that the Commission's policy sanctioning "fleeting expletives" is arbitrary and capricious.

FCC v. Fox Docket.

The Government's Cert Petition asks The Court to review "whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of 'any obscene, indecent, or profane language,' 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated."

Federal Communications Commission & USA V. Fox Television Stations, Inc. Et Al., No. 07-582 (S.Ct) Reply Brief for Petitioners

Statements by Commissioners Copps and Tate.

Will this result in a decision that proscribes the scope of indecency regulation permissible by the First Amendment? Will the Court take this as an opportunity to promote speech or to promote the Commission's authority to continue to regulate speech that is disfavored by the Commissioners?

The Onion imagines a slightly different standard for defining indecency-- one with which I'm sure no one would have a problem:

FCC Okays Nudity On TV If It's Alyson Hannigan

Revisiting Indecency

After a quiet year on the indecency front, the FCC recently revisited two indecency complaints from programs that aired in 2003 and issued forfeiture orders.

In 2004, the Commission filed its Notice of Apparent Liability In re: Complaints Against Various Licensees Regarding Their Broadcast Of The Fox Television Network Program “Married By America” On April 7, 2003 (FCC 04-242, October 2004). But the NYPD Blue NAL and forfeiture orders were both released in the last month, Notice of Apparent Liability In re: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program "NYPD Blue" (FCC 08-25, January 25, 2008). In order to get this forfeiture order in before the statute of limitations applied, ABC and the ABC affiliates were given only 17, rather than the usual 30, days to respond.

The NYPD Blue forfeiture ruling finds the Commission not only attempting to find the bounds of indecent depictions of "sexual organs and excretory organs –specifically an adult woman’s buttocks," but once again defending its indecency regulations against contentions that the indecency regulations are inconsistent with the First Amendment.

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.

Fox v. FCC Oral Arguments

C-SPAN has video of the Fox Television v. FCC Oral Arguments (Second Circuit Court of Appeals, Dec. 20, 2006).

More tomorrow.

Indecency Update

Congress recently passed the Broadcast Decency Enforcement Act of 2005 (S.193) which will increase the penalties for broadcasting obscene, indecent or profane language. Licensees who broadcast indecent, profane, or obscene language outside of the 10pm-6am safe harbor will be subject to fines of up to $325,000 for each violation or each day of a continuing violation.

The Washington Post reports: The Price for On-Air Indecency Goes Up: "The bill, called the Broadcast Decency Enforcement Act, was passed unanimously by the Senate last month and cleared the House by a vote of 379-35. President Bush has vowed to sign the bill into law; it would allow the Federal Communications Commission to powerfully punish over-the-air broadcasters for airing raunchy content."

During the first quarter of 2006, the FCC received 275,131 indecency/obscenity/profanity complaints, up from the 44,109 received during the fourth quarter of 2005.

indecency_comps_2006q1.jpg

Mediaweek reports that CBS is challenging the validity of many of the filed complaints: CBS Stations: Indecency Complaints Invalid : "Virtually none of those who complained to the Federal Communications Commission about the teen drama Without A Trace actually saw the episode in question, CBS affiliates said as they asked the agency to rescind its proposed record indecency fine of $3.3 million. All of the 4,211 e-mailed complaints came from Web sites operated by the Parents Television Council and the American Family Association, the stations said in a filing on Monday."

Finally, the Colbert Report (safely on cable) takes on the indecency regulations: The Word: Great F***ing Idea.

Julie Hilden, Findlaw's Writ: Four Major Television Networks Challenge the FCC's Regulation of Indecency Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete: "In this column, I'll explain why indecency law has always been on extremely tenuous ground, from a constitutional perspective. I'll also explain why - thanks to modern technology -- the Supreme Court might finally take the networks up on their invitation to make indecency law a historical relic, in order to make way for a more robust information age."