Court calls FCC's indecency crackdown 'arbitrary'
By Jim Puzzanghera
Times Staff Writer
12:02 PM PDT, June 4, 2007
WASHINGTON — A federal court handed the broadcast TV networks a major victory today, ruling that the Federal Communications Commission's crackdown on indecency was "arbitrary and capricious."
The 2-1 decision by a panel of judges from the U.S. 2nd Circuit Court of Appeals in New York found that the FCC's decisions last year that isolated uses of expletives had violated broadcast indecency standards "represents a significant departure" from previous commission rulings.
The FCC ruled in March 2006 that uttering certain expletives, including the "F-word," even in isolated incidents, was indecent. The ruling focused on four incidents from 2002 to 2004 -- episodes of ABC's "NYPD Blue" and CBS' "The Early Show," along with Fox's broadcasts of the 2002 and 2003 "Billboard Music Awards."
On the 2002 Billboard show, Cher used the "F-word" after accepting an award. And the following year, Nicole Richie used the "F-word" and another expletive when presenting an award. Both were unscripted.
The court did not make broader findings about the constitutionality of the indecency guidelines that the networks had requested, and sent the matter back to the FCC for reconsideration. But the judges said they were "skeptical that the commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass Constitutional muster." The decision could be headed for an appeal to the Supreme Court.
But the ruling represents a victory for broadcast executives, who have felt increasingly under siege by tougher rules on indecency from the FCC after Janet Jackson's "wardrobe malfunction" during the halftime show of the 2004 Super Bowl and a ten-fold increase in fines passed last year by Congress that boosts the maximum penalty for any violation to $325,000.
The networks, led by Fox Television Stations, banded together and filed suit, charging the FCC's decisions contradicted previous rulings and violated the 1st Amendment. Although expressing support for the networks' constitutional arguments, the judges decided the case on narrow grounds, striking down the FCC's March 2006 decisions and telling the agency to reconsider based on the court's ruling.
"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 court ruled. "While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change."
