Kevin Martin’s anti-indecency crusade crashed in federal appeals court last week, causing the infuriated Federal Communications Commission chairman to issue a statement laced with the very same ugly expletives that the court had just made harder for his agency to restrict or ban on broadcast television.
In a 2-1 ruling, a panel of the 2nd Circuit Court of Appeals in New York said new FCC policies designed to crack down on the fleeting broadcast of such words as “shit” and “fuck” were invalid because the agency failed to justify abandonment of its historic approach, which focused on the repetitive, not the isolated, broadcast of indecent material
“I find it hard to believe that the New York court would tell American families that 'shit’ and 'fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience,” Martin said, choosing words rarely used in public by such a prominent federal official. “If we can’t [restrict] the use of the words 'fuck’ and 'shit’ during primetime, Hollywood will be able to say anything they want, whenever they want.”
PROTEST TOO MUCH?
But Martin’s indignant reaction could have been pretense, for the simple reason that the judicial invalidation of the FCC’s indecency regime as applied to TV and radio stations could strengthen his ability to get Congress to force cable to sell channels on an a la carte basis to give parents more control over questionable content entering their homes.
“He’s basically trying to tee up [a la carte] for the congressional debate that will surely follow about regulating indecency on both broadcast and cable,” said Progress & Freedom Foundation media analyst Adam Thierer, a strong critic of FCC content regulation. “This decision helps the chairman advance his regulatory cause on Capitol Hill but it doesn’t help him with regard to future court battles at all.”
After blasting the 2nd Circuit’s ruling, Martin renewed his call for a la carte legislation.
“By allowing [parents] to choose the channels that come into their homes, Congress could deliver real power to American families,” Martin said. “Providing consumers more choice would avoid the First Amendment concerns of content regulation, while providing real options for Americans.”
No legislation regarding a la carte programming has been introduced on Capitol Hill this year. Sen. John D. “Jay” Rockefeller (D-W.Va.) is expected to reintroduce a bill that would allow the FCC to regulate indecency and violence on cable for the first time. But the bill isn’t expected to include a la carte mandates, according to Rockefeller’s press secretary.
The FCC can appeal last Monday’s ruling to the full 2nd Circuit or seek Supreme Court review.
“I hope and expect that the [FCC] will move swiftly in appealing this case to the Supreme Court,” Senate Commerce Committee chairman Daniel Inouye (D-Hawaii) said.
APPEAL ON NIPPLE FLASH
The FCC might decide to await a ruling from the U.S. Court of Appeals for the 3rd Circuit on CBS’s appeal of the $550,000 fine the FCC imposed after singer Janet Jackson’s fleeting breast exposure during the 2004 Super Bowl halftime show.
FCC spokeswoman Tamara Lipper said agency officials were reviewing the options. Justice Department support for the FCC is important because it improves the chances of getting the case heard by the Supreme Court.
“I think it’s most likely that we are headed to the Supreme Court with all of this, which I welcome,” said Parents Television Council director of corporate and government affairs Dan Isett, a key Martin supporter in the indecency fight. “This is far from being over. [Broadcasters] better not start dropping 'F-bombs’ all day, every day on television.”
In an effort to protect children, the FCC has legal authority to ban indecency from 6 a.m. to 10 p.m. on radio and broadcast TV, but not on cable or satellite TV.
The agency defines indecent content as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”
For nearly 30 years, the FCC declined to punish fleeting or isolated indecency and profanity, maintaining instead that repetitive use of the “F-word” to shock and pander would invite fines and other administrative sanctions, such as possible license renewal problems.
But the agency changed its policy in 2004. It found that rock singer Bono’s use of “fucking brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe awards. NBC wasn’t fined because it didn’t have advance notice that FCC policy was changing.
The FCC later applied the Golden Globes standard to Fox’s live coverage of the 2002 and 2003 Billboard Music Awards. In 2002, singer-actress Cher used the phrase “fuck 'em’ in her acceptance remarks. A year later, Hollywood actress Nicole Richie used “cow shit” and “not so fucking simple” during an award presentation. Like NBC, Fox wasn’t fined for either incident.
“We find that the FCC’s new policy regarding 'fleeting expletives’ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry,” the court ruled. “Accordingly, we hold that the FCC’s new policy regarding 'fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act.”
In reviewing the two Billboard actions, the court said the FCC’s chief legal theory behind the crackdown on isolated indecency couldn’t survive judicial review now because it had not been consistently applied.
The FCC told the court that fleeting use of the “F-word” assaulted viewers, striking “the first blow” in a surprise attack. But the court said the “first blow” theory was implausible due to the number and nature of the exemptions the FCC did and would permit.
SEARCHING FOR REASON
For example, isolated use of the “F-word” in a news interview wouldn’t be actionable. Nor would repeated use of the “F-word” if “integral” to the work, such as the FCC’s refusal to fine ABC for airing the Oscar-winning film Saving Private Ryan during primetime. The court noted that the FCC said it wouldn’t punish a broadcaster for airing a court hearing in which the “F-word” and “S-word” were used to argue the merits of an FCC indecency enforcement action.
“The record simply does not support the position that the [FCC’s] new policy was based on its concern with the public’s mere exposure to this language on the airwaves,” the court said. “The 'first blow’ theory, therefore, fails to provide the reasoned explanation necessary to justify the FCC’s departure from established precedent.”
The court sent the rules back to the FCC for further review. The court warned that it had strong doubts the FCC could revive its “fleeting expletive” regime in a manner consistent the First Amendment.
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