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FCC Defends "Fleeting Expletives" Fox Ruling

The FCC says it was correct to conclude that the "vulgar expletives" from Cher and Nicole Richie during a Fox 2002 broadcast of the Billboard Music Awards were a violation of community standards for broadcasting.

Now that the Supreme Court has upheld the FCC's decision to "expand broadcast indecency enforcement to fleeting expletives," the commission told the court Wednesday, "Fox is left with no basis for challenging the Commission's determination that the broadcasts violated longstanding federal prohibitions against broadcasting indecent material."

The commission also said indecency regulation is still necessary to "ensure that parents can construct 'a relatively safe haven for their children.' "

That came in reply comments to the U.S. Court of Appeals for the Second Circuit.

The FCC reaffirmed that it believes broadcasting to be pervasive and uniquely accessible to children, and that broadcasting remains a unique medium given its free access to spectrum. "[U]nlike wireless telephone companies and others who are required to pay often substantial sums at auction for spectrum licenses," said the commission, broadcasters get theirs for free in echange for public interest obligations.

The invocation of wireless takes on even more import given the FCC's current approaches to broadcasters about possibly turning over some of their spectrum to be auctioned of to wireless companies.

The commission also reaffirmed its the spectrum scarcity rationale for content regs.

The Second Circuit court was directed by the Supreme Court to revisit its earlier decision that the profanity finding against Fox for the stars' f-words and s-words was arbitrary and capricious. The Supreme Court decided that the FCC had, in fact, justified its fleeting expletives policy.

The FCC in its reply was addressing three questions: 1. Whether it was correct to hold that since it did not sanction Fox, it need not determine Fox's state of mind before finding the broadcast indecent; 2. whether the FCC was right in deciding that the commission's order was "sufficiently tailored to advance the government's substantial interests in protecting children from indecent material"; and whether the FCC was right to hold that the statutes and regulations it based the decision on were not unconstitutionally vague.

The FCC's conclusion? Yes on all counts.

The FCC argues that because it did not sanction Fox, and was simply giving direction on what it would find indecent in the future, "the Commission's decision was limited by its terms to the nature of the material rather than the intent of the broadcaster...[T]he Commission was not required to consider Fox's mental state."

Fox had argued that the FCC had not demonstrated that Fox had intended to violate the profanity prohibition.

The FCC argues in its brief that its indecency regime is not overbroad, since it "permits indecent programming during late night hours [10 p.m. to 6 a.m.] when adults remain able to listen or view but few children are in the audience." That, says the FCC, is sufficiently to meat the narrowly tailored test for regulations that implicate First Amendment issues.

Broadcasters have long argued that a 16-hour ban on such material is hardly narrowly tailored.

The FCC didn't have much nice to say about the V-chip.

Fox had argued that the V-chip was a less restrictive means of achieving the government interest in protecting children. The FCC countered that, for one thing, the government is not required to use the least restrictive means given broadcasters "special permission to use the limited public airwaves for free on the condition that they operate in the public interest." Second, it says the program was not rated, so the V-hip was not implicated, and even if it had been, was not an effective alternative.

The FCC also put in a plug for continued regulation of content.

"Improvements to the V-chip and other parental control tools may come about in the future," it said (the FCC last week issued a request for comments on how those goals could be achieved), "But on this record, Congress's direction that the Commission regulate indecency on broadcast television and radio - including the indecent language on the two broadcasts at issue - remains necessary to ensure that parents can construct "a relatively safe haven for their children."

The FCC has also defended its decision in the Janet Jackson case and asked that court--the Third Circuit in Philadelphia--to let it build an even stronger case against CBS. The Supreme Court has remanded that decision--that the FCC's fine was arbitrary and capricious--back to the court as well.