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Split Decision On FCC Profanity Review

The FCC has upheld profanity findings against Fox for two Billboard Music Award broadcasts, while dismissing ones against CBS' Early Show on the grounds its fleeting expletive was not profane or indecent, and against ABC's NYPD Blue on procedural grounds.

Broadcasters and the commission will now fight it out over those remaining findings in court.

After considering comments from broadcasters and others, the FCC concluded late Monday that "comments made by Nicole Richie during the 2003 Billboard Music Awards and by Cher during the 2002 Billboard Music Awards are indecent and profane as broadcast but that the complained-of material aired on The Early Show is neither indecent nor profane. In addition, we dismiss on procedural grounds the complaints involving NYPD Blue as inadequate to trigger enforcement.

But the FCC also reasserted its presumption that the words "fuck" and "shit" are profane and indecent unless context mitigates.

It also defended its ability generally to regulate indecent broadcast content, saying the availability of blocking mechanisms or the presence of alternate media without similar restrictions--cable, the Internet--did not persuade it that its current enforcement regime was unconstitutionally vague or de facto ineffective in protecting children from indecent content.

Commissioner Jonathan Adelstein dissented in part from the decisions.

The commission said, again, that it would not levy any fines against the two Billboard broadcasts on Fox or hold the profanity findings against the stations cited.

The Commission said that it dismissed the Early Show complaint because it was "deferring to CBS' plausible characterization" of the show as a news interview program and thus the use of the word "bullshitter" by a contestant on Survivor: Vanatu was neither profane or indecent.

Adelstein took issue with what he called an "infotainment" exemption--in a segment essentially promoting an entertainment show on CBS--that did not make the FCC's indecency enforcement standards any clearer.

The NYPD Blue finding was dismissed because the complaints did not come from any viewer in the Central Time Zone market where the complaint was lodged and where the show aired at 9 p.m., but instead from a viewer in the Eastern Time Zone where it aired in the indecency safe harbor period of 10-11.

Again, Adelstein took issue, saying that if the FCC found a broadcast indecent, it was "misguided" to refrain from taking action because a complaint hadn't come from the same market. "I do not understand how we can say we are faithfully enforcing the law when we are aware of violations of the law we simply choose to ignore," he said.

"Today's decision highlights our concern about the government's inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases," said Fox spokesman Scott Grogin.  "We look forward to Court review, and the clarity we hope it will bring to this area of the law."

CBS said it was happy with the decision dismissing the complaint against its show, but qualified that: "We are pleased that the FCC has dropped its misguided indecency case against one of our news programs," the network said in a statement.  "Our pleasure is fleeting, however, in that a number of indecency cases and inquires are still pending, either in the courts or at the FCC."

CBS stations still face a multimillion-dollar fine over a broadcast of Without a Trace, and the $550,00 Janet Jackson fine it is fighting in court.
"The cloud hanging over broadcasters will remain until the FCC returns to its previous time-honored practice of more measured indecency enforcement. CBS will continue to pursue all of our legal remedies to that end," said CBS.

"I am pleased the Commission acted with appropriate deliberation in responding to the Court's limited remand," said FCC Chairman Kevin Martin of the decisions. "The Commission has always held that the use of certain words could be indecent. Consistent with that precedent, this order affirms that the use of the F and S words in the 2002 and the 2003 Billboard Music awards was indeed indecent.

"Hollywood continues to argue they should be able to say the F-word on television whenever they want. Today, the Commission again disagrees."

That statement came despite the commission's concession that broadcasters generally don't air such language, even using broadcasters own reluctance to air swearing as a justification for its own approach.The FCC pointed out that most broadcasters don't regularly air profanities, even after 10 p.m., when they could do so with relative impunity at least from regulators. It used that to justify its own conclusions that "shit" and "fuck" violated community standards.

 Of the news exemption for CBS, Martin said: "It is oftentimes difficult to distinguish between true news programming and infotainment. I found the interview with a contestant on Survivor: Vanuatu to be extremely close to that line [a nod to the Adelstein position], I believe the Commission's exercise of caution with respect to news programming was appropriate in this instance."

"Finally, the Commission dismissed complaints about episodes of NYPD Blue, solely on procedural grounds and they were not decided on the merit."

TV Watch, the broadcaster-backed online effort to promote parental control rather than government content regulation, saw the decision as emblematic of the FCC's troubles with defining indecency."Last night’s decision reinforces the lack of consensus, transparency and clarity that have plagued government efforts to play parent," said TV Watch Executive Director Jim Dyke. "While the government pondered the accuracy of its own decision against four shows, Americas parents have reviewed, blocked and watched thousands of programs the government may or may not approve of.

“Government officials should spend more time helping parents understand the information available to make smart decisions and the technology available to enforce those decisions, rather than trying to make the decisions for all of us,“ Dyke said.

The U.S. Court of Appeals for the Second Circuit in New York in early September granted the FCC's request to delay a broadcaster challenge to those four rulings for 60 days while it reconsidered them.

The court meanwhile stayed enforcement of the FCC's Golden Globes decision finding "fuck" and by extension "shit," and their variations, indecent, at least as applied to the four cases at issue. The FCC warned that broadcasters did not have a free pass to swear in prime time during the review period.

Nov. 6 by midnight was the deadline for the FCC's response to the court, and the commission used just about all of that time.

The four decisions, part of an omnibus March 15 indecency order, dealt with the 2004 airing of “bullshitter” on CBS' the Early Show, Fox's 2002 and 2003 broadcasts of The Billboard Music Awards (the words “fuck” and “shit”) and a “bullshit” in a 2003 episode of ABC's NYPD Blue (“dick” and “dickhead” in the same episode were OK with the FCC).

NBC did not have a program involved, but intervened nonetheless given the still-unresolved Bono f-word decision that signaled the beginning of the tougher profanity policy.

Adelstein also complained that the FCC had not acted on a long-standing challenge to the Bono decision.

The four profanity findings  at issue had no fine attached and the FCC promised it would not hold them against stations at renewal time, thus the FCC had decided there was no need to give stations a chance to respond. The networks, their affiliate associations, and Hearst-Argyle TV took those decisions directly to court, since the FCC had bypassed the normal appeals process in what it said was an effort to provide guidance--which broadcasters have clamored for--without adverse consequences.

In essence the FCC was saying: These are the words we believe we can fine going forward. But after the networks sued, the FCC conceded it had made a mistake by not letting them respond and asked the court to let it review the decisions after getting that input.

In a combined filing to the FCC Sept.21, CBS, Fox and NBC took aim at the entirety of the FCC's indecency enforcement regime, saying they wanted the commission to "rescind its radical new interpretation of indecency rules."

The nets asked the FCC to "reverse its radically expanded efforts to regulate through punitive forfeitures what it considers to be "indecent speech."

They argued that the FCC's previous "cautious and limited" enforcement are the "centerpiece" of its defense of having the power to regulate broadcast speech. It is that regime the Supreme Court narrowly upheld, expressly excluding "isolated" uses of "potentially offensive" language, which the FCC is now punishing.

That previous FCC policy--stemming back to the 1970's--did not take action against isolated or fleeting expletives.

The networks argued that the FCC's departure from that restraint has been "an unprecedented [and unconstitutional] intrusion into the creative and editorial process and threatens to bring about the end of truly live broadcast TV." The FCC disagreed on all counts.

The networks are now likely to use similar arguments in their briefs to the court, which will now proceed to hear arguments.

Now that the FCC has weighed in, the court will accept briefs in the broadcaster challenge by Nov. 20, Dec. 4  and Dec. 11, the same schedule as briefs in the Third Circuit Federal Appeals Court, which is hearing the CBS challenge to its Janet Jackson indecency fine.

The FCC has argued it reviewed the decisions to give broadcasters a chance to make their Case, but the move was seen by some broadcasters as an attempt to repair the FCC's case before having to defend it in federal court.

Neither case is expected to be decided before next year.