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Originally featured on BroadcastEngineering.com
May 4

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5/4/2009 6:00 AM  RssIcon

050409_bradblog_censored.jpgAs if broadcasters don’t already have enough to worry about, the U.S. Supreme Court ruled 5-4 supporting the FCC’s sanctions against Fox for a pair of live Billboard Music Award broadcasts containing the swear words s*** and f***. The obvious words were uttered respectively by Cher and Nicole Richie way back in 2002 and 2003.

Those broadcasters over the age of 40 may remember the famous 1978 case where the FCC charged the Pacifica Foundation with indecency because George Carlin spoke his famous “Seven Dirty Words” in a radio broadcast. The case ended up in the Supreme Court, which ruled in support of the commission, saying that the FCC could sanction the station.

Even so, for the next quarter of a century, the FCC kept its head down and largely ignored minor uses of swear words in broadcasts, especially if they occurred in a live broadcast. However, the FCC reinserted itself into the issue in 2006 by censoring Fox for the on-the-air use of curse words that occurred four years prior.

This resulted in a lawsuit charging that the FCC was reacting arbitrarily and capriciously about an event that had long-since happened. And, in fact, the FCC has no rules against the use of swear words. That is true. Part 73 has no rules against the use of swear words because that would make the commission, in effect, a censor.

However, the court’s narrow majority said that, "The FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious ... The agency’s reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word’s power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica’s context-based approach. Because the FCC's prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime."

Justice Breyer wrote the dissenting opinion, saying, "the Federal Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception." Breyer noted that one station manager had said that a ban on fleeting expletives could eliminate any live coverage of news events by small-market stations.

There is clearly a difference between George Carlin’s stage act where he used the expletives more than 100 times and that of live event where someone live says, “Oh s***” while watching a car wreck. Even so, Justices Thomas, Scalia, Roberts, Alito and Kennedy disagreed, and called broadcasters to task.

TV stations now must prevent even the accidental F-bomb from being broadcast.

Although the original ruling against Fox was made when Kevin Martin was FCC chairman, today’s acting FCC chairman Michael Copps called the recent decision "a big win for families."

So, broadcasters now know exactly how the FCC will respond if they allow even a fleeting expletive to be broadcast. Never mind that the result may be fewer live events and the trampling of the First Amendment. As Nicole Richie announced to the 2003 Billboard Music Award audience, "The simple life? Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple!"

You’re right Nicole. And dealing with the government is never f***ing simple either.

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