A U.S. Court of Appeals has nullified a major FCC ruling in a broadcast profanity case that raised questions about whether the commission even has the right to police the airwaves for offensive language. The court’s action has major implications for broadcasters of live sporting and entertainment events where participant language cannot be controlled.
In a 2-1 decision, the court overturned an indecency ruling against the Fox TV network, saying the FCC went too far citing separate incidents in 2002 and 2003 after performers Cher and Nicole Richie used expletives during live TV broadcasts of the Billboard Music Awards. The court found that sanctioning “fleeting expletives” in live broadcasts is “arbitrary and capricious.”
“The Washington Post” reported that the ruling was a rebuke to the FCC and a victory for TV networks, which in recent years have pushed back against the FCC’s crackdown on indecency. In 2004, the FCC reversed years of policy and effectively branded even “fleeting,” or one-time, use of an expletive as off-limits on broadcast television and radio.
The court ruled that, under provisions of the U.S. Constitution, the FCC had not adequately explained why it changed its policy on the fleeting use of profanity. It ordered the commission to rewrite its regulations. “We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the [FCC] can adequately respond to the constitutional and statutory challenges raised by the networks,” the court said.
FCC lawyers were reviewing the agency’s options and may appeal the decision to the Supreme Court, FCC chairman Kevin Martin said. Such an appeal could be a test case to determine whether the federal government still has the right and responsibility to police the public airwaves, lawyers who specialize in the First Amendment told the “Post.”
The FCC’s indecency crusade began in February 2004, during the Super Bowl halftime show on CBS, after singer Janet Jackson’s right breast was briefly exposed. Then FCC chairman Michael Powell launched an indecency investigation the next day.
The FCC found that the broadcast violated the FCC’s statutes and fined 20 CBS stations $550,000. CBS has appealed the decision in the U.S. Court of Appeals for the 3rd Circuit in Philadelphia. The court has scheduled oral arguments in the case for September.