In a 3-1 decision issued on June 4, the U.S. Court of Appeals in New York struck down the FCC's fleeting expletive policy, which was adopted in 2004.
What is the fleeting expletive policy?
The fleeting expletive policy provided that any broadcast of the words “f---” or “s---”, in almost any context, would be deemed indecent.
Historically, the commission had been far more restrained, acknowledging that the occasional slip up resulting in the broadcast of an isolated expletive should not warrant censure.
In the wake of the public uproar over the Janet Jackson Super Bowl incident, however, the commission, under political pressure, reversed course and took an exceedingly hard line on indecency and the use of those two words in particular.
Why it was struck down
The court's decision invalidated the FCC's fleeting expletive policy as “arbitrary and capricious” and thus inconsistent with the Administrative Procedure Act (APA). However, the court went beyond the APA to strongly suggest that the policy would not survive First Amendment analysis. (As a matter of practice, courts generally decline to delve into weighty constitutional issues if a case can be resolved on other grounds, such as the APA violation found here.)
The court majority said the FCC's profanity policy, which also emerged in 2004, overlaps the indecency policy. Because the court found the indecency policy arbitrary and capricious, it is likely the court would find the profanity policy fatally flawed if a case involving that policy came before it.
Weighing the options
The case has been remanded to the commission for further action consistent with the court's decision, but any attempt to shore up the fleeting expletive policy is not likely to pass further court review.
Some commentators have suggested that the FCC could appeal the ruling directly to the Supreme Court. This seems unlikely because the Supreme Court normally does not, absent a split in opinions among the lower circuits, take cases decided on the basis of administrative law, as opposed to constitutional law.
In addition, the Janet Jackson case is still pending before a separate federal court of appeals in Philadelphia. If that case is decided in the FCC's favor, the commission would be in a stronger position both in terms of supporting its indecency policies and in getting the fleeting expletive case heard by the Supreme Court.
Another option for the FCC would be to request an en banc hearing by the full court of appeals in New York. This may be a more attractive option for the FCC. As noted above, the decision was made on a 2-1 vote. The dissent characterized the case as “a difference of opinion between a court and an agency.” Additional votes could sway that opinion in the FCC's favor. Moreover, in the time it would take to receive an en banc hearing, the court of appeals in Philadelphia may have decided the Janet Jackson case, thereby giving the FCC clearer direction.
Another option would be for the FCC to do what the court suggested and reformulate its indecency rules and policies. However, it would be difficult for the FCC to articulate clear standards that both protect the public and stay within constitutional bounds.
While waiting for more news on this legal front, broadcasters should note that the FCC's underlying indecency standards are still in effect, including the new, increased fine of $325,000 per utterance.
Harry C. Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC.
- October 1 is the deadline by which TV stations in Iowa and Missouri must file their biennial ownership reports with the FCC.
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