The Second Circuit Court of Appeals ruled 2-1 in favor of broadcasters on Monday when it vacated the FCC's fines against Fox for airing a "fleeting expletive."
The majority opinion of the New York court stated, "We find that the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy."
The expletives involved in the case occurred during separate telecasts of the Billboard Music Awards. Cher used the four-letter profanity during the 2002 telecast; Nicole Richie in 2003. Fox was not fined, but censured on the grounds that the utterances were "indecent and/or profane."
FCC Chairman Kevin Martin responded in a statement liberally sprinkled with the very vocabulary to which he so strongly objected.
"Today, the Second Circuit Court of Appeals in New York said the use of the words "f**k" and "sh*t" by Cher and Nicole Ritchie was not indecent.
"I completely disagree with the Court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that 'sh*t" and "f**k" are fine to say on broadcast television during the hours when children are most likely to be in the audience.
"The court even says the commission is 'divorced from reality.' It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f**k" does not invoke a sexual connotation."
Martin said the court's assertion that content-blocking technologies were an adequate protection was invalid because no one could have anticipated spontaneous cursing from pop culture figures during primetime.
"If ever there was an appropriate time for commission action, this was it," he said. "If we can't prohibit the use of the words "f**k" and "sh*t" during primetime, Hollywood will be able to say anything they want, whenever they want."
Martin used the Court's decision to reiterate his support for a la carte channel pricing on cable.
"Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns," he said. "All of the potential versions of a la carte would avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families."
The broadcast lobby welcomed the ruling.
"This is a timely opinion as public policymakers weigh the merits of further program content restrictions," said NAB Executive Vice President Dennis Wharton. "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content."
A court challenge to a $550,000 fine against CBS over the 2004 Super Bowl breast-baring incident remain under examination by the Third Circuit Court of Appeals in Philadelphia.
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