Court rejects FCC ruling on indecency - Policy for isolated expletives ruled departure from past

Court rejects FCC ruling on indecency - Policy for isolated expletives ruled departure from past
By Jim Puzzanghera
Copyright © 2007, Chicago Tribune and Los Angeles Times
Published June 5, 2007

WASHINGTON -- A federal appeals court handed the broadcast TV networks a major victory Monday, ruling that the Federal Communications Commission's crackdown on indecency was "arbitrary and capricious."

The 2-1 decision by a panel of judges from the 2nd U.S. Circuit Court of Appeals in New York found that the FCC's decisions last year that isolated uses of expletives had violated broadcast indecency standards and "represents a significant departure" from previous commission rulings.

The FCC ruled in March 2006 that uttering certain expletives was indecent. The ruling focused on four incidents from 2002 to 2004: episodes of ABC's "NYPD Blue" and CBS' "The Early Show," along with Fox's broadcasts of the 2002 and 2003 "Billboard Music Awards."

The court did not make broader findings about the constitutionality of the indecency guidelines that the networks had requested and returned the matter to the FCC for reconsid- eration.

But the judges said they were "skeptical that the commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster."

The ruling represents a victory for broadcast executives, who have felt increasingly under siege by tougher rules on indecency from the FCC after Janet Jackson's "wardrobe malfunction" during the halftime show of the 2004 Super Bowl and a tenfold increase in fines passed last year by Congress that boosts the maximum penalty for any violation to $325,000.

"Score one for the 1st Amendment," Andrew Schwartzman, president of the Media Access Project, a Washington-based public interest law firm, told Bloomberg News. Schwartzman represented Hollywood creative professionals in the case.

Schwartzman said the decision isn't immediately operative, as the FCC weighs an appeal to the U.S. Supreme Court. Eventually, the ruling will force the agency to nullify "almost all" of the changes it announced in March 2006, he said.

"We are reviewing the opinion," FCC spokesman David Fiske told Bloomberg.

The networks, led by Fox, banded together and filed suit, charging the FCC's decisions contradicted previous rulings and violated the 1st Amendment.

"We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression," Fox said in a statement. "Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

Although expressing support for the networks' constitutional arguments, the judges decided the case on narrow grounds.

"For decades, broadcasters relied on the FCC's restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent," the court ruled. "While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change."