The 2nd U.S. Circuit Court of Appeals in New York, in a recent 2-to-1 decision, ruled in favor of a Fox Television-led challenge of a new Federal Communications Commission policy penalizing accidentally aired expletives. The FCC issued its indecency finding against Fox over two separate live swearing incidents.
The court questioned the basis of a 2004 FCC policy revision targeting "fleeting expletives." It did not outlaw the policy outright, and returned the case to the FCC. The FCC did not issue any penalties against Fox because both incidents predated the 2004 rule change.
The majority opinion was written by Judge Rosemary Pooler.
"We find the FCC's new policy sanctioning ‘fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy. 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. We are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.
It appears that under the FCC's current indecency regime, any and all uses of an expletive is presumptively indecent and profane, with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were ‘integral' to the work.
In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials," Pooler wrote.
The dissenting opinion was issued by Judge Pierre Leval.
"The majority's view presupposes that the future would repeat the past. It argues that because the networks were not flooded with discrete fleeting expletives when fleeting expletives had a free pass, they would not be flooded in the future. This fails to take account of two facts.
First, the words proscribed by the Commission's decency standards are much more common in daily discourse today than they were 30 years ago. Second, the regulated networks compete for audience with the unregulated cable channels, which increasingly make liberal use of their freedom to fill programming with such expletives. The media press regularly reports how difficult it is for networks to compete with cable for that reason. It seems to me the agency has good reason to expect that a marked increase would occur if the old policy were continued," Leval wrote.
FCC Chairman, Kevin Martin, expressed outrage over the court's decision.
"I completely disagree with the court's ruling and am disappointed for American families. These words were used in prime time, when children were watching. Ironically, the court implies that the existence of blocking technologies is one reason the FCC shouldn't be so concerned. But even a vigilant parent using current blocking technologies such as the V-Chip couldn't have avoided this language, because they rely on the program's rating, and in this case the programs were rated appropriate for family viewing," Martin said.
Martin's sentiments were echoed by FCC Commissioner, Michael Copps.
"This decision is disappointing to me and to millions of parents and concerned citizens across the land. But it doesn't change the FCC's legal obligation to enforce the indecency statute.
So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake.
The FCC has a duty to find a way to breathe life into the laws that protect our kids. Enforcing the laws against indecency, profanity and obscenity must remain a Commission priority–America's families and children expect and deserve no less," Copps stated. Some conservative and TV watchdog groups denounced the appellate court's ruling.
Matt Barber, Concerned Women for America's Policy Director for Cultural Issues, said, "With this ruling the Second Circuit has essentially declared a profanity free-for-all on primetime network television, a time when children are most likely to be viewing. The Fox Television Network has said, and the court apparently agreed, that the FCC regulation ‘serves no purpose other than to chill artistic expression in violation of the First Amendment.' So now it ‘chills artistic expression' to place even the most reasonable and limited of protective barriers between a four-year-old and [an expletive] on daytime television? Just when you think we can't sink any lower as a society, we do," Barber said.
The Parents Television Council filed indecency complaints over the two Fox Television incidents, and submitted a friend-of-the-court brief in support of the FCC.
PTC President, Tim Winter, said, "By a mere 2-to-1 margin, the Second Circuit Court of Appeals, has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry.
The industry was able to forum-shop and find two federal judges in New York City to impose their will on the nation. The court's decision runs contrary to nearly 80 years of jurisprudence about the publicly-owned airwaves, not to mention the overwhelming sense of the nation. Community decency standards should not be decided by two judges in New York," Winter said.
Morality in Media President, Robert Peters, said that the ruling could have been worse.
"Thankfully, the two judges who were in the majority, and who were clearly in sympathy with all of the TV networks' arguments in the case, did not take the further step of invalidating the broadcast indecency law altogether. The court's decision also provides the FCC with another opportunity to justify its new policy.
But it is clear that the FCC could do a better job of justifying its decision by providing evidence that vulgarity has increased dramatically on broadcast TV (particularly during the primetime hours), that the majority of adult Americans are offended by vulgarity on TV, that children don't need to hear ‘four-letter words' repeated over and over again in order to learn a ‘new word' and repeat it, and of the harms associated with cursing and swearing, especially to children," Peters said.
Fox, in a statement, said, "We are very pleased with the court's decision. 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."
Likewise, National Association of Broadcasters Executive Vice President, Dennis Wharton, stated, "This is a timely opinion, as public policymakers weigh the merits of further program content restrictions. NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content."
In addition, Media Access Project President and CEO, Andrew Jay, said, "Score one for the First Amendment. It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of government can rise above demagogy." Last year, Congress approved a request by the FCC to increase the maximum fines it can levy for indecency by more than tenfold, from $32,000 to $325,000 per incident.
In the wake of the court's decision, the bipartisan, Family Choice Act of 2007, was introduced in the U.S. House. The measure would force cable and satellite companies to offer consumer child-friendly options that omit mature channels. Some of the options include refunds to people for unwanted tier channels, creating a package of child-friendly programs and restricting indecent material from 6 a.m. until 10 p.m.
Dan Isett, director of corporate and government affairs at the Parents Television Council, said, the status quo on cable TV is not working for children and families. "The cable television industry is the only one that forces its own customers to pay for an enormous amount of product that it doesn't want, doesn't watch, and will often find offensive, just to get access to the types of things that customers do want to see.
Why should people be forced to subsidize truly graphic and explicit and violent content on expanded basic cable just to be able to get the Disney Channel, and maybe watch a football game on Saturday afternoon, for example,?" Isett questioned.
In the Senate, Jay Rockefeller (D-W.Va) is expected to reintroduce a bill that would allow the FCC to regulate indecency and violence on cable for the first time.
However, the measure is not expected to include a la carte mandates like the House legislation.
"Overnight, the court called into question nearly 30 years of FCC precedents and regulations aimed at protecting children and families from obscene language and indecent programming during family hours.
If the Commission can't enforce its own longstanding rules, I fear that parents could be held hostage to those who flagrantly disregard the spirit of the family hour and the intent of the TV rating system.
The ruling defies common sense. The court had said that it was the FCC's defense of its profanity policy vis a vis fleeting profanities that defied common sense. We must be doing more, not less, to give the FCC and parents the resources they need to protect their children from indecent and violent television," Rockefeller said.
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