Federal Appeals Court Overrules FCC on Indecency

The U.S. Court of Appeals for the Second District overturned the Federal Communications Commission's ruling that several broadcasts, including the Billboard Music Awards in 2002 and 2003, were indecent. Specifically, it ruled that the FCC policy on "fleeting expletives" was arbitrary and randomly enforced. It sent the rule back to the commission for its consideration.

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The Federal Communications Commission is studying its options after yesterday's surprising defeat in an indecency case. It (unintelligible) about what the FCC calls fleeting expletives, accidental exclamations or a deliberate vulgarities that occur during live broadcasts. A Federal Court called the FCCs policy arbitrary and capricious.

NPR's Neda Ulaby reports.

NEDA ULABY: At the Billboard Music Awards four years ago, Paris Hilton and Nicole Richie walked on stage in a dress at TV audience of about 10 million.

(Soundbite of Billboard Music Awards)

Ms. PARIS HILTON (Actress): That's caller number. This is a live show. Watch the bad language.

Ms. NICOLE RICHIE (Actress): Okay. God.

ULABY: Richie proceeded to curse her way into Indecency Regulation history.

(Soundbite of Billboard Music Awards)

Ms. RICHIE: Have you ever tried to get caught (Bleep) out of a Prada purse? It's not so (Bleep) simple.

(Soundbite of laughter)

ULABY: The unbleep version that aired landed the FOX TV Network in hot water with the Federal Communications Commission. Along with other broadcast networks, FOX appealed to FCCs ruling that the broadcast was indecent. Yesterday, FOX won.

Mr. REED HUNDT (Former Chairman, Federal Communications Commission): The Court of Appeals has basically ruled that FOX can change the O in its name to U.

ULABY: And Reed Hundt does not find that very funny. He's a former FCC chairman, who believes adamantly that the three-judge panel of the Second Circuit Court made a mistake.

Mr. HUNDT: Very well established precedent makes crystal clear that broadcasters operate in the public interests. They use the public airwaves. They are not newspapers. They cannot have unrestrained rights to print anything they want. And a couple of judges in the Second Circuit need a little remedial education in the basic law here.

ULABY: The basic law dates back to 1975, and the commission's narrow ruling on a famous monologue about seven dirty words. Fast forward almost 30 years to live broadcast like Bono's acceptance speech at the Golden Globe and Janet Jackson's Super Bowl stunt.

Andrew Schwartzman of the Media Access Project says the political climate was ripe for a backlash. His group filed a brief on behalf of FOX.

Mr. ANDREW JAY SCHWARTZMAN (President and CEO, Media Access Project): There's a broad feeling among many members of Congress that standards in broadcasting are going down. The members of the FCC are also socially conservative and share that view.

ULABY: The FCC expanded its definition of indecency and profane language to include fleeting expletives. Penny Nance is a policy adviser to the current FCC chairman. She says commission staffers are discouraged by yesterday's ruling.

Ms. PENNY NANCE (Policy Adviser, FCC Chairman Kevin Martin): It does curtail our ability to exercise our authority, and so we will be looking at what our options are.

ULABY: Those options include appealing to the full Second Circuit or taking the case to the Supreme Court. There's a third option, the FCC was asked by the Second Circuit Court judges to better explain it's revision of the indecency rules. But the core added in its conclusion that it doubts the commission can do that adequately based on existing law.

Neda Ulaby, NPR News.

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