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NEW YORK � The power of the Federal Communications Commission to punish a TV network for the antics of foul-mouthed celebrities at the Billboard Music Awards was pondered Wednesday by a skeptical panel of federal appeals judges. Judges Rosemary Pooler, Pierre Leval and Peter Hall were on television themselves as they questioned an FCC lawyer on the agency’s decision to warn the Fox Broadcasting Company about expletives uttered by Cher and Nicole Richie � a warning that seemed to imply further offenses would be punished and one that media lawyers say signaled a dangerous change in FCC policy. The oral arguments in Fox Television Stations Inc. v. FCC, 06-1760-ag and 06-2750-ag, had Judges Leval and Hall asking questions and posing hypothetical scenarios using the sanctioned expletives. Judge Pooler left the swearing to the men. The commission claimed that Cher crossed the indecency line at the 2002 awards by saying “fuck ‘em” of critics who repeatedly wrote her off as a has-been. Richie, then co-starring with the ubiquitous Paris Hilton in the reality TV show “The Simple Life,” followed in 2003 by saying “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” Carter Phillips of Sidley Austin said the FCC had entered dangerous ground because for almost 30 years, since the landmark case of FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the commission had never bothered to sanction what was termed by the judges as “fleeting expletives.” In his brief, Phillips said in the Pacifica case “when the Supreme Court initially upheld the indecency regime, it clearly recognized that its decision did ‘not speak to cases involving the isolated use of a potentially offensive word.’” Phillips told the judges Wednesday, “We are talking about a 180-degree change with respect to protected First Amendment activities.” FCC Deputy General Counsel Eric Miller said there was nothing in Pacifica or other case law that forbade the commission from punishing indecency. Miller said that “all that is at issue here is the exceedingly gratuitous use of the F-word.” Judge Pooler pounced when Miller said the indecency standard would not apply to a news program or to the showing of a movie such as “Saving Private Ryan,” where swearing is an integral part of an accurate artistic rendering of men at war.
‘We are talking about a 180-degree change with respect to protected First Amendment ac-tivities.’

CARTER PHILLIPS Sidley Austin


The standards, she said, “are not objective, they are subjective.” Rather than offering any objective criteria, “this seems to be a scheme that depends on what you think,” she said. Phillips told the court that the FCC’s change from a “restrained” policy of enforcement has left the landscape more confusing than ever. “I have no clue at this point what it is that is offensive,” he said. But Miller told the judges that the Pacifica case foreclosed challenging the FCC’s standards on the basis of vagueness. Judge Hall wanted to know why the repeated rebroadcast of the clips from the two awards shows on the nightly news to illustrate the indecency controversy might not be just as offensive as the original broadcast and whether news shows might be subject to “FCC hand-slapping.” Miller stressed that “context is everything” in the commission’s efforts to keep children from hearing obscenities on television. Answering Judge Hall, Miller said a news re-broadcast would not be indecent if “it’s not presented to pander or titillate for shock value.” Phillips said the narrow issue presented by the case was whether the FCC acted arbitrarily and capriciously by departing from precedent. But, he argued, the broader question was whether the FCC’s indecency regime violated the First Amendment. Judge Leval said he was “puzzled” by Phillips’ argument that the FCC was guilty of a “lack of reasoned analysis” for the alleged policy change. Phillips said the FCC’s concern about the need to protect children was not enough because the FCC has not been punishing the use of fleeting expletives, and no link has been established between the use of such expletives and harm to children. In other words, Judge Leval responded, “there can be no reasoned analysis of something that is inherently unreasonable.” The broader question of First Amendment violation might not be reached by the court under the doctrine that courts avoid deciding a constitutional question if it is not necessary to resolve the matter, Judge Pooler warned. Phillips agreed that the panel could resolve the case under the Administrative Procedure Act, observing the doctrine of constitutional avoidance and send the case back to the commission with instructions to support its decision more thoroughly. However, he asked, “Do I think you can consistently regulate this kind of speech? The answer is no.” When Miller was addressing the court, Judge Leval harped on his emphasis of shock value, but in a way that seemed to support Miller’s argument that context is paramount. “Would you be shocked to hear a judge on the federal bench said ‘fuck’?” Judge Leval asked whether the ground was shifting under the FCC with the ubiquitousness of cable television and the Internet. The FCC’s power to regulate network broadcasts is not affected, Miller answered, because “ Pacifica remains good law,” and the commission made “a specific factual finding” that “broadcasting is uniquely accessible to children.” “A substantial fraction” of children who have televisions in their bedrooms get only broadcast television, he said, and “parents can take steps” to protect their children from cable programming, such as by using a v-chip to block certain content. Judge Pooler had had enough. “Don’t you think a parent that allows a child to have an unmonitored TV in the bedroom is assuming the risk?” Judge Pooler said. She called the argument “disingenuous.” She added, “You want to protect these children even if the parents are lax.” “That’s the judgment Congress made,” Miller responded. Mark Hamblett is a reporter with the New York Law Journal, a Recorder affiliate.

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