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Loose lips might no longer sink broadcasters. On June 4, the U.S. Court of Appeals for the 2nd Circuit told the Federal Communications Commission that the agency’s policies on “fleeting expletives” was impermissible. This policy, announced in the 2004 “Golden Globes” ruling and reiterated in November 2006, was meant to stop vulgar comments that viewers had complained of, beginning with comments at the live Golden Globes broadcast of 2002. Of course, the 2nd Circuit ruling in Fox Television Stations v. FCC is narrow, and it disposes of the issues on statutory rather than constitutional grounds. And it deals only with objectionable words uttered “fleetingly,” that is — once. Nevertheless, the 2nd Circuit got it right in ruling against the FCC. The agency’s policy was confusing and vague. But the real challenge for both the FCC and Congress may be what comes next. BRILLIANT BONO NBC (the sponsor of the Golden Globes broadcast), Fox (the Billboard Music Awards sponsor), and other licensees brought the case after the FCC handed down a final adjudication against the broadcasters in November 2006. That ruling came after a succession of incidents in which celebrities uttered what the FCC determined to be inappropriate (either profane or indecent) language in the excitement of the moment or in apparently wandering off script. What set off the agency’s path toward more aggressive enforcement against “fleeting expletives” — the F-word, the S-word, and other words that one is not supposed to say on the regulated airwaves — was an incident at the 2003 Golden Globes broadcast. Apparently overcome with emotion on receiving an award for U2′s song “The Hands That Built America,” front man Bono said, “This is really, really fucking brilliant!” During its initial investigation of the Bono outburst, brought on by complaints to the agency, the FCC Enforcement Bureau determined that Bono’s comments did not refer to either “sexual and excretory activities and organs” or “an insult.” Thus they did not fall within then existing guidelines on indecent or profane speech. Upon review, the FCC commissioners reversed the Enforcement Bureau and concluded that Bono’s use of the F-word was profane under 18 U.S.C. �1464. In doing so, the FCC explicitly departed from its previous decisions and prior policy, which the Supreme Court had upheld in FCC v. Pacifica Foundation (1978). The final conclusion was that “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” The FCC declined to impose fines on NBC because it had not given prior notice of the new direction. But the government’s intention was clear — even “fleeting” use of indecent language was not permissible. The warning from the FCC was sobering: Broadcasters are on “clear notice” that enforcement actions could come from “any broadcast of the �F-word’ or a variation thereof” in similar situations. The agency even suggested that serious multiple violations of the indecency rule could cost broadcasters their licenses. The agency’s recommended solution to the Bono problem was “a delay/bleeping system” for live broadcasts. The problem with the FCC’s suggestion, of course, was that a bleeping system itself did not put broadcasters on notice as to what specific words or context would result in fines or forfeitures (and thus would have to be bleeped). LOSING �PRIVATE RYAN’ Broadcasters thus thought it might be easier to avoid potential problems by not broadcasting any material at risk — the classic chilling effect. In November 2004, a significant number of ABC affiliates decided not to broadcast the critically acclaimed film “Saving Private Ryan” rather than risk indecency fines. The film contains language that those affiliates surmised might generate FCC sanctions because ABC planned to air it during the family viewing hour. Even though ABC offered to pay any fines, some affiliates demurred. ABC and a number of affiliates showed the film anyway. Predictably, the American Family Association filed a complaint with the FCC over the profanity. The agency found that the broadcast did not violate the new standards in spite of its numerous uses of expletives. This result further muddied the waters. What were the reasons for the FCC’s decision? The introduction by Sen. John McCain (R-Ariz.), an acknowledged war hero? The advisories run by the network on air and on its Web site, even though the film was broadcast during the family hour? Was context all-important, or at least more important than for the Golden Globes? Now broadcasters fretted that they could not determine under what circumstances expletives, fleeting or not, were forbidden. Complaints about other incidents from some lobbying groups, including the Parents’ Television Council and the American Family Association, also deluged the FCC. In December 2003, during the Billboard Music Awards, presenter Nicole Ritchie deviated from her script and used at least one expletive. That deviation landed broadcaster Fox, which was carrying the event live, in trouble with the FCC for the second time in two years. (Singer Cher had used the F-word the year before at the same event.) To deal with questions about the Billboard Awards broadcasts, a particular episode of the CBS “Early Show” on which an interviewee guest had used the word “bullshitter,” and episodes of the television series “NYPD Blue,” during which the word “bullshit” was repeatedly used, the FCC issued an omnibus order on March 15, 2006. The order found that although all the shows had “apparently violated the statutory and regulatory prohibitions against airing indecent and profane material,” the FCC decided not to initiate forfeiture proceedings against the licensees or sanction them in other ways, because the licensees lacked notice of the change in FCC policy. When the licensees requested judicial review, the FCC requested a remand from the 2nd Circuit to reconsider the ruling. The FCC then issued a second omnibus order on Nov. 6, 2006, which ruled that the objectionable language on the “Early Show” said in the context of a news program was exempt. It also said that the complaints about “NYPD Blue” could be dismissed on a technicality. But the Billboard Music Awards show decisions remained in place. Because this FCC ruling was final, the broadcasters appealed. A REASONED BASIS The 2nd Circuit (with Judge Pierre Leval dissenting) rejected the FCC’s new indecency policy. In this June decision, the court pointed out that although an agency may change its policy, “it must provide a reasoned basis for that change.” The court noted that the FCC’s change in direction seemed particularly odd since it seemed willing to hold broadcasters to account in awards shows but not in news broadcasts. Even more harshly, the court noted that the FCC decision was ” devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation.” The judges said such evidence would seem particularly relevant now, when children are more likely to hear this language from other sources than they were in the 1970s, when the agency first began sanctioning indecency. Although it did not reach the question of constitutionality, the court questioned “whether the FCC’s indecency test can survive First Amendment scrutiny” considering the inconsistent way in which the agency chose to apply the test to “Saving Private Ryan” and to the Golden Globes broadcast. The court also noted that the agency’s interpretation of “profane” might need tweaking. It pointed out that most dictionaries use the term to mean “something that pertains to the irreligious,” not something that substantially overlaps with the statutory term “indecent.” The court suggested to the agency that “merely proffering a reasoned analysis for its new approach to indecency and profanity” would not be enough to salvage the FCC’s new approach. But it vacated and remanded the FCC’s order, giving the agency time to try to do so. CONFUSION AND FEAR In my opinion, the very reaction of broadcasters in trying to comply with the indecency rules, such as the confusion over showing “Saving Private Ryan,” indicates that the 2nd Circuit ruling is correct. The FCC’s policy is not simply confusing and vague, but contradictory in its application. Why should even a highly acclaimed film laced with expletives be exempt from the policy, but Bono’s outburst be subject to sanction? Would his comments be exempt if reported later as part of a news segment? Apparently. Under these circumstances, one might indeed expect broadcasters to react as some of them have, with trepidation or outright fear. The FCC can appeal the 2nd Circuit’s ruling to the Supreme Court, which at least one member of Congress has urged it to do, or ask for a rehearing. It also has the option of revising its policy, as the 2nd Circuit panel has informed it that it should. That change may not be easy. On June 4, FCC Chairman Kevin Martin angrily responded to the 2nd Circuit’s decision by demonstrating uses of the F-word and the S-word, which licensees generally did not broadcast. Commissioner Michael Copps’ calmer but essentially equivalent response the same day suggests that at least two members of the FCC believe that the present FCC policy is both legitimate and necessary unless Congress does not act. In Copps’ view, the FCC policy is necessary unless Congress steps in and (1) bans indecent language on the commercial airwaves completely, (2) moves to extend the FCC’s power over the rest of the airwaves, or (3) enforces a la carte pricing for cable channels at reasonable prices so that viewers can purchase only the channels that they want — presumably those “family friendly” channels free of indecency and perhaps violence. If decency cannot be enforced by law, the thinking goes, perhaps it can be enforced by choice. The first two of these options seem dubious. With V-chips and other technology in place that allow users to control objectionable content, more government regulation of speech would be more, not less, difficult to justify. With regard to a la carte cable, there also is no easy fix. Research seems to indicate that many consumers do not understand the pricing that goes along with such tiered offers. They do, however, object to the rapid increases in cable costs, which have gone up considerably over the past 10 years, particularly in areas with no significant competition for cable companies. Rep. Daniel Lipinski (D-Ill.) has introduced the Family and Consumer Choice Act, with backing from FCC Chairman Martin among others. This bill would require cable companies to offer their channels a la carte, which may offer a solution for indecency. Yet it raises some serious questions about costs. If cable companies, which typically do not face significant competition for their services, must offer channels a la carte, they may respond by increasing the price for offering these individual channels. If so, the results may please neither Congress nor consumers. Under the current regulatory system, broadcasters bear the cost of preventing indecency. A change could mean that this cost is essentially shifted to consumers through their cable bills. Some might cheerfully pay more to avoid indecency, of course, but a great many others will not be thrilled with this result. CBS has appealed its record $550,000 fine for the Janet Jackson 2004 Super Bowl incident to the U.S. Court of Appeals for the 3rd Circuit. Even if that court agrees with the 2nd Circuit that the FCC’s indecency rationale is unjustified, we may not be seeing the end of efforts to punish such speech. So the 2nd Circuit’s decision may not even be the beginning of the end. But, to quote Winston Churchill, it may be the end of the beginning.
Christine A. Corcos is a law professor at Louisiana State University in Baton Rouge. She runs the Media Law Prof Blog.

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