FCC splits de­ci­sion on TV foul lan­guage; up­holds 2, dis­misses 2 charges

The Washington Times Weekly - - National -

(AP) — The Fed­eral Com­mu­ni­ca­tions Com­mis­sion changed its mind and dis­missed charges against two television shows it had deemed in­de­cent but up­held its find­ings against two oth­ers, ac­cord­ing to a court fil­ing.

In April, Fox Television Sta­tions Inc., CBS Broad­cast­ing Inc. and oth­ers sued the FCC and asked the ap­peals court to in­val­i­date its con­clu­sion that all four broad­casts were in­de­cent, say­ing the ac­tion was un­con­sti­tu­tional and con­trary to the law.

At is­sue is when — if ever — broad­cast­ers should be al­lowed to air foul lan­guage. Broad­cast­ers ar­gue that the ut­ter­ing of “fleet­ing, iso­lated and in some cases un­in­ten­tional” pro­fan­i­ties is not enough to ren­der a broad­cast in­de­cent.

They also ar­gued that the FCC’s en­force­ment has been in­con­sis­tent, which has chilled speech and vi­o­lates the First Amend­ment. The com­pa­nies also said the stakes have got­ten much higher since Congress passed a law in­creas­ing fines by a fac­tor of 10.

The case is based on a 76-page om­nibus or­der the FCC re­leased in March 2006 that set­tled “hun­dreds of thou­sands of com­plaints” re­gard­ing broad­cast in­de­cency.

In the or­der, the FCC pro­posed fines against sev­eral shows but did not is­sue fines against the four that are the sub­ject of the ap­peals court case. FCC lawyers said that while those shows were in­de­cent, they should not be fined be­cause they aired be­fore a pol­icy change in en­force­ment of broad­cast in­de­cency rules.

The two shows the FCC still con­sid­ers in­de­cent were:

Dec. 9, 2002, broad­cast of the Bill­board Mu­sic Awards on Fox, in which singer Cher ut­tered an ob­scene phrase.

A Dec. 10, 2003, Bill­board awards show in which re­al­ity show star Ni­cole Richie ut­tered a pair of of­fen­sive words.

“Hol­ly­wood con­tin­ues to ar­gue they should be able to say the fword on television when­ever they want. To­day, the com­mis­sion again dis­agrees,” FCC Chair­man Kevin J. Martin said.

The agency changed course on two other cases, rul­ing they were not in­de­cent:

episodes of the ABC po­lice drama “NYPD Blue,” that aired be­tween Jan. 14 and May 6, 2003, in which char­ac­ters used of­fen­sive lan­guage. Mr. Martin said those com­plaints were dis­missed “solely on pro­ce­dural grounds and they were not de­cided on the mer­its.”

Dec. 13, 2004, CBS broad­cast of the “Early Show” in which a “Sur­vivor” cast de­scribed a fel­low con­tes­tant with an ep­i­thet. “I be­lieve the com­mis­sion’s ex­er­cise of cau­tion with re­spect to news pro­gram­ming was ap­pro­pri­ate in this in­stance,” Mr. Martin said.

Fox spokesman Scott Gro­gin said: “To­day’s de­ci­sion high­lights our con­cern about the gov­ern­ment’s in­abil­ity to is­sue con­sis­tent, rea­soned de­ci­sions in highly sen­si­tive First Amend­ment cases. We look for­ward to court re­view and the clar­ity we hope it will bring to this area of the law.”

At the time of the or­der, the FCC said it was at­tempt­ing to give broad­cast­ers guid­ance on what was per­mis­si­ble, and promised that the find­ings would not af­fect their li­censes. The broad­cast­ers were not ap­peased and filed suit.

With the FCC’s re­sponse, the court will con­sider the two re­main­ing cases un­der an ex­pe­dited sched­ule. The first round of briefs are ex­pected in two weeks, and oral ar­gu­ments could be­gin in Jan­uary.

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