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Federal Appeals Court Overturns FCC Indecency Decisions

June 4, 2007         

The U.S. Court of Appeals for the Second Circuit has overruled FCC decisions that sanctioned the Big 4 television networks, under the agency’s “indecency” policy, for broadcasting programming containing “fleeting expletives.”  Specifically, the appeals court, in a 2-1 decision, determined that the FCC had acted arbitrarily and capriciously by failing to provide adequate notice of its abrupt change in policy.  The court did not address whether the FCC had sufficiently articulated a definition of “indecent” programming, or whether the programming in question fell under that definition.

The court’s decision stems from a case involving NBC’s broadcast of the 2003 Golden Globe Awards, where the FCC in 2004 overruled its Enforcement Bureau and modified its own policy, by concluding that even a fleeting and isolated use of the “F-Word” could give rise to monetary forfeitures.  In a subsequent omnibus decision two years later, the FCC reaffirmed its new policy, finding that “fleeting expletives” during live programming broadcast by Fox, ABC and CBS (the 2002 and 2003 Billboard Music Awards, NYPD Blue and The Early Show, respectively) also potentially were actionable as “indecent.”  Those decisions represented a dramatic departure from the FCC’s previous policy, which provided that isolated and non-literal expletives did not run afoul of the indecency laws.  In part because the FCC recognized the radical shift in policy, no fines were issued against the broadcasters, but the broadcasters nevertheless appealed on policy grounds.

The court found that the FCC could not support the need, in 2004, to broaden the scope of indecency regulation, since the policy with regard to the treatment of fleeting expletives had been in place for nearly 30 years.  Moreover, its primary justification for expanding the sphere of “indecent” programming – to protect viewers (including children) from being exposed to such programming without warning – failed because the FCC left exceptions in place for permitting “fleeting” expletives during “bona fide” news coverage and during programs where the expletives are “integral” to the piece (i.e., a broadcast of Saving Private Ryan).  In addition, although not officially part of the legal decision, the court observed that the FCC’s indecency policy as a whole may be unconstitutionally vague and therefore in need of substantial review.  The court also raised significant questions as to whether the FCC has adequately defined the term “profane,” finding that in its current form, it may overlap so substantially with the statutory term “indecent” as to render the latter term superfluous.

Ultimately, the appeals court merely vacated the FCC’s policy treating “fleeting” expletives as “indecent,” and remanded the matter to the FCC for additional proceedings.  The FCC now has several options, including returning to the regime that existed prior to the Golden Globes decision, initiating a new rule making proceeding on “fleeting” expletives, or soliciting comment in the context of a pending rule making proceeding.

In the wake of this decision, it is possible that the U.S. Court of Appeals for the Second Circuit will take a similar view with respect to CBS’ appeal of the multimillion dollar forfeiture assessed against it for the Janet Jackson-Justin Timberlake “wardrobe malfunction” during the 2004 Super Bowl, since the allegedly “indecent” material was also “fleeting” in nature.  However, neither court will have occasion to decipher the FCC’s regulations regarding whether other, non-live, non-fleeting material is indecent.  With that in mind, licensees may wish to continue to exercise caution before broadcasting allegedly “indecent” material.

We would be pleased to respond to any questions that you may have regarding this matter.

                                           

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