Court Rules That FCC's Policy On Expletives In Live Broadcasts Is Arbitrary

Tuesday, June 5th 2007, 7:19 am

By: News On 6

NEW YORK (AP) _ An appeals court said a new federal policy against accidentally aired profanities on TV and radio was invalid, noting that vulgar language had become so common that even President Bush has been heard using expletives.

The 2nd U.S. Circuit Court of Appeals ruled Monday in favor of a Fox Television-led challenge to the policy and returned the case to the Federal Communications Commission to let the agency try to explain how its policy was not ``arbitrary and capricious.'' The court said it doubted the FCC could.

The broadcasters had asked the appeals court last year to invalidate the FCC's conclusion that profanity-laced broadcasts on four shows were indecent, even though no fines were issued. The FCC said the ``F-word'' in any context ``inherently has a sexual connotation'' and can be subject to enforcement action.

The appeals court said some of the FCC's explanations for its new policy, reversing a more lenient policy in place for nearly three decades, were ``divorced from reality.''

The court noted that even President Bush was heard one day telling British Prime Minister Tony Blair that the United Nations needed to ``get Syria to get Hezbollah to stop doing this s---.''

FCC Chairman Kevin Martin told The Associated Press that the ruling will make it difficult to impose fines for indecency.

``Practically, this makes it difficult to go forward on a lot of the cases that are in front of us,'' he said. An appeal was being considered, he said.

The FCC found its ban was violated by a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase ``F--- 'em'' and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, ``Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple.''

In a majority opinion written by Judge Rosemary Pooler, the appeals court questioned whether the FCC's indecency test could survive First Amendment scrutiny.

``We are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague,'' she wrote.

Fox Broadcasting praised the ruling, saying ``government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment.'' It said viewers can decide appropriate viewing content for themselves, using parental control technologies.

The new policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered the phrase ``f------ brilliant.''

FCC Commissioner Michael J. Copps said the decision was disappointing to him and millions of parents but ``doesn't change the FCC's legal obligation to enforce the indecency statute.''

``So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake,'' Copps said. ``The FCC has a duty to find a way to breathe life into the laws that protect our kids.''