FCC Mulls Next Move on Indecency

Now that a federal court has thrown out the Federal Communications Commission ruling against “fleeting expletives” and handed broadcasters a big victory in the battle over broadcast indecency, don’t expect broadcasters to declare open season for profanity and begin airing expletives with impunity. And with its own policy now in limbo, don’t look for the FCC to issue any profanity fines anytime soon.

Instead, look for FCC lawyers to begin consulting with Justice Department lawyers on their next move. And with the indecency ball back in the commission’s court, so to speak, broadcasters and Hollywood can only play wait-and-see.

In its decision last week, the Second Circuit Court of Appeals in New York invalidated the FCC’s ruling against Fox for airing expletives during its live broadcasts of the Billboard Music Awards in 2002 and 2003. The court also urged the commission to clarify its policy on so-called fleeting expletives and called into question its broader indecency-enforcement regime.

FCC Chairman Kevin Martin denounced the decision, saying it “may have prohibited the commission from enforcing any restrictions on language.”

So what now? The FCC has several options going forward. For one, it can accept the decision.

“It could say, Oops, you’re right, and abandon enforcement,” says Boston University professor and attorney T. Barton Carter. But that’s unlikely, he adds, given Chairman Martin’s impassioned defense of the commission’s policy.

It’s also unlikely that the FCC will take the court’s suggestion and try to clarify its justification for targeting fleeting profanities after 30 years of avoiding such hair-splitting content calls. Although a three-judge panel decided the case on narrow grounds, the opinion was skeptical that the FCC could justify the fines or its policy. It even questioned “whether the FCC’s indecency regime can survive First Amendment scrutiny.”

The commission could appeal the decision, either to the full Second Circuit court or to the Supreme Court. The FCC has not said which option it will entertain (both are said to be on the table), but both the Parents Television Council, whose complaints helped spur the language crackdown, and Senate Commerce Committee Chairman Daniel Inouye (D-Hawaii), are urging the commission to go the Supreme Court route.

If the FCC decides to take it to the Supremes, it would have to persuade the Justice Department to seek a hearing by the high court. And although the commission may well push for that option, one veteran First Amendment attorney speculates that the Justice Department’s solicitor general would likely say no.

Why? According to the lawyer, one veteran communications attorney, who has defended broadcasters on indecency issues, believes the FCC’s case is “hopeless.” That’s because the Supreme Court, if it did take the case and reverse the decision on the narrow procedural issue, would only catch it again when the case returns for an appeal on the broader constitutional questions. And, as the lawyer says, “the Supreme Court hates being a way station to another decision.”

Given that the Third Circuit has yet to hear the oral argument in CBS’ challenge to the Janet Jackson Super Bowl fine, the solicitor general may well advise the FCC to wait for that decision before looking to the High Court for help.

That leaves the appeal to the full Second Circuit court, which would probably be an easier sell to the solicitor general than seeking Supreme Court review. And if an en banc, or full-court, review were to get into the First Amendment questions, an appeal of the original panel decision would be more appealing to the High Court.

The FCC has 45 days to decide whether or not to seek an en banc review to take to the Supreme Court.

The decision may have a ripple affect on other FCC issues close at hand. While the repudiation of its indecency policy may hinder the commission’s attempt to expand its regulatory purview to include violent content, Martin used the ruling to underscore the urgency of his call for à la carte pricing of cable channels. Urging Congress last week to legislate per-channel pricing, he said that “providing consumers more choice would avoid the First Amendment concerns of content regulation.”

And what about broadcasters and the creative community? Well, broadcasters will likely continue to follow the spirit of the FCC’s policy, such as it is, and bleep out expletives as they have done more vigilantly in recent years. Said National Association of Broadcasters Executive VP Dennis Wharton last week, “NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content.”

And contrary to Martin’s prediction of the decision unleashing a foul-mouthed free-for-all now that “Hollywood will be able to say anything they want, whenever they want,” producers say the ruling will have little affect on them (see box, page 9).

Jonathan Rintels, who heads the Hollywood-backed Center for Creative Voices in Media, says Martin “completely mischaracterized” what the court said about FCC authority to restrict profanity in primetime.

“They did not say it was fine to say 'shit’ and 'fuck’ in primetime,” Rintels says. “They did not say those words were not indecent. They said, 'You, FCC, have not adequately justified your new rules. You have not done the job you’re supposed to do.’”

And while broadcasters and Hollywood producers may be fuzzy on the commission’s policy going forward, that doesn’t mean they are itching to swear on the air.

“This whole thing is still in flux, with the ball back in the FCC’s court,” says Rintels. “So people are still confused about what is decent and indecent. People are not going to get on primetime TV and, for instance, read [Chairman Martin’s] statement,” in which he invoked the offending words, as if to demonstrate the violence it inflicts upon children’s ears.

As for whether the commissioners can adequately clarify the FCC’s profanity policy, Rintels isn’t hopeful.

It’ll be tough, he says, “but they can certainly do a better job than they did.”