'Fleeting' Profanities: OK for Now?

Court stays decision pending review; FCC warns against saying too much

The FCC is not likely to issue any indecency fines or findings for “fleeting profanities” for the next six months, but broadcasters have no clearer guidance on what they can and can't say. That's after a federal court last week granted its request to take a second look at four profanity rulings it made last March. The court also stayed enforcement of those decisions, which carry no penalty, until the case can be resolved.

That probably won't be until spring, says one lawyer familiar with the Second Circuit Court of Appeals. The case could be decided by February if the court hustles, he says. Oral argument can start no sooner than Dec. 11 on the merits of the case, and that argument could hinge on what the FCC decides to do.

The commission could provide better explanations of its decision, or modify or rescind any or all of it. The FCC read the stay as a narrow one, applying only to the four decisions at issue, and tried to send the message that broadcasters shouldn't take it as an opportunity to swear on-air with impunity.

The commission said it was pleased with the decision. “It ensures that the commission will have the opportunity to hear all of the broadcasters' arguments first. The Court stayed only a limited portion of the order which the commission had requested to reconsider.”

Then came the warning: “Hollywood argues that they should be able to say the f-word on television whenever they want. The commission continues to believe they are wrong and that there should be some limits on what can be shown on television.”

But critics say the FCC warning was more like fake security cameras that homeowners hope discourage would-be trespassers. As a practical matter, the FCC more than likely won't be issuing any fleeting profanity decisions until the case is decided.

The four decisions at issue dealt with the 2004 airing of “bullshitter” on CBS' The Early Show, Fox's 2002 and 2003 broadcasts of The Billboard Music Awards (the words “fuck” and “shit”) and a “bullshit” in a 2003 episode of ABC's NYPD Blue (“dick” and “dickhead” in the same episode were OK with the FCC). NBC did not have a program involved, but intervened nonetheless given the still-unresolved Bono f-word decision that signaled the beginning of the tougher profanity policy.

It was the court's invocation of the Golden Globes case—rock singer Bono's expletive that started all this—that had broadcasters celebrating the stay as a signal of the strength of their challenge to the “fleeting profanity” policy when the case finally does come to court.

To issue a stay, the court has to be convinced broadcasters have a likelihood of winning the case, and it has to find that not staying enforcement of the policy poses potential irreparable harm. The FCC was adamant that the stay was narrow, pointing out that the court said it took the action after both parties said they would accept a stay.

But some broadcasters and their lawyers saw it quite differently. One industry source saw the court's invocation of the Golden Globes decision as a clear sign that it was broadening the stay beyond those four findings to the whole of fleeting profanity enforcement, which was a reversal by the Powell FCC of previous FCC policy.

“I don't see how it can be anything other than a general stay,” says first amendment attorney John Crigler of Garvey Schubert Barer, something the FCC was trying to avoid.

Media Access Project President Andrew J. Schwartzman, whose group represents one of the parties in the case, says it “cuts the heart out of the FCC's crusade against potty-mouth speech.”

He says the case doesn't address the FCC's fine of CBS's Without a Trace, Janet Jackson or others for nudity or suggestive sex. Still, Schwartzman does think that CBS affiliates have “all the ammunition [they need] to carry the 9/11 program [a documentary by French brothers Jules and Gedeon Naudet] as scheduled.” A number of affiliates, including those of Sinclair, are going to preempt or delay the documentary because of its unedited profanities by first responders in the maelstrom of 9/11.

Sinclair, for one, does not plan to change that policy. “I don't think the decision is so broad that it removes the risk of being fined for the 9/11 documentary,” says Sinclair VP and General Counsel Barry Faber, who told B&C that adding that the company's two CBS affiliates will delay its airing past 10 p.m. as scheduled.

Neither does Pappas Telecasting, which announced last week it was pulling the show from its CBS affiliates over profanity concerns, irrespective of the FCC decision.

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