Court Says It Will Issue Profanity Decision Today


According to a law clerk at the U.S. Court of Appeals for the Second Circuit in New York, the judges have now indicated that a decision will be released Tuesday on whether or not to allow the FCC to take a fresh look at four profanity findings it released in March.

Of course, the judges had indicated they would have a decision last week, but that did not pan out. Some lawyers are speculating it was taking them longer to craft a stay of the profanity decisions, which would suggest they play to grant the FCC's request for a remand.

If the court grants the request, the commission has promised to give stations a chance to respond to the findings and defend themselves--a step the FCC bypassed the first time--then decide what if any modifications to make, all within 60 days.

If the court says no, the same court will proceed to hear the broadcaster challenge to the rulings on their merits.

The FCC, joined by ABC, NBC and CBS affiliate associations, asked a New York Court to delay its scheduled hearing of a challenge to four indecency findings against fleeting expletives--like "bullshit"--that were part of the FCC’s March indecency findings.

The four had no fine attached and the FCC promised it would not hold them against stations at renewal time, thus the FCC decided there was no need to give stations a chance to respond. The networks, their affiliate associations, and Hearst-Argyle TV took those decisions directly to court, since the FCC had bypassed the normal appeals process in what it said was an effort to provide guidance without adverse consequences. ABC did not oppose the FCC request for remand, while the other networks and the Fox affiliate association wanted the court to proceed directly to a trial on the merits unless a blanket stay was granted on all fleeting profanity enforcement until the case was settled.

The FCC opposed a blanket stay, though indicated last week it could live with a narrow one that dealt with only the four decisions at issue.

The incidents in question occurred during a 2004 airing of CBS’ The Early Show, Fox’s 2002 and 2003 broadcast of The Billboard Music Awards and a 2003 episode of ABC’s NYPD Blue. NBC did not have a program involved but intervened nonetheless given the still-unresolved Bono f-word decision (an NBC Golden Globes telecast) that signaled the beginning of the tougher profanity policy.

The FCC’s initial decision in Bono was that a fleeting, adjectival f-word was not indecent, but that was later reversed by the commissioners after Congress pushed the FCC to reexamine the case.