FCC Chairman Kevin Martin says a federal appeals court was "divorced from reality" to invalidate the FCC's profanity rulings against Fox and call into question the FCC's "fleeting expletives" policy that stemmed from the Bono "fucking brilliant" remark on NBC in 2003.
He says the decision heightens the need for cable a la carte, which he has been pushing as one way to give parents more control over content like the swearing the FCC takes issue with.
Martin repeated the language at issue several times in his lengthy statement, as if to drive home the effect of that language on sensitive ears.
"Today, the Second Circuit Court of Appeals in New York said the use of the words 'fuck' and 'shit' by Cher and Nicole Ritchie was not indecent," he said. They had aired on Fox and drawn complaints to the FCC.
"I completely disagree with the Court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that 'shit' and 'fuck' are fine to say on broadcast television during the hours when children are most likely to be in the audience. The court even says the Commission is 'divorced from reality.'
"It is the New York court, not the Commission, that is divorced from reality in concluding that the word 'fuck' does not invoke a sexual connotation."
The court had said the FCC's presumption that any use of the words invoked a sexual connotation was not defied reason, citing their use by President Bush and Vice President Cheney and saying that the FCC policy "defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any 'sexual or excretory'” meaning."
"If ever there was an appropriate time for Commission action, this was it," countered an obviously unhappy Martin. " If we can’t prohibit the use of the words 'fuck' and 'shit' during prime time [Martin's office changed the wording soon after to "restrict" from "prohibit"], Hollywood will be able to say anything they want, whenever they want." Hollywood weighed in Monday as well, saying that the FCC policy had indeed stifled creative content, and
not to proceed with plans to crack down on violent content if Congress gives it the power.
Saying the FCC had "acted in accordance with its Congressional mandate to prohibit indecency and profanity on the airwaves," the chairman said the court's decision made it even more important for Congress to consider imposing a la carte on cable, saying that could "deliver real power to American families," though arguably not in these instances, since cable is required by law to deliver broadcast channels to all its subs, who are also required to buy them before buying most other cable channels. That is, unless Congress changed that law, too.
"Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns," Martin said. "All of the potential versions of a la carte would avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families.
"Providing consumers more choice would avoid the First Amendment concerns of content regulation, while providing real options for Americans," he said.
Martin did not say what the FCC's next move was, though the court's narrow decision--it did not rule on the broader constitutionality of the FCC's indecency/profanity enforcement--did give the FCC an opportunity to better justify the Fox profanity findings and its "fleeting expletives" policy in general.
It could also seek an en banc review by the full court--a three-judge panel ruled 2-1 to overturn the indecency findings, or more unlikely, go directly to the Supreme Court.