A Federal Court Slaps FCC Upside the Head

Most everyone either saw or remembers hearing about Janet Jackson's "wardrobe malfunction" during the half-time of the 2004 Super Bowl.

Following that incident, the Federal Communications Commission instituted a serious crackdown on what it described as "indecency." On March 15, 2006, the FCC handed down decisions to sanction three of the four broadcast networks for a variety of infractions.

In a rare display of cooperation, all four networks (ABC, CBS, FOX and NBC) fought back, filing a lawsuit in April, 2006 in appeals courts in both Washington and New York to challenge the indecency rulings.

According to CNN, the FCC had ruled against "the CBS news program 'The Early Show,' 'Billboard Music Awards' on Fox and 'N.Y.P.D. Blue' on ABC. The networks maintained that many of the remarks that were found to have violated the indecency rules were blurted out spontaneously, although the ones at issue in 'N.Y.P.D. Blue' had been scripted."

The Wall Street Journal (WSJ) reported: "As lawmakers embark on an election-year push to clean up the airwaves, federal regulators' zero-tolerance policy against indecent programming is resulting in a backlash, with broadcasters showing a new willingness to take the fight to the courthouse. That could be problematic for the Federal Communications Commission, which has interpreted the law inconsistently over the years."

The Center for Creative Voices in Media (CCVM), a nonpartisan nonprofit group, agreed with the WSJ. On May 25, 2006, the Center filed a Motion to Intervene in the U.S. Court of Appeals for the Second Circuit in New York on behalf of creative media artists in the networks' lawsuit.

The Center's press release said:

These FCC decisions are consistently inconsistent, and illustrate the significant problems with the Commission’s enforcement of its own indecency rules. They are vague, arbitrary, insufficiently attuned to the context and quality of the program, and bear no relation to “contemporary community standards,” as the Commission’s own rules require. They substitute the Commissioners’ creative and artistic choices for those made by media artists.

On June 15, 2006, the CCVM reported that Congress passed and President Bush "signed legislation increasing tenfold the “indecency” fines the FCC can impose on broadcasters." The new law increased the maximum penalty for any violation to $325,000.

This week, according to a story in the Associated Press, "A federal appeals court on Monday found that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was 'arbitrary and capricious' and might not survive First Amendment scrutiny."

The decision from the Second U.S. Circuit Court of Appeals in New York was written by Judge Rosemary Pooler in conjunction with Judge Peter Hall. The third member of the panel, Judge Pierre Leval, dissented.

The Baltimore Sun said the "ruling focused on Fox's broadcasts of the 2002 and 2003 Billboard Music Awards. The two programs included cursing by Cher in 2002 and Nicole Richie in 2003.

"Richie's statements included: 'Have you ever tried to get cows--- out of a Prada purse? It's not so f------ simple'."

The Chicago Tribune said, "The court did not make broader findings about the constitutionality of the indecency guidelines that the networks had requested and returned the matter to the FCC for reconsideration. But the judges said they were 'skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster'."

Kevin Martin, the FCC Chairman, told The Associated Press that his agency was considering an appeal of the ruling, which would make it difficult for the FCC 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."

"'Score one for the 1st Amendment,' Andrew Schwartzman, president of the Media Access Project, a Washington-based public interest law firm, told Bloomberg News. Schwartzman represented Hollywood creative professionals in the case." (Chicago Tribune)