FCC May Appeal Indecency Ruling Favoring Networks That Air 'Fleeting Expletives'

A decision by an appeals court striking down the Federal Communications Commission's indecency policy has irked commissioners, including one who called the ruling "anti-family" and is looking at an appeal and stronger policy.

The Tuesday decision by the New York-based Second Court of Appeals favored Fox Television Stations, a sister company to Fox News, and its co-petitioners over the FCC in a ruling stating that it is unconstitutional to punish networks for curse words that guests blurt out of while appearing on live programming.

The FCC policy stated that it is indecent any time a "fleeting expletive" is uttered that doesn't actually have to do with the literal meaning at hand, have news value or is part of art and will punish networks for accidental utterances.

The FCC rule came after Cher, Nicole Ritchie and Bono all caught network bleepers off-guard when they cursed during live award shows on Fox and NBC.

The three-judge panel ruled unanimously that the FCC policy, which calls for fines, could create a "chilling effect that goes far beyond the fleeting expletives at issue here."

"By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive," the court wrote. "To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."

But Commissioner Michael J. Copps described the decision as an assault on families.

"I am shocked by such an anti-family decision coming out of the Second Circuit Court of Appeals. Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming, and no time focusing on the chilling effect today's decision will have on the ability of American parents to safeguard the interests of their children," Copps said in a statement that followed the ruling.

"I hope that this decision is appealed -- and ultimately reversed," he said.

Meanwhile, Copps said the FCC still has the authority -- articulated by the court -- to create a "constitutional and enforceable indecency policy."

"I call on this commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day," he said.