WASHINGTON – The Federal Communications Commission changed its mind and dismissed charges against two television shows it had deemed indecent but upheld its findings against two others, according to a court filing submitted late Monday night.
In April, Fox Television Stations Inc., CBS Broadcasting Inc. and others sued the FCC and asked the appeals court to invalidate its conclusion that all four broadcasts were indecent, saying the action was unconstitutional and contrary to the law.
At issue is when — if ever — broadcasters should be allowed to air foul language. Broadcasters argue that the uttering of "fleeting, isolated and in some cases unintentional" profanities is not enough to render a broadcast indecent.
They also argued that the FCC's enforcement has been inconsistent, which has chilled speech and violates the First Amendment. The companies also said the stakes have gotten much higher since Congress passed a law increasing fines by a factor of 10.
The case is based on a 76-page omnibus order released by the FCC in March 2006 that settled "hundreds of thousands of complaints" regarding broadcast indecency.
In the order, the FCC proposed fines against several shows but did not issue fines against the four that are the subject of the appeals court case. FCC lawyers said that while those shows were indecent, they should not be fined because they aired before a policy change in enforcement of broadcast indecency rules.
The two shows the FCC still considers indecent were:
_A Dec. 9, 2002, broadcast of the Billboard Music Awards on Fox, in which singer Cher used the phrase, "F--- 'em."
_A Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."
FCC Chairman Kevin J. Martin said Monday: "Hollywood continues to argue they should be able to say the F-word on television whenever they want. Today, the commission again disagrees."
The agency changed course on two other cases, ruling they were not indecent:
_Several episodes of the ABC police drama "NYPD Blue," that aired between Jan. 14 and May 6, 2003, in which characters used the words "d---," "d---head" and "bulls---." Martin said those complaints were dismissed "solely on procedural grounds and they were not decided on the merits."
_A Dec. 13, 2004, broadcast of CBS' "Early Show" in which a "Survivor" cast described a fellow contestant as a "bulls------." "I believe the commission's exercise of caution with respect to news programming was appropriate in this instance," Martin said.
Fox spokesman Scott Grogin said: "Today's decision highlights our concern about the government's inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases. We look forward to court review, and the clarity we hope it will bring to this area of the law."
At the time of the order, the FCC said it was attempting to give broadcasters guidance on what was permissible, and promised that the findings would not affect their licenses. The broadcasters were not appeased and filed suit.
The current dispute originated with a controversial October 2003 FCC decision the agency made regarding the January 2003 broadcast of the Golden Globes awards show by NBC. During the show, U2 lead singer Bono uttered the phrase "f------ brilliant."
The FCC received a flood of complaints from the Parents Television Council and others, but decided the episode was not indecent.
The FCC defines indecent speech as "language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium." The content also has to air between the hours of 6 a.m. and 10 p.m., a time frame when children are likely to be listening.
In the Bono case, the agency's enforcement bureau said because the singer was not describing "sexual or excretory organs or activities" but was using the word as an "adjective or expletive to emphasize an exclamation" that it was not indecent.
They commission also said that in the past, it had found that "fleeting and isolated remarks of this nature do not warrant Commission action."
But in March 2004, the agency reversed course, saying the "F-word" in any context "inherently has a sexual connotation."
NBC, joined by the other major broadcasters, asked the FCC to reconsider the Golden Globes ruling, but the agency has not acted on the petition.
With the FCC's response, the court will consider the two remaining cases under an expedited schedule. The first round of briefs are due in two weeks, and oral arguments could begin as soon as January.