Federal Court Grills FCC in Fox TV Indecency Case

Last week, the Second Court of Appeals held hearing into whether random obscenities violate the FCC's indecency rules. Here's an informative report of what transpired:

The Federal Communications Commission faced tough questions Wednesday from a federal court considering whether the FCC overreached in a ruling on broadcast indecency standards.

In hourlong oral arguments, News Corp.’s (NWS, NWSA) Fox said the FCC acted capriciously and contrary to its longstanding policies when it found two network broadcasts indecent because of unscripted profanities uttered by celebrities.

The appeal stems from Fox’s 2002 and 2003 broadcasts of the Billboard Music Awards in which Cher and Nicole Ritchie used the curse words “shit” and “fuck” in live broadcasts. In March this year, the FCC said the incidents violated decency standards.

Fox wasn’t fined, but the network, backed by CBS Corp. (CBS), General Electric Co.’s (GE) NBC and others, wants the FCC to clarify what it says are vague rules about what networks can and cannot air. It’s the first time a hearing on indecency, a crucial business and freedom of expression issue for the networks, has been heard at the federal court of appeals.

In a hearing peppered with uses of the profanities at issue, the three-judge panel of the 2nd Circuit Court of Appeals aggressively questioned both sides.

Carter Phillips, an attorney for Fox, argued Wednesday the FCC acted arbitrarily in ruling the unscripted, fleeting use of swear words was indecent. He said the FCC historically has pursued indecency rulings only in egregious circumstances, not in incidental uses of profane words.

Context, the FCC said Wednesday, is key in determining whether uses of profanities are indecent. The same swear word in a news program or television show may not be ruled indecent if the words are considered legitimate, said Eric Miller, an attorney for the FCC.

The judges bored in on the FCC position. Noting that the appeals hearing was broadcast on C-Span, the judges quizzed Miller about whether news programs that subsequently air the oral arguments — where the offending words were sprinkled liberally throughout — would violate FCC standards.

“I think plainly not,” Miller said, explaining the FCC wouldn’t act if curse words were used for news or other legitimate purposes.

“This seems to be a scheme that depends on what you (the FCC) think instead of having objective criteria,” said Judge Rosemary Pooler, part of the appeals-court panel. “Are you just telling the networks...to make some sort of cockamamie claim and they’ll survive?”

C-Span general counsel Bruce Collins, who attended the hearing, said Miller’s defense of profanities in news broadcasts seemed to contradict the FCC’s prior stance. “When I heard that, I said, ‘well, we’re in the clear,’” Collins said.

C-Span itself has a stake in the argument.

C-Span’s radio airplay of the hearing — where Phillips in particular didn’t hesitate to use the contentious curse words — could face the ire of the FCC. The C-Span cable network, which also aired the appeals hearing live, isn’t subject to FCC decency standards.

The judges also questioned why the Fox case was being heard on appeal while an appeal of a 2004 FCC order that established the isolated use of on-air expletives as potentially indecent has been “moldering” at the FCC, as Pooler put it.

But Fox faced skepticism from the judges as well.

“I don’t think the FCC ever took the position that in order to be indecent there must be more than a fleeting expletive,” Judge Pierre Leval shot back at Phillips, who said the FCC for decades refrained from pursuing broadcasters for uses of profanities that were unintentional or used sporadically.

Click here to see the original report from MarketWatch