High Court to Rule on FCC Indecency Rule

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High Court to Rule on FCC Indecency Rule

Special Report - March 20, 2008
This fall, the U.S. Supreme Court will hear arguments in a case involving the constitutionality of a Federal Communications Commission (FCC) rule targeting profanity on the broadcast airwaves. The high court announced this week that it would consider the case, FCC v. Fox Television Stations, in which the FCC is appealing a June 2007 ruling by a lower court that voided its policy allowing fines to be levied against broadcasters that air even a single use of the f-word or similar profane terms. According to the Associated Press, this is the first major broadcast indecency case considered by the Supreme Court since 1978.

The case involves a lawsuit by Fox Television stations (as well as separate filings by NBC, ABC and CBS), challenging the constitutionality of a new FCC rule that says that “isolated or fleeting” instances of the f-word can be considered indecent and profane. The FCC issued the rule in response to the use of the f-word by performers Bono, Cher and Nicole Ritchie during broadcasts of the 2003 Golden Globe Awards on NBC and the 2002 and 2003 Billboard Music Awards on Fox (as well as expletives used on a CBS’s “The Early Show” and ABC’s “NYPD Blue”). The FCC’s Bureau Enforcement Division had previously ruled in the Golden Globe case that the broadcast was not indecent because the use of the f-word was “fleeing and isolated.” The full commission later revisited the issue and reversed the Bureau’s earlier decision, concluding, “While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.” Despite the new policy, the FCC did not issue fines against the broadcasters for the violations.

In its 2007 decision in the case, the 2nd U.S. Circuit Court of Appeals ruled against the FCC policy, stating: “We find that the FCC’s new policy regarding ‘fleeting expletives’ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy.” The lower court voided the FCC policy, and the FCC appealed the case to the U.S. Supreme Court.

“I am pleased that the U.S. Supreme Court has granted the petition for certiorari filed by the Solicitor General,” FCC Commissioner Deborah Tate said in a statement. “I hope that the Court’s decision will give broadcasters clarity regarding the use of profanity, even fleeting profanity, on the public airwaves, at times when children are most likely to be in the audience.”