Judges toss FCC rule on cursing

WASHINGTON — WASHINGTON -- In a victory for TV networks but a setback for efforts to shield children from coarse language, a federal appeals court ruled yesterday that broadcasters cannot be penalized for expletives that are considered impromptu.

The three-judge panel in New York repudiated the Federal Communications Commission's recent crackdown on broadcast indecency, calling its efforts "arbitrary and capricious."


TV networks long have complained that enforcement of the rules is inconsistent and unpredictable. Although the 2-1 decision sent the issue back to the FCC for rethinking, the strong rebuke prompted some advocacy groups and lawmakers to urge the agency to appeal to the Supreme Court.

"We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment," Fox Broadcasting said in a statement.


The case specifically involved two Fox broadcasts, and other networks joined in the lawsuit.

At issue has been a series of unscripted obscenities, including the f-word and s-word, uttered in recent years by such performers as Bono, Cher and Nicole Richie during live awards shows. Networks argued they shouldn't be punished when an expletive slips through their safeguards.

Broadcasters have felt increasingly under siege after the exposing of singer Janet Jackson's right breast during the live halftime show of the 2004 Super Bowl, which CBS executives claimed caught them off guard. The resulting uproar helped prompt Congress last year to approve a tenfold increase in fines that boosts the maximum penalty for a violation to $325,000.

But while broadcasters and Hollywood unions cheered the decision by the 2nd U.S. Circuit Court of Appeals, FCC Chairman Kevin J. Martin blasted it.

"I view this as having a significant impact on our ability to enforce our indecency regime as to any restrictions on language," he said.

Martin defended the policy and said FCC attorneys soon would decide whether to appeal. The FCC could ask the entire 2nd Circuit to reconsider or go directly to the Supreme Court.

"The court even says the commission is 'divorced from reality,'" Martin said. "It is the New York court, not the commission, that is divorced from reality by concluding that the word "'f---' does not invoke a sexual connotation."

Commissioner Michael J. Copps, another strong opponent of broadcast indecency, promised a fight.


"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake," Copps said in a written statement.

And, the Parents Television Council watchdog group accused the court of having "stolen the airwaves from the public and handed ownership over to the broadcast industry."

But a network executive, who did not want to be named because the companies are working jointly on the case, said broadcasters still would use delays to try to bleep out expletives.

"It just means on the rare occasions where we might make a mistake or error despite our best efforts, it's going to be harder for the commission to cite that as indecency," the executive said.

"We are very pleased with the court's decision and continue to believe that the government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment," said Scott Grogin, a senior vice president at Fox. "Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

The FCC ruled in March last year that uttering certain expletives, including the f- and s-words, was indecent, even in isolated, or "fleeting," instances. 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."

While expressing support for the networks' constitutional arguments, the judges decided the case on narrow grounds, which some communications law experts believe will hurt the case's chances of being heard by the Supreme Court.

The judges found that FCC rulings last year contending that even isolated uses of expletives violated broadcast indecency standards was "a significant departure" from previous commission rulings.

The judges said they were "sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague."

The ruling said the judges were "skeptical that the commission can provide a reasoned explanation for its "fleeting expletive" regime that would pass Constitutional muster."


Senate Commerce Committee Chairman Daniel K. Inouye, a Hawaii Democrat, urged the FCC to appeal to the Supreme Court, as did Timothy Winter, president of the Parents Television Council.

"This is something that's almost expected on every awards show broadcast," Winter said. "That to me is no longer fleeting, that's trying to take advantage of a loophole."

Jim Puzzanghera writes for the Los Angeles Times. Cox News Service and the Associated Press contributed to this article.