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Appeals Court: says “fleeting expletives” ok on network TV

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The US Court of Appeals for the Second Circuit has overturned a Federal Communications Commission indecency ruling, sending the case back down to the FCC for further deliberation. At issue were an f-bomb dropped by pop diva Cher during the 2002 Billboard Music Awards along with a couple of choice expletives voiced by reality show star Nicole Ritchie during the 2003 show, both of which were televised live on Fox.

In November 2006, the FCC ruled that “fleeting expletives” during prime time violated the Commission’s indecency and profanity prohibitions. Fox, with the support of the other broadcast networks, challenged the ruling, arguing that the FCC does not issue clear standards outlining acceptable content on TV and radio.

In a 2-1 ruling, the court found that the FCC’s policy against fleeting expletives is “arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” It cited the FCC’s own history of distinguishing between material that “dwells” on indecent content versus material that was “fleeting and isolated.”

After U2 frontman Bono said “This is really, really, fucking brilliant. Really, really, great” during an acceptance speech during the 2003 Golden Globe Awards televised live on NBC, the FCC was hit with a complaints from the Parents Television Council. The FCC’s Enforcement Bureau denied the complaints, saying that Bono’s comments were “fleeting and isolated” and didn’t describe “sexual or excretory organs or activities.” The full Commission later overturned the Enforcement Bureau’s decision, saying that f-bombs were “patently offensive under contemporary community standards.”

The Court disagreed with the Commission’s reasoning that allowing fleeting curse words would result in a 24-hour barrage of expletives, saying that the Commission was “divorced from reality.” It is important to note that the Court’s decision is limited to fleeting curse words and should not be interpreted as a blanket license to allow swearing on TV.

FCC chairman Kevin Martin is not happy with the Court’s decision. “I completely disagree with the Court’s ruling and am disappointed for American families,” said Martin in a statement. “I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.”

Martin also believes that the Court is the entity with a tenuous grip on the real world. “The court even says the Commission is ‘divorced from reality,'” argues Martin. “It is the New York court, not the Commission, that is divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation.”

Sen. Daniel Inouye (D-HI), chairman of the Senate Commerce Committee also weighed in on the ruling, saying that he hoped that the FCC appeals the case to the Supreme Court. “It is disappointing that a divided Second Circuit panel chose to invalidate the FCC’s efforts to combat the gratuitous use of offensive language on broadcast television,” said the senator.

Fox is quite pleased with the ruling, saying that it feels that “that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment.”

The FCC has been on an indecency kick as of late, spurred in part by activist groups like the Parents Television Council. During the third quarter of 2006, the FCC saw a 40,000 percent increase in indecency complaints after a large-scale campaign to flood the FCC with complaints began. After singer Janet Jackson exposed herself during Super Bowl XXXVIII in 2004, the Parents Television Council was responsible for over 99 percent of the subsequent complaints.

The ruling comes as FCC is seeking authority to increase its regulatory power over both broadcast and cable TV. If it gets approval from Congress, the Commission would like to clamp down on TV violence, and chairman Martin believes that regulating cable is necessary. “We can’t just deal with the three or four broadcast channels,” Martin said. “We have to be looking at what’s on cable as well.” Barring an act of Congress, the Appeals Court’s decision is likely to put the brakes on the FCC’s regulatory urges when it comes to television—unless the Supreme Court overturns today’s decision.

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