June 5, 2007 in Nation/World

Court rebuffs FCC on ‘fleeting expletives’ policy

Frank Ahrens Washington Post

WASHINGTON – A federal appeals court tossed out an indecency ruling against Rupert Murdoch’s Fox television network Monday and broadly questioned whether the Federal Communications Commission has the right to police the airwaves for offensive language.

In a 2-1 decision, the U.S. Court of Appeals for the 2nd Circuit in New York ruled that the FCC went too far in issuing a 2006 decision against Fox Broadcasting for separate incidents in 2002 and 2003 when singer Cher and celebrity Nicole Richie each uttered an expletive on live television.

The ruling is a rebuke to the FCC and a victory for television networks, which have pushed back against the FCC’s crackdown on indecency in recent years. In 2004, the agency reversed years of policy and effectively branded even “fleeting” – or one-time – use of an expletive off-limits on broadcast television and radio, angering Hollywood.

The court ruled Monday that the FCC had not adequately, or constitutionally, explained why it changed its mind on the fleeting use of profanity, and ordered the agency to retool its regulations.

The court decision could bolster the networks’ argument that parents need better tools – such as the V-chip and channel-blocking technology – rather than more government regulation to protect their children.

Because the Fox incidents occurred before the FCC’s 2004 ruling on fleeting profanity, the agency did not fine the network but did rule the broadcasts indecent. Fox appealed the FCC ruling to the 2nd Circuit, saying the new rule set a dangerous precedent for clamping down on free speech.

Monday the court sided with Fox, writing that the FCC’s “new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious.”

“I’m disappointed in the court’s ruling,” FCC Chairman Kevin Martin said in an interview. “I think the commission had done the right thing in trying to protect families from that kind of language.”

Martin said FCC lawyers are reviewing the agency’s options and might appeal the decision to the Supreme Court.

FCC commissioner Michael Copps warned in a statement, “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.”

Critics of the FCC crackdown applauded Monday’s ruling.

“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 spokesman Scott Grogin said in a statement. “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 forbids the radio and television broadcast of sexual or excretory material between the hours of 6 a.m. and 10 p.m., when children are most likely to be in the audience.

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