FCC Rescinds 2 Indecency Cases, Upholds ‘Golden Globe’ Precedent
The Commission rescinded 2 of 4 indecency orders that were part of Fox vs. FCC and found expletives on the remaining shows were still profane. The agency upheld a previous finding (CD March 17 p1) that the 2002 and 2003 Fox Billboard Music Awards contained indecent material because they contained “fuck” or derivations. That finding sets the stage for a response to the 2nd U.S. Appeals Court, N.Y., from Fox that attacks the precedent set in 2004 by a separate indecency order on The Golden Globe Awards, said lawyers in the case. Comr. Adelstein slammed the Commission for not clarifying that precedent in his partial dissent of the order, released late Mon.
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An indecency finding against CBS’s The Early Show was thrown out because the word “bullshitter” was used in what the Commission concluded was a news interview. Despite criticism that the segment wasn’t news because it promoted CBS’s Survivor, the FCC said it took CBS at its word that an interview of a contestant constituted news. “It is oftentimes difficult to distinguish between true news programming and infotainment,” Chmn. Martin wrote: “I believe the Commission’s exercise of caution with respect to news programming was appropriate in this instance.” CBS cheered that finding but joined broadcasters in criticizing indecency enforcement. The network said it will “pursue all of our legal remedies” until the FCC “returns to its time- honored practice of more measured indecency enforcement.”
An order against NYPD Blue was tossed out because the complainant, a Va. resident, couldn’t have watched the show, on Hearst-Argyle’s KMBC-TV Kansas City, which aired it in a time period not protected by the safe harbor, the FCC said: “None of the complaints contains any claim that the out-of- market complainant actually viewed the complained-of broadcasts on KMBC-TV or any other ABC affiliate where the material was viewed outside of the safe harbor.” ABC and Hearst-Argyle declined comment.
The 2 tossed-out cases aren’t wholesale wins for the industry because they're narrow rulings that won’t necessarily affect enforcement, said broadcast lawyers. “The ways in which the Commission dismissed the complaints against the Early Show and NYPD Blue do not offer broadcasters much comfort for future decisions,” said Jack Goodman, involved in the Fox case: “They weren’t saying they weren’t indecent. They were just saying in this case it was procedurally defective.” Fox objected to the order. “Today’s decision highlights our concern about the government’s inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases,” a spokesman said: “We look forward to court review, and the clarity we hope it will bring.”
Fox likely will argue in plaintiff’s briefs due later this month and in oral arguments before the court that the Commission overstepped its Constitutional authority by finding isolated uses of “fuck” are indecent, said lawyers in the case. By referring to Golden Globe, the Commission increases the likelihood it will be questioned about Constitutional soundness by the panel of 3 judges, they said. The FCC hasn’t acted on Fox’s 2004 petition for reconsideration of that order. “Golden Globe’s reconsideration order looms over all of this, just as it has all along,” said Media Access Project Pres. Andrew Schwartzman, who’s involved in the case: “You can bet the court is going to ask about it… It greatly undermines any credibility the Commission might claim for its actions.”
A TV program can be found indecent if “fuck” is used once, regardless of whether it refers to sex, said the FCC, echoing the Golden Globe finding. Mon.’s order was the result of a 60-day remand of the 4 indecency findings. The remand was granted at the agency’s request by the 2nd Circuit. The reworked order referred to the Commission’s 2004 finding that musician Bono’s exclamation “fucking brilliant” on the Golden Globe show a year earlier was profane. “Under our Golden Globe precedent, the fact that Cher used the ‘F-word’ once does not remove her comment from the realm of actionable indecency,” said the order. The Commission disagreed with Fox that the word wasn’t improper because it was used as an insult, not as a sexual term. “The fact that she was not literally suggesting that people engage in sexual activities does not necessarily remove the use of the term from the realm of descriptions or depictions. This case thus illustrates the difficulty in making the distinction between expletives on the one hand and descriptions or depictions on the other.”
The FCC used a similar rationale in determining Paris Hilton’s utterance, “it’s not so fucking simple,” was profane even though Fox said she wasn’t describing sex. “We disagree,” the FCC said: “Given the core meaning of the ‘F- Word,’ any use of that word has a sexual connotation even if the word is not used literally. Indeed, the first dictionary definition of the ‘F-Word’ is sexual in nature.”
The FCC may run afoul of the Constitution by not clearing up the Golden Globes matter, Adelstein said: “It was my hope that the Commission would use this remand to clarify and rationalize our indecency regime, but regulatory convenience and avoidance have prevailed instead… While the Commission has simply refused to review the Golden Globe case, we have relied upon, expanded and applied it more than any other indecency case in the past two years.”