FCC Indecency Policy Draws Judges’ Scrutiny in Fox Arguments

The panel’s 3 judges homed in on enforcement of indecency rules when a program has a single unscripted use of a fleeting expletive. Philips restated industry arguments that an agency crackdown on such obscenity has stations and networks confused about what’s allowed. Pooler asked for examples of how the industry was hurt by an FCC 2004 Golden Globe Award show order finding one curse could draw a fine. Fear of fines kept many stations from carrying CBS’s 9/11 show on the attacks’ 5th anniversary, Philips said.

Context helps decide whether a program aims to titillate, said Miller. He was answering Judge Pierre Leval, who had asked: “Would you be shocked if a judge in the 2nd Circuit Court of Appeals said ‘fuck'?… Doesn’t context matter?” Miller said contextual judgments are part of “community standards analysis” to decide if “material [is] pandering, titillating or presented for shock value.” Such a calculus found the film Saving Private Ryan not indecent, even though it contained salty language, he said.

Leval said he wasn’t certain Fox had shown the FCC had a flawed rationale for finding fleeting expletives indecent. “I've been puzzled by your argument about lack of analysis,” Leval said: “There can be no reasonable analysis?” Philips’ reply: “At the end of the day, that’s our point.” Judge Peter Hall asked: “The FCC cannot regulate the fleeting expletive?” Correct, said Philips.

The FCC doesn’t seem to be precluded from fining stations for airing a curse by the 1978 Supreme Court Pacifica indecency ruling, Leval said: “I'm not sure the FCC ever took a position that to be indecent there must be more than a fleeting expletive.” Even if such enforcement doesn’t violate the First Amendment, the FCC violated Administrative Procedure Act (APA) by not forewarning industry that fleeting expletives could draw fines, Philips said: “It’s a demonstrably new level… What has changed drastically is the use of these words becomes a per se violation.” Miller disagreed: “All that the APA requires is that the Commission acknowledge it changed course, which it definitely did.”

Broadcasters have plenty of guidance on what is and is not obscene in the Golden Globe and other indecency orders, Miller said. Asked by Leval why the FCC doesn’t preview shows broadcasters fear may run afoul of indecency rules, Miller said the Commission can’t do that because it would constitute prior restraint censorship. “What’s the difference between that and a system, of, ‘You guessed wrong, gotcha,'?” asked Hall. The FCC won’t issue fines in such cases, Miller said, citing its decision not to penalize Fox for the Billboard 2002 and 2003 shows on which the case hinges, said Miller. Pooler said: “This seems to be a scheme that depends on what you think… as opposed to having objective criteria.”

The FCC drew a rebuke of sorts for not reviewing its Golden Globe ruling in the 2 years a petition to reconsider it has been pending. Pooler described the order as “moldering before the Commission.” Judges’ questioning indicated the order may be an issue in Fox because it set a precedent. Miller agreed the order is relevant to the case at hand, but said the court’s job isn’t to decide Golden Globe’s merit.

Miller was asked by Hall and Pooler how the FCC decides what deserves a news exemption. The Commission gives wide latitude to broadcasters in deciding what’s news, Miller said, but “there isn’t a news exception that you can simply slap the label ‘News'” on. It seems a station can “just make some cockamamie claim and it will survive,” said Pooler.

The FCC news exemption again may be tested by C-SPAN. It aired the oral argument live, in its entirety, on radio. The case was to air late Wed. on the cable network. C-SPAN hopes it won’t be fined because of Miller’s arguments in court, gen. counsel Bruce Collins said after the hearing: “It’s apparent C-SPAN coverage today falls into the news exception that doesn’t exist.”

Pooler drilled into an FCC claim that kids are especially vulnerable to indecent broadcasts because they likely have TVs in their rooms getting over-the-air programming. “Parents could get the TV out of the bedroom” instead of the FCC “galloping to the rescue,” she said: “You want to protect these children even when the parents [aren’t]?” Miller replied: “That’s what Congress wanted.” Pooler slammed the FCC for not initiating a rulemaking for another TV rating system since Miller said the current one, approved by the agency in 1998, isn’t working.

Leval and Pooler asked how broadcast TV differs from the Internet and cable, since the latter media don’t come under indecency mandates. “The potential impact has changed with the technology,” Leval said: “There are all these other zones that are unregulated.” Why not subject cable to the same indecency rules as broadcasters, asked Pooler. Philips said that would be unconstitutional, and “from a viewer’s perspective, there is no difference.”

Fox and allies were cheered by the judges’ queries, they said after the hearing. “They analyzed this pretty much along the lines we asked them to,” Philips said: “One thing that is new was Golden Globe was in play -- or maybe not” if the FCC has its way. “They're very clearly troubled by the fact that the Commission is sitting on the Golden Globe decision,” said attorney Andrew Schwartzman, also involved in the case.

A “narrow” ruling on whether the FCC followed procedure is the likeliest outcome, said Schwartzman. Pooler said in court she hoped to avoid Constitutional questions, a common appellate court desire. A decision is possible within a few months, said Philips. Progress & Freedom Foundation’s Adam Thierer, who filed an amicus brief in the case, was pleased the judges asked about the dichotomy between broadcast decency rules and a lack of same for cable and newer technologies, he said: “I think this case is a slam dunk for broadcasters.”