FCC ‘Fleeting Expletive’ Policy Remanded by 2nd Circuit

In its opinion, the majority agreed with broadcast networks that the Golden Globe ruling marked a sea change in enforcement policy, since previously the FCC issued fines only when curses were part of more extended offensive content. The judges cited the Commission’s “restrained enforcement policy” from the time of the Supreme Court’s 1978 Pacifica decision until the Golden Globe order. In issuing that order, the FCC failed to “provide a reasoned analysis for departing from prior precedent,” the judges wrote. The FCC claim that one “fuck” or “shit” in a show harms viewers held no water for the 2 jurists. The FCC rationale, that exposure to a fleeting expletive means viewers suffer from a “first blow,” doesn’t justify fining networks for one curse, the 2 judges said: “The Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful ‘first blow’ for the nearly 30 years between Pacifica and Golden Globes. More problematic, however, is that the first blow theory bears no rational connection to the Commission’s actual policy.”

Judges Pooler and Hall slammed the Commission throughout their decision, delivering what some participants in the case called a full-scale win for broadcasters. The judges said the basis of their ruling was limited to APA considerations, but said the fleeting expletive policy may not be Constitutional. Bono’s declaration that winning an was “fucking brilliant” isn’t indecent in any “common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any ’sexual or excretory’ meaning,” said the majority ruling. A 2006 FCC order finding that Fox violated indecency rules when guests on the Billboard shows swore “is equally divorced from reality because the Commission itself recognizes that broadcasters have never barraged the airwaves with expletives even prior to Golden Globes,” wrote the judges: “The FCC’s decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes this harm is serious enough to warrant government regulation.”

The Mon. ruling leaves the FCC in a tight spot, legally and policywise, said several attorneys and a Commission official. By limiting their ruling to the case’s APA merits, Hall and Pooler gave the FCC narrow, perhaps untenable grounds for appealing to the high court, since the Supreme Court doesn’t usually review APA decisions, said several broadcast attorneys. “The court didn’t give them much leeway to salvage this,” said a veteran broadcast lawyer: “I don’t think the Commission is going to be able to duck it.” The FCC could appeal to the full 2nd Circuit, a move industry lawyers termed far from certain to succeed.

The Commission is unlikely to appeal to the Supreme Court because the 2nd Circuit ruling raises no wider constitutional issues, said several attorneys involved in the case. An FCC spokesman declined to comment on when the agency will decide, saying the issue remains under review. FCC Chmn. Martin panned the decision. “I completely disagree with the court’s ruling and am disappointed,” he said late Mon.: “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 TV during the hours when children are most likely to be in the audience.”

Next FCC Step Unclear

Industry lawyers said Hall and Pooler likely limited their ruling to APA because they want the FCC to rework its indecency policy. They said the Commission can issue a notice of proposed rulemaking (NPRM) seeking public comment on indecency standards or release a policy statement clarifying enforcement. An NPRM is the less likely of the 2 options, since commenters might raise a slew of constitutional issues, said a 2nd industry lawyer: “There’s no reason to do one. It would be the worst of all possible worlds for them. While they were doing it they couldn’t do any enforcement, because by definition it’s up in the air.” FCC officials said the Commission hadn’t prepared an NPRM. It could take several months to issue a policy statement, said lawyers.

Broadcasters predictably cheered the ruling in Fox. v. FCC. Parental control tools make govt. content control an anachronism, Fox said: “Government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment.” Judges Hall and Pooler agreed with Fox -- somewhat -- saying changes in media technology don’t mean broadcasters can dodge indecency controls. “Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children,” they wrote: “At some point in the future, strict scrutiny may properly apply in the context of regulating broadcast TV.” NAB called the ruling “timely” because members of Congress are weighing whether to regulate TV violence. CBS and NBC also cheered the ruling.

The judges suggest enforcement actions against fleeting use of expletives is unconstitutional. Industry lawyers said the judges did so in order to prompt any FCC reworking of standards to weigh First Amendment issues as well as administrative procedure. Hall and Pooler said they were uncertain whether the enforcement standard would “survive First Amendment scrutiny. For instance, we are sympathetic to the networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague.”

The judges urged the FCC to be thorough in revisiting the policy. If on remand the agency doesn’t explain fully its new policy on indecency, the networks likely will sue, the judges said. Acts of enforcement against fleeting use of expletives seem to violate free speech rights, they wrote: “It appears that under the FCC’s current indecency regime, any and all uses of an expletive [are] presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were ‘integral’ to the work.”

Leval’s dissent might give the FCC a better chance of a success en banc appeal to the full 2nd Circuit, said industry lawyers. But they said the Commission should consider the time and cost of an en banc appeal, considering that, even if it prevailed there, a high court ruling in its favor seems unlikely. “It’s possible they would seek rehearing in the [full] 2nd Circuit because they got a dissent [but] I think that’s probably unlikely,” said Media Access Project Pres. Andrew Schwartzman, who participated in the case. “The overwhelming likelihood is that it winds up back at the FCC.”

Leval limited his dissent to analysis of an FCC finding that the word “fuck” is indecent, even if said only once in a show. “The Commission explained succinctly why lack of repetition fo the f-word would no longer result in a virtual free pass,” wrote Leval: “In explanation of this relatively modest change of standard, the Commission gave a sensible, albeit not necessarily compelling, reason.”