Fox Lays Out First Amendment Arguments Against FCC

Dec 20, 2006  •  Post A Comment

Arguing that the Federal Communications Commission has done a 180-degree turn against 30 years of its own indecency enforcement tradition and is trampling on “First Amendment values,” Fox Television Stations on Wednesday asked a federal appeals court to toss out an FCC ruling that fleeting expletives uttered by Cher and Nicole Richie on live TV constituted indecency.

If the FCC’s action is allowed to stand, the result will be “a set of rules that are even more terroristic” than before, said Fox attorney Carter Phillips, who wondered aloud how broadcasters are to know for certain what the FCC considers patently indecent anymore.

The case in point stems from the Billboard Music Awards shows broadcast live on Fox Broadcasting in 2002 and 2003, when Cher used the f-word and Ms. Richie the f-word and s-word, but not repeatedly.

The FCC in March 2006 found Fox liable in both instances but did not propose fines.

The oral arguments in New York before a panel of three judges hearing the appeal — and repeating the words at issue — in the U.S. Court of Appeals for the Second District were carried live by C-SPAN on cable and C-SPAN Radio. Because the FCC does not regulate cable, the C-SPAN telecast did not risk running afoul of the FCC’s interpretation of what amounts to indecency according to community standards.

Over-the-air radio, however, is subject to FCC regulation, but the FCC’s attorney, Eric Miller, said broadcast radio or TV coverage of the oral arguments even could include clips of the original offenses and not run afoul of the FCC because it would be considered news, an area that has been allowed more First Amendment leeway.

“Do you make [children] leave before the news comes on tonight?” presiding Judge Rosemary Pooler asked of Mr. Miller, wondering why the expletives could be harmful to children on the Billboards show and not on a newscast.

The one-woman, two-man panel seemed to have Mr. Miller chasing his rhetorical tale as it pressed on a variety of fronts and made clear it hoped to be able to rule without getting into constitutional territory.

The questions included why it should matter whether a breach of indecency standards is planned or unplanned, or broadcast or carried on cable, along with questions about the consistency of enforcement and judicial precedent based on repeated offenses. Also raised was the question of why “the Nicole Richies of the world,” as labeled by Judge Pooler, shouldn’t have the same First Amendment protections as newscasters on TV.

The court did not say when its ruling might be issued, but Mr. Phillips said after the oral arguments that it is unlikely to happen before the Super Bowl on Feb. 4.

It was an allusion to the most famous indecency case: the 2004 Super Bowl halftime show in which the baring of Janet Jackson’s breast led the FCC to fine 20 CBS-owned stations a total of $550,000. That case also is on appeal.

(Editor: Liff)