DOJ Asks Supreme Court To Review F-Word Case

Solicitor General Wants Court to Back FCC Crackdown

By Ted Hearn -- Multichannel News, 11/1/2007 11:57:00 AM

Washington – The Justice Department on Thursday asked the U.S. Supreme Court to uphold the Federal Communications Commission authority to punish TV stations that air the F-word in a fleeting and isolated manner.

Solicitor General Paul Clement filed a brief that urged the high court to overturn a ruling in June by the U.S. Court of Appeals for the 2nd Circuit. A panel from that court voted 2-1 to void the FCC’s crackdown on the fleeting broadcast of the F-word, claiming the agency failed to supply a reasoned explanation for its new, get-tough policy. The court said the FCC flip-flop violated the Administrative Procedure Act.

In his 31-page brief, Clement said the 2nd Circuit’s ruling was flawed in several respects and should to be set aside.

“In reality, the [FCC] provided a thorough, reasoned explanation for its change in policy,” Clement’s brief said.

Although the FCC has authority to regulate indecent content on radio and broadcast TV, it does not have the same power over cable TV operators and programmers.

For nearly three decades, the FCC overlooked one-time expression of the F-word, focusing instead on repetitive use. But it changed course in 2004, starting with a ruling that rock singer Bono’s use of “f--king brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe Awards. Similar rulings followed.