FCC, Fox Square Off On Profanity...Again

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Federal Communications Commission and Fox went at it again Wednesday (Jan. 13) over the issue of swearing in a live broadcast, and one observer said the FCC had a rough time of it.

"To say that the justices were extremely skeptical of the FCC's application of the indecency law from a constitutional perspective in this case is an understatement," said one courtroom observer sympathetic to the broadcaster arguments and who asked not to be identified. The FCC said no one was available to comment on their side of the argument.

The venue was a New York courtroom, where the Second Circuit was getting an earful once again.

"The judges seemed to be very concerned about the First Amendment implications of how the government has been enforcing the indecency law lately," the observer said.

Judges Rosemary Pooler, Pierre Leval and Peter Hall heard the case, the same three that presided the first time around.

Hall is said to have asked, as he did in initial arguments, whether if the oral arguments were aired on a newscast and the words in question ('fuck' and 'shit') were used--as they were in court Wednesday by two of the three judges--would it be indecent. The FCC's lawyer, Jake Lewis from the General Counsel's Office, said no. The FCC has a higher bar for swearing in newscasts, though they are not immune from indecency enforcement.

That should be good news for C-SPAN, which is planning to air the arguments unbleeped at 8 p.m. tonight on its FCC-regulated radio outlet.

Hall followed, as he did last time, with the observation that if the FCC was out to protect children, allowing swearing in newscasts didn't seem to square with that.

Pooler and Leval were said to be the most antagonistic to the government's position. Both used the actual words in their questioning, while Hall used "s-word" and "f-word."

Broadcasters are looking for a decision that the FCC's application of its rules in this case was unconstitutional, which would likely send the case back to the Supreme Court. There they are hopeful the FCC's entire indecency enforcement regime could be up for review. The arguments Wednesday appeared all to be about the issue of whether the indecency rules had been unconstitutionally applied in this instance.

The court is re-hearing the case on instructions from the Supreme Court, which overturned the Second Circuit's June 2007 decision that the FCC's crackdown on fleeting profanity was arbitrary and capricious and remanded the decision back to the court. The Supreme Court ruled narrowly, on procedural grounds, as the Second Circuit had done, without getting into the constitutional issues.

The case stems from the FCC's conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 were a violation of community standards for broadcasting.

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