High Court Takes FCC’s F-Word Case

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Washington – The Supreme Court on Monday said it would take the case in which the Federal Communications Commission is seeking to restore its authority to fine TV stations for the isolated, fleeting broadcast of the F-word under federal indecency laws.

The decision was a victory for Federal Communications Commission chairman Kevin Martin, who was given new hope that his support for a crack down on broadcast indecency will survive judicial review.

"I am pleased the Supreme Court will review the Second Circuit’s decision in Fox vs. FCC," said Martin in a statement. "The commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility. I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience."

The high court’s decision probably puts off indefinitely a Senate bill designed to allow the FCC to punish one-time uses of the F-word.

U.S. Solicitor General Paul Clement had urged the high court to take the case. The votes of four of nine justices were needed to ensure the court’s review.

Parents Television Council president Tim Winter, whose members have filed hundreds of thousands of complaints with the FCC about broadcast TV content, hailed the court’s decision.

“Millions of families are grateful that the Supreme Court has decided to review this indecency case. Such harsh, unedited profanity is unacceptable for broadcast over the publicly-owned airwaves when children are likely to be watching,” Winter said in a statement.

Andrew Jay Schwartzman, president of Media Access Project, a public interest law firm, said he was surprised the court took the case.

“We were not alone in expecting that the Court would reject the government’s request to hear the 'fleeting expletive’ challenge,” he said in a statement. “Even so, we remain quite confident that the FCC’s policies will be rejected. The current regime is incoherent and overbroad. It has chilled the creative process for the writers, directors and producers we represent.”

MAP is representing the Center for Creative Voices in Media, an organization of television writers, producers and directors opposed to the FCC’s punishment of fleeting indecency.

The Bush administration turned to the Supreme Court after a panel of the U.S. Court of Appeals for the 2nd Circuit ruled in a 2-1 vote last June that the FCC’s decision to start fining fleeting indecency was invalid.

The court reasoned that the agency failed to justify abandonment of its historic approach to indecency enforcement, which mainly focused on the repetitive, not the isolated, broadcast of indecent material.

Fox Television Stations, CBS Broadcasting Inc., ABC, Inc., and NBC Universal filed briefs asking the Supreme Court to reject the case and force the FCC to address deficiencies cited by the 2nd Circuit’s opinion.

The agency changed policy in 2004, finding that rock singer Bono’s use of “fucking brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe awards. NBC wasn’t fined because it didn’t have advance notice that FCC policy was changing. This approach was adopted before Martin became chairman in March 2005.

The FCC later applied the Golden Globes standard to Fox’s live coverage of the 2002 and 2003 Billboard Music Awards. In 2002, singer-actress Cher used the phrase “fuck 'em’ in her acceptance remarks. A year later, Hollywood actress Nicole Richie used “cow shit” and “not so fucking simple” during an award presentation. Like NBC, Fox wasn’t fined for either incident.

Martin was outraged by the 2nd Circuit's ruling.

“Today, the Second Circuit Court of Appeals in New York said the use of the words ‘fuck’ and ‘shit’ by Cher and Nicole Richie was not indecent,” Martin said in an earlier statement “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 television during the hours when children are most likely to be in the audience.

An FCC spokeswoman said on Monday that Martin had been "intentionally explicit to highlight the words at issue."

Rep. Anna Eshoo (D-Calif.) told Martin at a House hearing a few weeks later that his profanity-laced statement was in poor taste.

“I don’t think it’s really becoming of an FCC chairman to have something like that, I mean, in terms of the language it contained. That’s unsolicited advice,” she said.

Martin refused to remove the statement or to include a parental warning.

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