Justice Department: Restore FCC Indecency Enforcement

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Washington—The Supreme Court should restore the Federal Communications Commission's authority to punish TV and radio stations with fines for airing one-time utterances of the F-word, the Justice Department said in a brief Monday.

The Bush administration is trying to win back for the FCC some of its authority to curb indecent broadcasts lost last June in a ruling by a panel of the U.S. Court of Appeals for the 2nd Circuit.

"The court of appeals had no basis to override the [FCC's] judgment on the risks that isolated expletives pose to children during the broadcast times at issue," U.S. Solicitor General Paul Clement said in the 52-page brief. The high court is expected to hear the case in the fall.

The FCC has no power to regulate indecent content provided by cable operators. But the agency is authorized to oversee TV and radio stations, mainly to protect young children from surprise encounters with indecent content.

From 6 a.m. to 10 p.m., broadcasters are banned from airing indecent programming, defined by the FCC as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience.”

For decades, the FCC did not punish fleeting or one-time utterances of indecent words. The agency reversed itself in 2004 when it found that rock star Bono’s use of “f---ing brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe Awards.

The FCC applied the new standard to Fox’s live coverage of the 2002 and 2003 Billboard Music Awards. In 2002, singer-actress Cher used the phrase, “F---’em,” in her acceptance remarks. One year later, Hollywood actress Nicole Richie said “cow s-word” and “not so f---ing simple” during an awards presentation.

The 2nd Circuit held that the FCC's new policy was a significant departure from precedent and that the agency failed "to articulate a reasoned basis for this change in policy," violating the Administrative Procedure Act.

The court also held the FCC's refusal to punish ABC for airing Saving Private Ryan, a war film in which the F-word is used frequently, reflected inconsistent enforcement that served to undermine the new emphasis about fleeting indecency.

In the court brief, the Justice Department argued that the FCC justified its new policy and that the agency was not required, in order to remain consistent, to enforce a policy in which every broadcast of the F-word had to be considered indecent.

"In any number of ways, the use of an expletive by, for example, a wire-tapped organized crime figure on a news program is far removed from the use of the same word in the dialogue on an awards show," the Justice Department said. "There is no statutory reason why the FCC is compelled to treat such fundamentally different cases the same way."

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