On July 13, 2010 the U.S. Court of Appeals for the Second Circuit issued the latest ruling in the ongoing legal wrangling over the Federal Communications Commission's (FCC) policy of taking enforcement action against broadcasters that air "fleeting" indecent material, finding the agency's indecency policy unconstitutional.
Fox v. FCC originated in 2006 when the FCC imposed significant fines on a number of broadcasters who aired programs that contained isolated utterances of certain expletives. During the 2002 Billboard Music Awards show broadcast on Fox's network, Cher derided her critics in an acceptance speech by saying "F- 'em." In the following year's award show—also aired on Fox—Nicole Richie asked and answered a rhetorical question about the ease of removing bovine excrement from a designer clutch. She concluded that it was "not so f---ing simple." The FCC also fined ABC for the use of the word "bulls---t" in the police drama, NYPD Blue, but it opted not to fine CBS for the word "bulls----er" in an interview in CBS's morning news program, The Early Show.
In 2007, the Second Circuit struck down the FCC's policy on procedural—not constitutional—grounds, noting that the Commission failed to provide sufficient justification for implementing the "fleeting indecency" policy. The FCC took the matter to the Supreme Court, which, in a 5-4 decision last year, overturned the Second Circuit's 2007 decision and returned the case to the lower court with instructions to assess whether the FCC's indecency policy was consistent with the First Amendment.
Seven months after hearing oral arguments, the Second Circuit found that the "fleeting indecency" policy is unconstitutionally vague because it fails to provide "a discernible standard by which broadcasters can accurately predict what speech is prohibited." In so finding, the Second Circuit focused on several aspects of the underlying enforcement action. First, it noted that the FCC did not provide sufficient reasoning why certain derivatives of the "S-word" were patently offensive—and thereby subject to sanctions—while other words or phrases with sexual or excretory origins were not. For example, the Commission found that "bulls---" was patently offensive in an episode of NYPD Blue, but the phrases "pissed off," "up yours," and "kiss my ass" were not patently offensive.
The Second Circuit went on to criticize the FCC's twin exceptions to the absolute ban on the broadcast of the "F-" and "S-" words. Under FCC policy, these words (and their derivatives) may be used in bona fide news programs or out of artistic necessity. Under these exceptions, the FCC found that the use of the word "bulls----er" during an interview on CBS's The Early Show and the repeated use of the "F-" and "S-" words in a broadcast of Saving Private Ryan were not actionably indecent. The Second Circuit, however, noted that the FCC's discretion to use (or not) these exceptions could have a chilling effect on free speech, especially when the FCC in oral argument could not advise the court whether a hypothetical program for teenagers warning about the dangers of pre-marital sex would qualify for either exception. According to the Second Circuit, the result is "a standard that even the FCC cannot articulate or apply consistently." As a result, the court was not swayed by the agency's assurances that it would "bend over backwards" to safeguard broadcasters' editorial discretion and noted that the Commission should instead "bend over backwards to create a standard that gives broadcasters the notice required by the First Amendment."
Meanwhile, the remand of the CBS Super Bowl halftime case remains outstanding in the Third Circuit. The FCC's fine for Janet Jackson's fleeting wardrobe malfunction was also initially thrown out as arbitrary and capricious, but after the Supreme Court vacated the Second Circuit's fleeting expletive decision, it remanded that case as well.
It is unclear what steps the Commission will take following the Second Circuit's decision in Fox v. FCC. The agency could seek rehearing en banc before the full Second Circuit, wait to see what the Third Circuit does, immediately appeal to the U.S. Supreme Court, or adopt new indecency policies. Certainly, the decision may have some bearing on how, near term, the agency goes about clearing the backlog of what is reported to be more than one million indecency complaints.
Annual Regulatory Fees
The Federal Communications Commission (FCC) is moving up the date by which broadcast licensees must make their annual regulatory fee payments for fiscal year 2010. While the annual fees typically have been due in September, this year the deadline by which monies must be received by the Commission in order to avoid a 25% late payment penalty is August 31.