Given the FCC's focus on indecency enforcement actions as well as increased monetary penalties, broadcasters should be paying special attention to the Second Circuit's upcoming ruling in Fox v. FCC. Fox and other broadcasters are appealing the commission's March 2006 Omnibus Order on broadcast indecency, which the commission refined, in part, in its November 2006 Order. A televised oral argument was held in late December. In its two orders, the commission altered its policy on broadcast indecency in ways that could have significant ramifications across the broadcast media, but especially in the broadcast of live programming.

Of High Fashion and Deep Manure: The 2003 Billboard Music Awards

During a 22-second portion of The 2003 Billboard Music Awards, and after receiving an on-air warning from Paris Hilton to "watch the bad language," Nicole Richie uttered the "s-word" and "f-word" in quick succession to describe the futility in attempting to remove bovine waste from designer handbags. As Fox did not dispute the excretory nature of the "s-word" in Richie's first statement, "[h]ave you ever tried to get cow s*** out of a Prada purse?" The commission easily found that the statement fell within its aegis. Over Fox's objection, the commission also held that Richie's follow-up statement, "[i]t's not so f***ing simple," was actionable despite the absence of a sexual context to the word's use.

The commission analyzed the allegedly indecent content in a manner likely to have a ripple -- or even a chilling -- effect on broadcasters. After affirming the "single utterance" policy developed in its Golden Globe order, the commission faulted Fox's technical mechanisms that failed to prevent Fox from broadcasting Richie's errant expletives, while, at the same time, declining to provide guidance to broadcasters wishing to improve their indecency screening measures.

Fox uses the industry's standard five-second delay to aid it in the removal of indecent materials from its live programming, but the commission found that Fox's efforts were insufficient, especially in light of Fox's inability to "bleep" Cher's use of the "f-word" in the previous year's awards show. Noting that a five-second delay could easily be lengthened to "allow for far more effective editing of potentially objectionable content," the commission then declined to provide broadcasters with a suggestion for a more appropriate level of delay. Reconciling the commission's apparent zero-tolerance approach with its recognition that "no delay and editing system is foolproof and that there is always a possibility of human error" will likely become an issue for broadcasters wishing to avoid or defend indecency enforcement actions.

After establishing that Fox's delay system was inadequate, the commission questioned Fox's decisions to air the 2003 Billboard program in "real time" in some Eastern time zones while broadcasting a tape-delayed version of the program in Western time zones. Without providing much by way of explanation, the commission seems to have suggested that if viewers in California were content to watch a three-hour-old tape of the 2003 Billboard program, nothing precluded viewers in Maryland from watching a similarly delayed broadcast.

Finally, the commission noted that Richie's scripted lines, which originally used "cow manure" and "freaking" in place of the as-broadcast expletives, would have "posed minimal risk in the hands of some performers" and that giving the lines to Richie and Hilton posed "a substantially greater risk." Broadcasters may find it difficult to comply with this inherently subjective standard when making programming, casting and scripting decisions.

Surviving Scrutiny: The Early Show

The December 13, 2004, morning broadcast of The Early Show, CBS's two-hour morning news program, featured a short interview with Twila Tanner, a runner-up in CBS's reality game show, Survivor: Vanuatu. When asked her opinion of the winner of the program, Tanner stated that she "knew he was a bulls****er from Day One." The Pittsburgh complainant heard Tanner use the word "bulls****er" at approximately 8:10 am Eastern Standard Time. In its defense, CBS argued that it was protected from liability because the term "bulls****er" was used as part of a bona fide news program.

In its November Order, the commission stopped short of establishing a "news exception," but, when pressed on the issue during oral argument the next month, the commission seemed ready to concede the issue. In any event, the commission's current policy, which "defers to [a broadcaster's] plausible characterization" of its programming, could be seen as a de facto "news exception." This issue will be developed further as the courts and the commission work to define the proper level of deference for appropriately plausible explanations.

Procedurally Flawed: NYPD Blue

Proving that everything is local—even national indecency standards—the commission dismissed a complaint by a Northern Virginia resident against the broadcast of an episode of NYPD Blue in Kansas City, Missouri. In the episode at issue, one of the NYPD Blue characters used the "s-word" in 9 pm broadcasts of ABC's program. In its Omnibus Order, the commission established a policy of considering only those indecency complaints that are filed by viewers residing within the market in which the objectionable material was broadcast. Citing this new policy, the commission dismissed the complaint, which was filed by a resident of Alexandria, Virginia, who did not actually view the program broadcast by the Hearst station.

In light of issues raised in this latest round of indecency proceedings, broadcasters may empathize with Richie and discover that protecting themselves against indecency complaints or enforcement actions is, in the words of Ritchie, "not so... simple." During this time of regulatory uncertainty, broadcasters may find it useful to work with counsel to develop policies to provide greater insulation from indecency-related proceedings and penalties.