Broadcasters scored a major victory against the FCC on Monday, as a three-judge panel of the Second Circuit Court of Appeals struck down a 2006 ruling in which the FCC determined that the Fox television network had violated the agency’s indecency rules in airing unscripted profanity during live telecasts of the Billboard Music Awards in 2002 and 2003.
The 2-1 decision puts a halt to an FCC crusade against obscenity that gained momentum in 2004 when the agency declared that an expletive uttered by U2 singer Bono during an NBC broadcast of the Golden Globe Awards violated indecency standards. Although the FCC declined to fine NBC for that incident, the FCC has used the Bono decision as the basis for subsequent indecency orders that include the 2006 ruling against the Fox network. In holding Fox accountable for indecency, the FCC found that utterances of the f-word and the s-word on live television imply sexual or excretory activity in a manner that is prohibited under the FCC’s rules. Arguing that the utterances in question were fleeting and that the remarks delivered within the context of an awards show did not refer to sexual or excretory actions, Fox—with the backing of the NBC, CBS, and ABC networks—challenged the FCC’s ruling on grounds that it constituted censorship that violates the right to free speech. Siding with Fox, the court struck down the FCC’s ruling, declaring that “the FCC’s new policy regarding ‘fleeting expletives’ fails to provide a reasoned analysis justifying its departure from the agency’s established practice.”
Even as it ordered the FCC to rewrite its indecency policy, the court expressed doubt that the FCC would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.” Praising the court’s decision, Fox observed that “viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home.” Hinting at a possible appeal to the Supreme Court or before the full en banc panel of appeals court judges, FCC Chairman Kevin Martin lamented: “if we can’t restrict use of the [f- and s-words] during prime time, Hollywood will be able to say anything they want, whenever they want.”