Gov't Appeals Ruling on FCC Indecency Policy

The Federal Communications Commission (FCC) is appealing last month's federal court ruling that struck down the regulating agency's indecency policy.

In a court filing submitted Thursday to the Court of Appeals for the Second Circuit in New York, FCC General Counsel Austin Schlick said last month's decision by the three-judge court panel "threatens to have a wide-ranging adverse impact on the FCC's ability to enforce federal statutory restrictions on the broadcast of indecent material."

Furthermore, Schlick said the ruling raises "serious concerns about the commission's ability to protect children and families from indecent broadcast programming."

In its unanimous ruling last month, the court panel determined that the FCC indecency policy violates the First Amendment because it is "unconstitutionally vague."

According to the policy, revised in 2004, a single, nonliteral use of an expletive (a so-called "fleeting expletive") could be actionably indecent. Prior to the revision, the FCC did not usually penalize broadcasters for vulgar language on television and radio stations unless there were repeated offenses.

The revision was made following a number of high-profile incidences involving the utterance of expletives during live televised award shows.

During the station's 2002 and 2003 Billboard Music Awards shows, Cher and Nicole Richie used the "F-word" and the "S-word" as they spoke on stage before the millions watching. Later, singer Bono uttered the phrase "really, really, f***ing brilliant" in his acceptance speech at the 2003 Golden Globes awards show on NBC.

In 2006, the FCC charged a number of television broadcasts for having violated the indecency rules between the years of 2002 and 2005.

In response, Fox, CBS and other television networks sued the FCC, arguing that the independent agency did not adequately explain why it changed its standards.

In 2009, however, the U.S. Supreme Court ruled that the FCC may penalize networks for even the occasional use of expletives but notably did not rule on the constitutionality of the policy.

The case was thus sent back to the appeals court, which determined that the current standards are ones that even the FCC cannot articulate or apply consistently.

"We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment," the panel stated. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."

The unanimous ruling received mixed reactions - even from conservative media watchdog groups - with some saying it "authorized the broadcast networks unbridled use of the 'F-word' at any time of the day, even in front of children."

Others agreed with the court, noting that the current FCC policy "is a mess."

Following the FCC's decision to appeal the ruling, Concerned Women for America (CWA) released a statement saying it was "pleased to see the FCC is standing up for families and the agency's power to regulate indecency granted by 'We the People.'"

"The previous ruling undermines decency standards which have protected children for decades, opening up the door for broadcasters to barrage our families with indecent programming," remarked CWA CEO Penny Nance.

"We pray the court recognizes the very dangerous practical effect its decision will have on our culture and that it will overturn that decision."

The Parents Television Council, a group that supports strong broadcast-indecency rules, also praised the FCC's decision to appeal.

Though the case now awaits a decision by the appeals court on whether the three-judge panel or the full court will reconsider the decision, it is widely expected to go back to the Supreme Court.

Backing the FCC is the U.S. Justice Department.