Appeals Court Rules Against FCC Decency Regulations

NEW YORK – Pro-family groups have been expressing their disappointment over a recent vote by a U.S. Court of Appeals, which gave major TV networks a big victory by overruling a federal regulator's decision to penalize the FOX network over decency standards.

The U.S. Court of Appeals for the Second Circuit in New York, by a 2-1 margin, said Monday that the Federal Communications Commission (FCC)'s new standard for defining decency was "arbitrary and capricious."

The new standard, voted on by the FCC in 2006, stated that "unscripted" profanity slips counted as indecency, but the appeal court found the addition to be "a significant departure" from previous rulings.

The law will now be sent back to the FCC, an independent United States government agency that regulates radio and television broadcasting, to clarify its policy unless commission heads decide to challenge the ruling at the Supreme Court.

"We find that the FCC's new policy regarding 'fleeting expletives' represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry," wrote Judge Rosemary Pooler for herself and Judge Peter Hall in the majority decision. "We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding 'fleeting expletives' is arbitrary and capricious."

The appeal was a result of a March 2006 ruling that the FCC made against FOX television accusing the station of breaking decency rules. During FOX's 2002 and 2003 Billboard Music Awards shows, hosts Cher and Nicole Richie had used the "F-word" and the "S-word" during the ceremonies.

The recent decision, which comes one year after the Congress increased broadcast indecency fines, is a big victory for television networks. Although FOX was not fined by the FCC in the current case, had the FCC's decision not been overrule, a wider door for hefty penalties could have been opened for the future. After last year's increase of indecency fines, broadcasters that break the regulations could spend $325,000 per violation.

FOX representatives were pleased with the overruling and explained that "government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment."

"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," they added.

Several groups, including the FCC, are arguing against the appeals decision, however, explaining that banning these expletives is in no way "arbitrary."

"I completely disagree with the Court's ruling and am disappointed for American families," said Kevin Martin, chairman of the FCC, in a statement. "I find it hard to believe that the New York court would tell American families that '[S-word]' and '[F-word]' are fine to say on broadcast television during the hours when children are most likely to be in the audience.

"If ever there was an appropriate time for Commission action, this was it," he added. "If we can't restrict the use of the words '[F-word]' and '[S-word]' during prime time, Hollywood will be able to say anything they want, whenever they want."

Many groups have also argued that the decision in no way reflects what American families and society wants. Because the appeals court had so few judges, it was not a proper representation and easily skewed towards the broadcasters.

"By a mere 2-1 margin, the Second Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry," explained Tim Winter, president of the Parents Television Council, which monitors programs for indecency, in a statement. "The industry was able to forum-shop and find two federal judges in New York City to impose their will on the nation. The court's decision runs contrary to nearly 80 years of jurisprudence about the publicly-owned airwaves, not to mention the overwhelming sense of the nation. Community decency standards should not be decided by two judges in New York."

Others who side with the FCC, although discouraged by the outcome, are still optimistic in that the ruling does not completely eliminate the new decency standards. The FCC will still have a chance to revise and fix what may be unclear as of now.

"Thankfully, the two judges who were in the majority and who were clearly in sympathy with all of the TV networks' arguments in the case, did not take the further step of invalidating the broadcast indecency law altogether," said Robert Peters, president of media watchdog Morality in Media, in a statement. "The Court of Appeals' decision also provides the FCC with another opportunity to justify its new policy."

As an alternative for now, the FCC chairman explained that parents should at least be able to have more control over what their children can watch and that consumers should have more choice as to what goes into their cable. In that way, both sides can be happy.

"Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns," concluded Martin.