Second Circuit Strikes Down FCC’s ‘Fleeting Expletives’ Rule as ‘Arbitrary and Capricious'

A three-judge panel of the Second Circuit U.S. Court of Appeals in New York overturned a Federal Communications Commission (FCC) indecency ruling against Fox Television, finding that the Commission’s new policy against one-time, unscripted use of expletives is “arbitrary and capricious” under the Administrative Procedure Act.

In Fox Television Stations, Inc. et al. v. Federal Communications Commission, 489 F. 3d 444 (2d Cir. 2007), decided June 4, the court vacated two FCC notices of apparent liability issued against Fox for violations of indecency and profanity prohibitions because the commission failed to give a reasoned basis for a significant change in policy, according to the majority opinion by Judge Rosemary Pooler.

The majority stopped short of striking down the “fleeting expletives” policy outright, however. Instead, it remanded the case to allow the FCC to formulate a “reasoned analysis” for its rule change, despite being “doubtful that…the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks.”

Fox Television Stations, Inc., CBS Broadcasting, Inc., and ABC, Inc. were listed as petitioners in the case, along with intervenors NBC Universal, Inc., NBC Telemundo, and Center for Creative Voices in Media, Inc., a nonprofit organization of professional writers, directors, producers, performers, and musicians.

Judge Pierre Leval wrote a dissent to the 2 to 1 decision.

Specifically at issue were “fleeting expletives” broadcast live by Fox at the 2002 and 2003 Billboard Music Awards. In 2002, upon receiving an award, actress and singer Cher said, “People have been telling me I’m on the way out every year, right? So f*ck ‘em.” In 2003 presenter Nicole Richie made reference to her popular television show, saying, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow sh*t out of a Prada purse? It’s not so f*cking simple.”

The FCC received complaints after both broadcasts and issued notices to Fox that it was in violation of the commission’s new policy prohibiting the broadcast of “fleeting expletives.” The FCC had also found broadcasts of ABC’s “NYPD Blue,” CBS’s “The Early Show,” and NBC’s broadcast of the 2003 Golden Globe Awards indecent and profane for similar utterances. The FCC later reversed its position on “NYPD Blue” and “The Early Show.” (See “FCC Backtracks on Some Indecency Rulings, Continues to Pursue Others in Court” in the Fall 2006 issue of the Silha Bulletin.)

According to Pooler’s majority opinion, the notices issued by the FCC in these cases clearly demonstrated a change in policy, as the networks contended in oral arguments and in briefs filed with the court. (See “Broadcasters Challenge Indecency Standards” in the Winter 2007 issue of the Silha Bulletin for more on the oral arguments.)

In accordance with the Administrative Procedure Act, 5 U.S.C. section 706, under which the FCC operates, administrative agencies are free to revise rules and policies at their discretion, as long as the changes are not “arbitrary and capricious.” This term was defined in Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) as meaning that “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

The majority said that the FCC’s reliance on a “first blow” theory to restrict fleeting expletives was problematic.

In the landmark broadcast indecency case FCC v. Pacifica Found., 438 U.S. 726 (1978), the court rebutted the notion that radio listeners could simply “switch off” offensive material. “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow,” the majority in Pacifica said.

The FCC relied on this idea in a remand order issued in the instant case, saying “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children) to take ‘the first blow.’”

Pooler’s majority opinion said that the FCC provided no justification for what was a sudden change in course. In the thirty years since the Pacifica ruling, the FCC had consistently upheld the notion that fleeting expletives would not result in sanctions against broadcasters.

Moreover, Pooler said, “the ‘first blow’ theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives.”

In a number of cases, including the reversal of position on “The Early Show” broadcast and an uncensored broadcast by ABC of the film “Saving Private Ryan,” the FCC apparently made exceptions to the “first blow” rule. “The Early Show” was exempted because it was a “bona fide news interview,” according to the FCC, and “Saving Private Ryan” was exempted because deleting the expletives uttered in the film “would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.”

“The record simply does not support the position that the Commission’s new policy was based on its concern with the public’s mere exposure to this language on the airwaves,” said the majority opinion.

The majority also dismissed the FCC’s contention that “given the core meaning of the ‘F-Word,’ any use of that word or a variation, in any context, inherently has a sexual connotation,” which, Pooler said, “defies any commonsense understanding of these words.”

Because the court agreed with the networks’ argument that the FCC’s rules were “arbitrary and capricious,” it said it did not consider it necessary to reach other problems the networks raised. However, in dicta, the majority opinion addressed constitutional challenges to the “fleeting expletives” policy.

“We question whether the FCC’s indecency test can survive First Amendment scrutiny,” Pooler said. “We are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.”

“Indeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified ‘context’ of a broadcast indecency,” the majority said.

The majority said constitutional challenges were “further buttressed” by the U.S. Supreme Court’s finding unconstitutionally vague a similarly worded Internet indecency regulation in Reno v. ACLU, 521 U.S. 844 (1997), as well as changes in technology which have made the broadcast media less “uniquely pervasive” and also provided the FCC with less restrictive options for controlling the broadcast of indecency, such as the V-chip and parental ratings systems.

“It is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television,” said the majority opinion.

Leval’s dissent said the FCC “gave a sensible, although not necessarily compelling, reason” for what he called a “relatively modest change of standard.” He criticized the majority’s main argument, saying that the FCC’s inconsistent application of the new policy did not make it an irrational policy.

“What we have is at most a difference of opinion between a court and an agency,” Leval wrote. “Because of the deference courts must give to the reasoning of a duly authorized administrative agency in matters within the agency’s competence, a court’s disagreement with the Commission on this question is of no consequence.”

FCC Chairman Kevin J. Martin told The Washington Post he was “disappointed” in the court’s ruling.

“I think the commission had done the right thing in trying to protect families from that kind of language, and I think it’s unfortunate that the court in New York has said that this kind of language is appropriate on TV,” Martin said.

According to The Washington Post, Fox spokesman Scott Grogin released a statement that said, “We are very pleased with the court’s decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment.”

On July 19, the Senate Commerce Committee approved a bill that would effectively reverse the Second Circuit’s decision.

The “Protecting Children from Indecent Programming Act,” S. 1780, is sponsored by Senator Jay Rockefeller (D-W.Va.), and would amend the Public Telecommunications Act of 1992 (47 U.S.C. 303 note), requiring the FCC to “maintain a policy that a single word or image may constitute indecent programming.”

According to a July 30 Broadcasting & Cable story, the FCC decided not to request an en-banc review of the Second Circuit decision. The deadline to file a petition for certiorari with the U.S. Supreme Court is September 4.

– Patrick File, Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on October 21, 2009 1:46 PM.

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