Posted on May 16, 2009 by David Oxenford

Janet Jackson Case Sent Back to Court of Appeals - Could There Be An Even Greater Impact on Broadcast Regulation?

In light of the recent decision upholding the FCC's right to sanction licensees for violations of the FCC's Indecency rules for "fleeting expletives" in the Golden Globes and Billboard music awards, i.e. isolated profanity on the airwaves, the Supreme Court also remanded the Janet Jackson case to the Court of Appeals.  The one sentence remand (see page 2 of the list of orders) was so that the Court of Appeals could consider the impact of the fleeting expletives case on the Court of Appeals decision throwing out the FCC's fine on CBS for the fleeting glimpse of Jackson's breast during the Super Bowl half-time program.  The Third Circuit Court of Appeals that heard the Janet Jackson case had reached a decision very similar to the Second Circuit's decision in the Golden Globes case - finding that the FCC had not justified its departure from a policy of not fining stations for fleeting instances of prohibited speech or pictures, where the words or pictures were isolated and their broadcast was not planned by the station.  Given that the Supreme Court has remanded the case to the Court of Appeals, the lower court will now need to consider the same constitutional issue that the Second Circuit will consider in the Golden Globes case - while the FCC may not have violated administrative procedures in justifying its actions, are the FCC's indecency rules so vague and enforced in such a haphazard manner that they chill free speech or are otherwise unconstitutional?  Based on an analysis of the various concurring and dissenting opinions in the Golden Globes case, the Supreme Court might well decide the constitutionality issue against the FCC.  Could the final ruling in these cases have an impact far beyond the indecency question?

Two of the Davis Wright Tremaine attorneys involved in some of the indecency cases have written this memo, summarizing the Supreme Court decision in the Golden Globes case - pointing out how Justice Thomas seemed to imply that the constitutional basis of the FCC decision was suspect - even though he sided with the majority in finding that the FCC was justified in its administrative decision to find violations.  Justice Thomas seems ready to come down against the FCC on the constitutional issue were it to be squarely presented, questioning whether the Red Lion decision, justifying lesser First Amendment protections for broadcasters than other media outlets based on frequency scarcity, has continuing vitality.  Were this precept underlying the regulation of broadcast content to be undermined, the justification for much FCC content regulation could be in doubt.

Should the scarcity doctrine underlying the justification for allowing the FCC to treat broadcasters differently from other media fall, a decision in one of the indecency cases could have a broad impact on many of the other content regulations that are either already in place or are in the works - including the proposed localism rules, the potential resurrection of the Fairness Doctrine and perhaps even political broadcasting rules.  Yet some fear that such a broad decision could also erode certain benefits that broadcasters have received from being considered public trustees - such as the freedom from spectrum fees, cable carriage rights and some of the FCC policies that have the effect of limiting the movement of stations which, in some cases, may reduce competition.  Yet, through the years, many of those protections have eroded, and others are justified by the service that broadcasters provide - whether or not the Red Lion doctrine still applies.  Broadcasters may be willing to accept the trade off in order to be free of the kinds of content regulation that have hobbled them for so long - and which threaten to become more onerous under a new FCC (see, for instance, our post on the suggestion for a shorter license renewal term to allow for more review of a broadcaster's "public interest" performance). 

This issue could become very important to broadcasters as the indecency issue continues to unfold in this Janet Jackson case and many of the other indecency cases now pending before the Courts. 

 
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Posted on April 28, 2009 by David Oxenford

Supreme Court Upholds FCC Process in Deciding Fleeting Expletives Were Indecent, But Sends the Case Back to Court of Appeals to Decide Constitutionality

In a decision released today, the US Supreme Court upheld the FCC determination that fleeting expletives in the televised broadcasts of the Golden Globes and Billboard Music Awards violated the FCC's indecency rules.  In this case, called Federal Communications Commission v Fox Television Stations, Inc., the Supreme Court overturned the decision of the Second Circuit Court of Appeals, which had found the FCC decision to be arbitrary and capricious. The Supreme Court, in a 5-4 decision, determined that the FCC had adequately justified its departure from prior decisions in determining that it could sanction a station for a single "F-word" or "S-word" broadcast on that station outside of the 10 PM to 6 AM safe harbor.  However, the Supreme Court specifically declined to rule on the constitutionality of the indecency finding, as the Second Circuit had not made its decision on that ground.  The Supreme Court sent the case back to the Second Circuit for further consideration, recognizing that the constitutional issues with the FCC's enforcement policy might well be back before it again, "perhaps in this very case."

Thus, this decision was made on a very narrow basis - that the FCC had justified its decision to change its prior policies to find that a single fleeting expletive was actionable.  Decisions of administrative agencies like the FCC are given great deference by the Courts, as long as the agencies provide a rational basis for their decision, and as long as their decisions do not violate their statutory mandate or the constitution.  Here, the Court found that the Commission had provided a rational explanation of its departure from prior precedent., and had otherwise provided an explanation of its decision, so the Court was willing to find that the FCC had the power to make the decision that it did, overturning the Second Circuit's conclusion that the decision had not been rationally justified. 

The Supreme Court is often unwilling to make a sweeping decision when it can decide a case on narrow grounds.  Here, the Second Circuit had decided the case solely on the basis of its perception that the FCC has not provided a rational basis for its decision.  The Second Circuit had a discussion of the constitutionality under the First Amendment of the FCC's decision, and stated that it questioned whether the decision met constitutional muster, but because it threw out the FCC decision on the administrative law question, it did not finally decide the constitutional issue.  Thus, the Supreme Court, despite urging from the broadcasters in the case, declined to rule on the constitutional issue - sending it back to the Second Circuit for further consideration.

There were several concurring and dissenting opinions in this case - and we will write more about those discussions at a later time.  But, for now, while the Court has spoken, expect to hear more about the FCC's indecency policies in subsequent decisions, as the final word on the constitutionality of the policies has not yet been spoken. 
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Posted on July 28, 2007 by David Oxenford

New Legislation Proposed to Overturn Court Decision on Indecency - Let's Worry About the Constitution Later

Last month, we wrote about the US Court of Appeals throwing out the FCC’s decision to issue fines to broadcasters for the use of an occasional “fleeting expletive,” i.e. one of those impolite words that once in a while will slip onto a broadcast station’s airwaves, most usually in a live and unscripted program. The Court looked at the FCC’s decisions in this area and determined that they were inconsistent and did not provide the guidance that a broadcaster needs to determine what is and what is not permitted on the airwaves. Thus, the fines were thrown out as the Court found the FCC's decisions to be arbitrary and capricious.  In an attempt to reinstate the FCC’s authority to regulate in this area, Senator Sam Brownback of Kansas, the author of the legislation which raised potential broadcast fines to $325,000 per violation of the indecency policy, last month suggested that he would introduce legislation that would overturn the Court action.  That proposal was preempted by Senate Commerce Committee, which earlier this month approved a bill introduced by Senator Rockefeller which would, very simply, state that the FCC had the jurisdiction to fine stations for a single word or phrase that they broadcast.  While the bill was approved by the Committee, the full Senate and the House of Representatives would need to approve the legislation before it could become law.

The proposal to give the authority back to the FCC to fine a station for an isolated utterance  is possible in theory, as the Court decision was based on the lack of consistency, clarity and guidance that the FCC provided to broadcasters about its standards, and not based on constitutional grounds.  However, reading the Court decision, one can see that the Court went out of its way to question the constitutional basis of the FCC regulation in this area. See our summary of the decision, here and here. A piece of Congressional legislation can reverse a Court ruling which was based on statutory interpretation, but it cannot reverse a decision that is based on a finding that a government action is unconstitutional. A constitutional amendment - which is obviously very rare -  is necessary for that.

Thus, given the Court’s questions about the constitutional basis of the FCC’s authority to regulate indecency, passage of this legislation would seem to simply open the door to another Court review of the validity of the legislation and, if the recent Court case is any indication, a possible determination that the law was unconstitutional.   Of course, proponents of the bill will point out that the court decision was that of one Court - the US Court of Appeals for the Second Circuit based in New York, and is binding only in that Circuit.  Unless and until the Supreme Court rules on the issue, other Courts of Appeal in other Circuits, if presented with a similar issue in  a different case, could rule differently, though the Second Circuit decision may quite well present guidance to those Courts. 

But it might not take new legislation to reach the issue of the constitutionality of the FCC's indecency rules, as the appeal of the FCC fines in the Janet Jackson case is pending before the Courts now.  From that case, we may well see further clarification on the FCC’s ability to regulate in this area later this year.  And that guidance might well result in the resolution of the many cases still pending at the FCC. So watch for these issues to develop as the year progresses.
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