Posted on July 16, 2010 by Brendan Holland

Further Analysis on the 2nd Circuit Decision to Invalidate the FCC's Policy on "Indecent" Broadcasts

As we wrote earlier this week, the US Court of Appeals for the Second Circuit on Tuesday struck down part of the FCC's indecency rules, finding that the rules were too vague and had an undue chilling effect on broadcasters.  DWT's First Amendment experts have now taken a closer look at the Court's decision in Fox Television Stations v. FCC and have released an advisory with further analysis.  The advisory, available here, provides further details and insight into the decision from Robert Corn-Revere and Ronald G. London.  Given that there are several other indecency cases still pending before the courts, including the Second Circuit, it will be interesting to see what impact this decision has on those pending cases and whether the FCC's indecency rules can ultimately withstand constitutional scrutiny. 

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Posted on July 13, 2010 by David Oxenford

Court of Appeals Strikes Down FCC Indecency Rules

The US Court of Appeals for the Second Circuit today struck down the FCC's indecency rules, finding that the rules were so vague as to not put broadcasters on notice of what programming was prohibited and what was permitted.  Today's decision was reached following a remand of this case to the Second Circuit by the Supreme Court.  The Supreme Court's decision did not resolve all questions about the FCC's rules, instead only deciding that the lower court's prior decision voiding the rules was not justified.  The prior Second Circuit decision had not been decided on a constitutional basis, but instead it was based on the Court's perception that the FCC had failed to justify its departure from prior FCC precedent that had excused broadcasters from liability for fleeting expletives.  The Supreme Court found that the departure from prior precedent was justified.  The Supreme Court left open the issue of whether the rules were constitutional, and sent the case back to the Second Circuit for further consideration.  In today's decision, the Second Circuit takes up the constitutional review left open by the Supreme Court, and has determined that the vagueness of the FCC's guidelines and the inconsistency in its decisions chilled the First Amendment rights of broadcasters in violation of the First Amendment. 

The Court, in reaching its decision, looked at a number of the Commission decisions on indecency which have arisen since the Commission started its enhanced enforcement of these rules in 2003.  After reviewing the cases, the Court felt that the FCC could not logically articulate when the use of certain prohibited words would be punished.  In one passage, the Court asks how the FCC can find that the broadcast use of expletives in the fictional movie Saving Private Ryan were permissible as the words were essential "to the realism and immediacy of the film experience for viewers", yet at the same time find that these same words did not rise to that same level of importance when spoken by real people in the PBS documentary The Blues.  The Court then cited numerous instances where broadcasters felt that their speech had been chilled - often refraining from airing significant programming for fear of FCC fines.  For instance, the Court cited one station that refused to cover a political debate as a candidate had previously used a forbidden word in a prior debate, and another case where stations did not run a documentary about emergency workers and the 9-11 tragedy as the documentary contained some actual footage from the Twin Towers, where emergency workers used some of those forbidden words. 

So what's next?  No doubt, we have not heard the last of the indecency rules.  The FCC could appeal this case back to the Supreme Court.  Even were the Second Circuit's decision upheld, that would still not be the end of the story, as the Second Circuit left open the possibility that the FCC could craft new rules that would not be so vague as to be unconstitutional.  So we may well be hearing about the controversy about the FCC's indecency rules for many years yet to come.  Watch this space for more further developments.
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Posted on September 29, 2009 by David Oxenford

Broadcast Indecency Can't Hide - A Candidate for Governor, a TV Newscaster, Saturday Night Live and the Clothing Malfunction

In the past several weeks, broadcast indecency has been back in the news - seemingly almost on a daily basis.  First, there was the story about Bob McDonnell, the Republican candidate for Virginia governor who, seemingly inadvertently, dropped the f-bomb, perhaps as a result of tripping over his tongue during a news interview on a news radio station in Washington.  Then came the extensive coverage of New York City TV newscaster Ernie Anastos who, during on-air banter with the weather man, also let the f-word fly - in what was apparently not a slip of the tongue, but perhaps a slip of the brain, where the anchor must have thought that he was somewhere other than on the set of a live TV newscast.  And then this past weekend, an actor on Saturday Night Live let the word fly during the late night program.  These incidents come on the heels of the FCC releasing its statistics on complaints that it had received in the first quarter of this year (reflecting many indecency complaints in the last month), while the Commission has asked the Court of Appeals for the opportunity to reexamine its decision in the Janet Jackson case to determine if any violation of the indecency rules was "willful."  What does all of this activity mean?

The recent well-publicized on-air slip-ups demonstrate how the fleeting expletive, which have formed the basis of a number of recent FCC cases, including the Supreme Court decision upholding the FCC's authority to decide to change its prior holdings and issue fines for such utterances (but leaving open the constitutional questions as to whether the FCC regulation is consistent with the First Amendment), can no longer hide from public examination.  In the past, fleeting expletives were just that - fleeting.  If there was an on-air slip up, people in the audience may have done a double take, trying to decide if they really heard what they thought that they heard.  Often, there would be a shrug of the shoulders and the event would pass.  Not so in today's electronic world.  Now, when a politician or a TV announcer slips up and let's one of those you-can't-say-that-on-TV words slip, the listening public quite often has the opportunity to check out YouTube or some other website to confirm what they did or didn't hear.  As a recent press article about the NY anchor observes, these events become viral.  A similar observation was made today about the SNL skit.  And, when they become viral, the FCC often hears about it in the form of a complaint.  As the FCC does not usually monitor stations themselves looking for indecency, but instead only takes action where a member of the public complains, the viral preservation of these incidents have no doubt resulted in far more FCC complaints that would have otherwise occurred - certainly more than have occurred in the past.

The Janet Jackson incident provides exactly that same kind of case.  How many people actually saw what happened that Super Bowl evening?  Probably not many - the complaints did not start coming in to the FCC until well after the incident, when it had been run over and over again (often in slow motion) on television programs and on the Internet.  Obviously, indecency on the Internet is not within the FCC's jurisdiction, but it is these Internet clips (and the subsequent publicity given to them by some activist groups) that seem to spur complaints to the FCC.  Without complaint, there would be no FCC action, and in connection with network programs, many stations would probably never be subject to complaint were it not for the non-broadcast circulation of the miscue. 

The remand of the Janet Jackson case, if the Court allows it, and these new cases, will give the new FCC an opportunity to chart its own course on indecency regulation.  (Of course, the SNL slip up, occurring after 10 PM, should be within the FCC's "safe harbor" where the occasional use of such words is not actionable)  Certainly, the broadcast industry will wait anxiously to see what that course will be.
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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 June 22, 2008 by David Oxenford

The Regulation of TV Programming for Children - Embedded and Interactive Advertising, Violence, and Ratings

In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children's programming.  In a recent Press Release, the Commissioner outlined proposals including the following:

  • Improve the V-Chip and other program blocking technologies
  • Improve ratings information for television programming - including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
  • In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children's programming
  • Restrict interactive advertising directed at children.
  • Convene a summit to explore these issues

In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming.  He also expressed his regrets over the recent decision overturning the FCC's fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC's appeal of that decision).  And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children's programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years.  He cited the Commission's tentative conclusion to ban such ads, as broadcasters form a "portal" for children's entrance to the Internet.  While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children. 

One interesting note is that, in his most recent speech, the Commissioner makes clear that the long-rumored proceeding on embedded advertising has enough votes to be issued, but it is being held up for various unspecified reasons.  Presumably, this proceeding will look at issues including product placement and other instances where consideration is given to a programmer for the mention or inclusion of a product.  Look for that proceeding to be out soon.
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Posted on March 17, 2008 by David Oxenford

Supreme Court Agrees to Review Fleeting Expletives Case - Could FCC Extend Indeceny to Mobile Media?

The Supreme Court has agreed to hear an appeal by the FCC of the "fleeting expletives" case, where the Second Circuit Court of Appeals threw out the FCC actions fining stations for isolated incidents where a profanity was uttered on the air in a live program.  The cases stem from the Golden Globes and Billboard Music Awards, where over-exuberant winners let slip one of those words that you are not supposed to say on TV.  The Court of Appeals found that the FCC had not justified its departure from prior Commission decisions where such conduct was not sanctioned.  The Court also suggested that the Commission's decisions did not give broadcasters enough guidance as to when the use of such words was permissible, and when it was prohibited.  We have written previously about this case a number of times, including here and here.  Should the Court determine that the FCC was justified in acting as it did, this may leave the FCC open to taking new actions in the indecency area - such as the suggestion that one Commissioner recently made that indecency enforcement in connection with video delivered to mobile phones should be explored.

 A couple of words about some of the commentary written about this case.  First, while many stories have stated that this is the first indecency case to reach the Supreme Court in 30 years since the famous Seven Dirty Words  ( or the Pacifica) case, in fact there have been several other more recent cases that have dealt with the indecency issue - though not in the broadcast context.  Cable and Internet indecency rules have been adopted by the FCC or by Congress, and usually overturned as not constituting the least restrictive manner of preventing children from being exposed to "indecent" speech - speech which is constitutionally protected (as opposed to obscenity which has no protection as it has no socially redeeming significance) - but from which children can be sheltered.  However, in the cable and Internet cases, the regulations have been overturned because there were other less restrictive means of limiting children's access to the content, e.g. through filters or restrictions on access to specific channels or websites.

Also, the popular press routinely talks about the "Seven Dirty Words," as if the Commission has always had a list of words that could not be said on broadcast stations.  In fact, there never was a specific list of words that could or could not be said.  Instead, until recently, indecency was judged more by context, making it difficult to determine what was permissible and what was not.   But, until the cases at issue here, the FCC did not routinely fine stations when an expletive slipped onto the air.  Even under the new regime, the FCC permitted stations to broadcast the prohibited words in certain cases where the context warranted it, e.g. in the broadcast of Saving Private Ryan on Veterans Day when introduced by John McCain.  Moreover, even under the recent procedures, the FCC went only so far as to conclude that the "F Word" and the "S Word" were always prohibited (except in the cases like Private Ryan where they were not prohibited), not all seven words that were featured in the George Carlin routine.

The other aspect of this case is the impact that it might have on the FCC and its regulatory efforts.  A decision upholding the Commission's right to regulate indecency - even fleeting expletives - could embolden the Commission to expand its enforcement efforts which, in last year, have been minimal except for the two recent television cases where the FCC was forced to act to avoid statute of limitations issues (see our posts here and here).  As one example of how the Commission could expand its enforcement, in a recent speech, Commissioner Deborah Taylor Tate suggested that the Commission should consider whether it has a role to play in regulating indecency in the mobile telephone environment.  The Commissioner applauded the voluntary efforts of a number of mobile communications companies to limit the distribution of adult content to children, but the threat of FCC intervention was also raised.  No indecency on cell phones in the future?

Thus, the decision of the Supreme Court in this case, which likely will not come until 2009, may have a crucial role to play in all areas of media regulation in the future.  Stay tuned to watch as these issues develop.
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Posted on September 20, 2007 by David Oxenford

Congress Tries to Overturn Second Circuit While Third Circuit Hears Janet Jackson Indecency Case, and "The War" Is Censored

This week, legislation was introduced in the House of Representatives to make a single use of an expletive on a broadcast station subject to sanctions from the FCC.  This parallels legislation that was introduced in the Senate this summer, about which we wrote, here.  The point of this legislation is to overturn the decision of the US Court of Appeals for the Second Circuit which held that the FCC could not levy indecency fines on stations for airing a single isolated "fleeting expletive". As we wrote when the Senate Bill was introduced, the Second Circuit decision overturning the FCC's fines was technically based, not on constitutional issues, but instead on the fact that the FCC had not rationally defended the distinctions that it made as to when to impose fines for the use of an expletive, and when to allow the use of the expletives without sanction (as in the airing of Saving Private Ryan).  The Court also faulted the Commission for not providing guidelines as to what was indecent and what was that were clear enough to alert a broadcaster as to what was permitted and what was not.  When a decision is based on an administrative failure to rationally justify its decision, Congress can pass a law providing that justification.  Here, that would give the FCC permission to fine a broadcaster for the use of a single expletive.  If the decision was constitutionally based, finding that the regulation of the use of fleeting expletives was unconstitutional, then the ability of Congress to pass a law permitting FCC action that the Court found was unconstitutional is severely limited.

However, while not basing the decision on constitutional grounds, the Second Circuit decision did go out of its way to question the constitutionality of the FCC's indecency enforcement, but deciding that it did not need to decide the issue of constitutionality as it had already thrown out the FCC fines.  While the Second Circuit passed on that issue, another court may well reach the constitutional question in the near future.  On September 11, the Third Circuit, the same Court which invalidated many of the FCC's 2003 liberalized multiple ownership rules, heard arguments on the FCC's $550,000 fine imposed on the CBS owned-and-operated television stations for the Janet Jackson breast-baring Super Bowl incident.   CBS, represented by an attorney from our firm, argued that the FCC's indecency rules are unconstitutional.  The Court seemed engaged in the issue, according to press reports, asking many questions.  As the briefs have been filed and the arguments made, the Court decision could come at any time.  Sometimes these decisions can be released quickly, though at other times the final decision can take many months to be written.  Broadcasters will have to wait for this further clarification.

In the interim, broadcasters are not clear on how to apply FCC rules.  In last week's Emmy Awards, Fox used a tape delay, cutting out several uses of words that those monitoring its programs felt could be of concern.  This week, with PBS' airing of The War, the Ken Burns series on World War II, the issue again arises.  In the series, interviewees define the origins of the word "SNAFU" by using the FCC-prohibited "F-word," and use expletives in three other instances.  Because the Second Circuit decision may still be appealed to the Supreme Court, and as the Third Circuit has not yet ruled, several PBS stations have been concerned about the use of these words.  Thus, PBS is reportedly distributing both edited and unedited versions of the programs, leaving the decision as to which should be run in the hands of the local stations. 

The concern over The War highlights the ambiguity and concern over the vagueness of the FCC's standards.  As mentioned above, the FCC has given a  pass twice to the unedited airing of Saving Private Ryan.  One would think that, if a fictional movie about World War II could use the prohibited words, then a PBS documentary about the same subject would be on safe ground using them.  However, when the FCC decided to fine PBS for using these words in its documentary The Blues, where they were seemingly an appropriate part of the narrative of the story being told, stations didn't know where the lines are to be drawn, hence the concern over The War.  Hopefully, the Third Circuit will soon shed more light on the subject but, until then, we may be forced to sit through dead air during the Emmies, The War and other programming.
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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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