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.