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.