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.


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

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. 


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

On Monday’s edition of Morning Joe on MSNBC, host Joe Scarborough, while recounting a story about Obama Chief of Staff designate Rahm Emanuel, dropped the "F-bomb" – seemingly without even realizing that he did it.  He genuinely looked shocked after being told that he had not used the euphemisms that we’re using here, and apologized profusely, apologies that were even posted on the MSNBC website later in the day.  While the cast joked about the FCC fines that would be imposed, and discussed the legal ramifications about this incident, none seemed to recognize that cable – even basic cable – has not been subject to the same indecency regulation as over-the-air television, even though most basic cable networks generally observe the same standards observed by broadcasters to avoid offending their audiences (and perhaps inviting new attempts to regulate their operations.

Cases have generally held that cable, being a pay medium invited into the household, and with filtering technologies that allow particular channels to be blocked, does not have the same intrusive nature as the broadcast medium which comes in free to any house with a TV set and an antenna.  And, until recently when the V-Chip was introduced, over-the-air television did not have the same ability to block access to adult content.  It is interesting that this incident occurs only one week after the Supreme Court held its oral argument on the fleeting expletive case deciding if the inadvertent, unscripted use of a profanity should be subject to a fine.  If nothing else, this incident shows that mistakes happen even in the most unexpected places – who would expect that the host of a morning television program would slip up and let fly with an improper word?  This incident, and the cases before the Supreme Court, do not involve intentional, repeated use of profanity, like the George Carlin routine about which we wrote here, but instead just a fleeting isolated use of one of those "bad" words.  The FCC simply cannot demand perfection from its licensees without demanding perfection from society at large, which is clearly beyond the FCC’s jurisdiction. 


Continue Reading Joe Scarborough Drops the F-Word On Morning Joe – Lucky it Was on Cable

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. 


Continue Reading The Regulation of TV Programming for Children – Embedded and Interactive Advertising, Violence, and Ratings

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.


Continue Reading Supreme Court Agrees to Review Fleeting Expletives Case – Could FCC Extend Indeceny to Mobile Media?

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.


Continue Reading Congress Tries to Overturn Second Circuit While Third Circuit Hears Janet Jackson Indecency Case, and “The War” Is Censored

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.


Continue Reading New Legislation Proposed to Overturn Court Decision on Indecency – Let’s Worry About the Constitution Later

Just as the FCC issued its order to implement the statutory increase in the amount of indecency fines, raising them to $325,000 per violation (see our comment, here), its enforcement of its indecency policy may be dead in its tracks.  A three judge panel of the US Court of Appeals for the Second Circuit, in a 2 to 1 decision released today, rejected the FCC’s actions against a number of television networks for broadcast indecency.  The FCC actions were in the context of "fleeting utterances," i.e. the use of specific words that the FCC determined were indecent whenever they were used.  The Court rejected the FCC decision as being arbitrary and capricious, as the FCC decisions overturned without sufficient rational explanation years of FCC precedent that had had held that the isolated use of these words was not actionable.  The FCC actions were sent back to the FCC for further consideration to see if the Commission could craft a decision that provided a rational explanation for this departure from precedent.

However, this may prove to be impossible.  While the Court’s decision was based on the FCC’s failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions.  The Court pointed to the inconsistent decisions of the FCC – fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS’  The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS’ morning show.  In the Survivor case, the Court indicated particular confusion, as the Commission went out of its way to say that there was no blanket exclusion of news programming from the application of its indecency rules, but then it proceeded to find the softest of news – the Survivor cast-away interview – as being of sufficient importance to merit exclusion from any fine.  The Court felt that these decisions were so conflicting that a licensee would not be able to decide whether a use was permissible or not – and that such confusion, leaving so much arbitrary discretion in the hands of government decision-makers as to where to draw lines between the permissible and impermissible, would not withstand constitutional scrutiny.  It would have a chilling effect on free speech – and could be enforced in an arbitrary manner that could favor one point of view over another.


Continue Reading Second Circuit Throws Out FCC Indecency Fines