The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC’s fine for the Janet Jackson "clothing malfunction" Super Bowl incident. The Court once again rejected the FCC decision – essentially upholding a 2008 decision that had found the FCC’s indecency fine to be an arbitrary departure from prior precedent. The
The FCC’s indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit – essentially finding that the FCC’s policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited. After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court. The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.
This appeal deals with two cases. First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie. Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent. The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue – resulting in $27,500 fines on a number of ABC stations. This decision was also overturned by the Court of Appeals.
As the next broadcast license renewal cycle is about to begin in June (see our post here about that process), the last renewal cycle still has not ended despite the fact that the last renewal application due in that cycle was to have been submitted almost 5 years ago. At the NAB State Leadership Conference held in Washington, DC yesterday, FCC Commissioner Robert McDowell provided statistics about the hundreds of renewals still pending – principally due to indecency complaints against the stations. The FCC will not grant a license renewal application when there is an indecency complaint pending, as the grant of the renewal could preclude the FCC from taking action against the licensee on the complaints filed before the renewal grant. But with indecency enforcement in a holding pattern pending the final resolution of the pending court cases challenging the FCC’s renewal policy (with no immediate end in sight to the uncertainty that surrounds that policy), these renewals are still in limbo. The Commissioner did, however, provide some good news on the indecency front, noting that the Enforcement Bureau had started weeding through all of the pending complaints, dismissing those that were clearly without merit.
The dismissal of indecency complaints that were without merit is a seemingly small, but nevertheless significant, step in weeding out the backlog of renewal applications. The Enforcement Bureau has traditionally not looked deeply into the merits of each of the pending indecency complaints while the Court challenges to the policy were pending, presumably to avoid a waste of resources were the standards to change based on the Court review. But that avoided weeding out some clearly meritless complaints – ones that complained of content that was broadcast during the 10 PM to 6 AM indecency safe harbor, or complaints that were focused on issues that were not prohibited under the FCC’s policy and precedent – such as complaints that really centered on violence, or ones that dealt with innuendo rather than the use of prohibited words or the depiction of prohibited body parts. Up until now, except when there was a sale of a station pending, there was no pressing reason for the FCC to dispose of the complaints. Stations continued to operate, and the pending complaints had little day to day impact. But, with the renewal cycle soon to begin again, the resolution of these issues takes on some urgency.
The Second Circuit Court of Appeals today issued a Summary Order vacating the $27,500 FCC fines imposed on a number of ABC television network stations in the Central and Mountain time zones which had aired, prior to the 10 PM safe harbor, an episode of the television program NYPD Blue on which a woman’s…
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…
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.
Another year is upon us, and it’s time for predictions as to what Washington may have in store for broadcasters in 2010. Each year, when we look at what might be coming, we are amazed at the number of issues that could affect the industry – often issues that are the same year to year as final decisions are often hard to come by in Washington with the interplay between the FCC and other government agencies, the courts and Congress. This year, as usual, we see a whole list of issues, many of which remain from prior years. But this year is different, as we have had a list topped by issues such as the suggestion that television spectrum be reallotted for wireless uses and the radio performance royalty, that could fundamentally affect the broadcast business. The new administration at the FCC is only beginning to get down to business, having filling most of the decision-making positions at the Commission. Thus far, its attention has been focused on broadband, working diligently to complete a report to Congress on plans for implementation of a national broadband plan, a report that is required to be issued in February. But, from what little we have seen from the new Commission and its employees, there seems to be a willingness to reexamine many of the fundamental tenants of broadcasting. And Congress is not shy about offering its own opinions on how to make broadcasting "better." This willingness to reexamine some of the most fundamental tenets of broadcasting should make this a most interesting, and potentially frightening, year. Some of the issues to likely be facing television, radio and the broadcasting industry generally are set out below.
In the television world, at this time last year, we were discussing the end of the digital television transition, and expressing the concern of broadcasters about the FCC’s White Spaces decision allowing unlicensed wireless devices into the television spectrum. While the White Spaces process still has not been finalized, that concern over the encroachment on the TV spectrum has taken a back seat to a far more fundamental issue of whether to repurpose large chunks of the television spectrum (if not the entire spectrum) for wireless users, while compressing television into an even smaller part of what’s left of the television band – if not migrating it altogether to multichannel providers like cable or satellite, with subscription fees for the poorest citizens being paid for from spectrum auction receipts. This proposal, while floated for years in academic circles, has in the last three months become one that is being legitimately debated in Washington, and one that television broadcasters have to take seriously, no matter how absurd it may seem at first glance. Who would have thought that just six month after the completion of the digital transition, when so much time and effort was expended to make sure that homes that receive free over-the-air television would not be adversely impacted by the digital transition, we could now be talking about abolishing free over-the-air television entirely? This cannot happen overnight, and it is a process sure to be resisted as broadcasters seek to protect their ability to roll out new digital multicast channels and their mobile platforms. But it is a real proposal which, if implemented, could fundamentally change the face of the television industry. Watch for this debate to continue this year.
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.
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.
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.