March 22, 2007

The FCC's Indecent Proposal: Where Are We Now?

Holland & Knight Newsletter
Charles R. Naftalin

The Federal Communications Commission (FCC), under Chairman Kevin Martin’s leadership, has continued the clampdown on radio and television programming that is considered indecent or profane. In March 2006, the FCC issued a series of decisions on indecency and profanity that greatly expanded the FCC’s jurisdiction and found a number of television programs to be indecent and/or profane. Those decisions are now the subject of various appeals before the federal courts and the FCC. The following summarizes the current status of the appeals and what to expect in the remainder of 2007.

Federal Court Review Proceedings

The Status of Naughty Words

Fox Television Stations, Inc. v. FCC, Case No. 06-1760-ag (2d Cir. filed Apr. 13, 2006). Fox and others in the television industry are challenging the decisions released in March 2006, in which the programming discussed below was found by the FCC to be in violation of indecency and profanity standards due to use of proscribed words. On appeal, and at the request of the FCC, the court directed the FCC on September 7, 2006, to reconsider various aspects of its March 2006 decisions. On remand, the FCC ruled as follows:

2002 Billboard Music Awards (broadcast December 9, 2002): Cher used a form of the F-word during a live telecast. The FCC affirmed its decision that the episode was indecent.

2003 Billboard Music Awards (broadcast December 10, 2002): In an exchange between Nicole Ritchie and Paris Hilton, Ritchie blurted out both the S-word and the F-word, not using the scripted euphemisms. The FCC affirmed its decision that the episode was indecent.

NYPD Blue (several broadcasts between January 14 and May 6, 2003): Multiple broadcasts contained scripted instances of the term “dick” and the S-word; only the S-word was considered to be actionable. The FCC reversed its decision on procedural grounds because none of the complainants viewed the offending show between 6 a.m. and 10 p.m., the time period during which prior court decisions have authorized the FCC to police the airwaves. (In contrast, the 10 p.m. to 6 a.m. period is the “safe harbor” period during which the FCC does not have jurisdiction to regulate indecent programming.)

The Early Show (broadcast on December 13, 2004): In an interview, a Survivor castaway blurted out a variant of the S-word. The FCC reversed its decision in deference to the broadcast of a “bona fide news interview,” but stopped short of committing to an outright indecency/profanity exemption for news programming.

The FCC’s remand decisions remain before the court. The Second Circuit heard oral argument in December 2006. A decision is anticipated in 2007.

In addition, the court’s remand order stayed the effectiveness of the FCC’s order as it applies to enforcement actions against use of the S-word. That stay remains in effect.

The Status of a Naughty Image

CBS Corporation v. FCC, Case No. 06-3575 (3d Cir. filed July 28, 2006). This is the case seeking appellate review of the $550,000 forfeiture issued against CBS for the Janet Jackson/Justin Timberlake “wardrobe malfunction” during Super Bowl XXXVIII. The parties briefed the merits in December 2006 and oral argument should take place in the near future. A decision is anticipated in 2007.

FCC Review Proceedings

A number of the other March 2006 decisions remain before the FCC under review, including:

The Surreal Life 2 (broadcast February 8, 2004; proposed fine $27,500)

Con El Corazon En La Mano (broadcast October 9, 2004; proposed fine $32,500)

Fernando Hidalgo Show (broadcast October 19, 2004; proposed fine $32,500)

Video Musicales (broadcast between February 2-March 8, 2002; proposed fine $220,000)

The Blues: Godfathers and Sons (broadcast March 11, 2004; proposed fine $15,000)

The Pursuit of D.B. Cooper (broadcast March 15, 2003; proposed fine $27,500)

• episodes of Without a Trace, the Golden Globe Awards featuring U2’s Bono, and Married by America


License Renewals Being Delayed

The FCC has delayed the renewal of hundreds of television licenses, apparently due to indecency complaints. As of this writing, the FCC has not published its reasons for withholding action on the renewal applications, but the Enforcement Bureau has been contacting licensees individually to discuss the reasons behind the delay. Complaints filed against certain episodes of CSI, NCIS, Scrubs and Las Vegas appear to be contributing to the hold up.

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