Today, that ruling is all the legal guidance the FCC has to go on as it carries out its legal responsibility to patrol the public airwaves. If context matters, current and former FCC officials say, then it's impossible to draw stark lines between what's always allowed and what's not.
"If you truly believe in context, it's hard to give too-specific direction," said Abernathy, the former commissioner. "Words that may be appropriate in 'Saving Private Ryan' might be inappropriate in an episode of 'Friends.' "
One current commission official, who asked not to be named because of the pending litigation, accused network executives of being inconsistent when they complained about the gray areas that contextual analysis of content inevitably create.
"They've asked us to take into account context," the official said, "and then we take into account context and they say, 'No, we need bright lines.' "
FCC Chairman Kevin J. Martin was just as critical this week , telling members of the National Assn. of Broadcasters at the trade organization's annual convention that there should be no confusion about indecency standards because they haven't changed since 1978.
Tim Winter, executive director of the Parents Television Council, whose 1.1 million members have helped flood the FCC with indecency complaints in recent years, said the FCC and his own group want consistency.
"But to hear the broadcasters say all they want is consistency is bogus," Winter said. "All they want is no rules."
Notably, the networks were able to launch their recent challenge because of the FCC inconsistency they so revile.
In the past, the agency's indecency decisions have been famously difficult to challenge in court because the commission's multilayered bureaucratic process can drag on for years. Courts have been loath to adjudicate cases that have not yet been resolved by the FCC.
But in handing down a mixed bag of rulings last month on a bundle of indecency cases, some say the FCC left itself open to a challenge.
Again, it was all about words. Rock star Bono had uttered the F-word on the 2003 Golden Globe telecast. The FCC's staff concluded in October 2003 that Bono had not violated broadcast standards because he used the word as an adjective, not to describe sexual "organs or activities."
In March 2004 -- just one month after the tremendous public outcry that followed the brief exposure of Janet Jackson's breast during the 2004 Super Bowl halftime telecast -- the commission reversed its staff's finding on the Bono incident.
In response to a request by the Parents Television Council that the staff's decision be reviewed, FCC commissioners determined that "any use of that word or a variation, in any context, inherently has a sexual connotation."
But the FCC realized it had a problem: it would appear unfair if it levied fines for similar incidents that took place before March 2004. Thus, last month's muddle: The commission ruled that four network broadcasts contained indecent or obscene material, but said it proposed no fines because the shows aired during a period when the FCC "had suggested that the isolated use of an offensive word like the 'F-word' is not indecent."
Immediately, network attorneys saw their chance. By filing notices of appeal in federal circuit courts in Washington and New York, they set the issue on a possible course to the Supreme Court, where a new generation of justices, such as John G. Roberts Jr. and Samuel A. Alito Jr., may get the chance to help set 21st-century rules for the indecency word game.
"At some point the judges say, 'Enough is enough. Our schizophrenic 1st Amendment policy in this country makes no sense,' " said Adam Thierer, a senior fellow at the Progress and Freedom Foundation, a Washington think tank. "This case may be a chance for the court to reassess its vision."
Blair Levin, an FCC chief of staff in the mid-1990s and now a media regulatory analyst with investment banking firm Stifel, Nicolaus & Co., agreed.
"At some point in time, it is good to put the rubber to the road," he said. "Now is the time."
