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FCC's Indecency Rules Put on Hold

A court temporarily bars the agency from using stricter standards pending a challenge.

September 08, 2006|Jim Puzzanghera | Times Staff Writer

WASHINGTON — A U.S. appeals court Thursday temporarily applied the brakes to the Federal Communications Commission's indecency crackdown, barring enforcement of some tougher standards while judges consider a legal challenge by the four broadcast TV networks and their affiliates.

The court action stems from a March FCC ruling that uttering certain expletives such as the F-word and the S-word, even in isolated instances, was indecent. Combined with a tenfold increase in maximum fines that took effect this summer, the agency's recent actions have made broadcasters hesitant to air controversial programs and quick to suspend or fire employees who accidentally blurt out expletives on the air.

Some network executives said Thursday's ruling by the U.S. 2nd Circuit Court of Appeals in New York shows they have a good chance of overturning the new precedent.

"The 2nd Circuit, in granting our stay request, has recognized the serious 1st Amendment issues that are raised in this appeal and the chilling effect of the FCC's indecency enforcement scheme," News Corp. said in a written statement.

In March, the FCC ruled on a number of indecency complaints by consumers who had objected to programs that aired between February 2002 and February 2004. The four networks sued the agency in April charging that the March ruling was unconstitutional.

John Crigler, a Washington communications attorney, said the court ruling was good news for broadcasters. It temporarily halts the FCC from basing future indecency fines on the stricter standards it set in four of those cases. The FCC found that episodes of ABC's "NYPD Blue," and CBS' "The Early Show," along with Fox's broadcasts of the 2002 and 2003 "Billboard Music Awards" violated indecency standards because of the way expletives were used.

"The court is worried that this profanity standard is based upon a constitutionally faulty premise and it doesn't want the commission going out and issuing new rulings until this standard is tested,'' Crigler said.

An FCC official downplayed the significance of the court's ruling, saying it did not give broadcasters a free pass to broadcast indecent material.

"Hollywood argues that they should be able to say the F-word on television whenever they want,'' said Tamara Lipper, an FCC spokeswoman. "The commission continues to believe they are wrong, and there should be some limits on what can be shown on television."

Blair Levin, a former FCC chief of staff, said Thursday's court decision was one step in a long legal process. "The court is clearly indicating they [the broadcasters] have a very legitimate complaint. That doesn't indicate they're going to win,'' said Levin, a media regulatory analyst with brokerage house Stifel, Nicolaus & Co.

As a result of the FCC's recent rulings and the higher fines, at least two dozen CBS affiliates plan to replace or delay airing "9/11," an award-winning documentary of the Sept. 11 terrorist attacks. The program aired in 2002 during prime time with no fines, but that was before stricter indecency standards were in place. The stations are worried that coarse language in the program could result in fines after the CBS broadcast Sunday night.

Despite Thursday's court decision, Sinclair Broadcast Group, Inc. didn't reverse its decision to delay the documentary until after 10 p.m. on its CBS affiliates in Portland, Maine, and Cedar Rapids, Iowa. Indecency rules don't apply after 10 p.m.

"I don't think the case goes nearly far enough to provide the certainty that we would need that we wouldn't be fined,'' said Barry M. Faber, Sinclair's vice president and general counsel.

The FCC's March indecency rulings covered 10 different programs, setting a higher bar for when the use of expletives on air is acceptable. The networks had sought a stay of the entire ruling, but the FCC agreed only to a narrower stay. The court also granted on Thursday the agency's request to return the four indecency cases involving "NYPD Blue," "The Early Show" and "The Billboard Music Awards" to the commission for additional review for 60 days.

The FCC is taking the four cases back to correct potential procedural matters that could create problems for the agency and the networks later in court.

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