FCC cases stuck in legal limbo

Faced with the expiration of the five-year statute of limitations on the case on April 7, the Bush administration went to court on April 4 to force the stations to pay the combined $56,000 they owed. Fox publicly slammed the FCC for tossing out its appeal on "specious grounds," while an FCC spokeswoman shot back that the network needed to finally "take responsibility for airing indecent programming."

The decision by Fox and the FCC to go to the mat over such a relatively small fine demonstrates the increasing bitterness of the indecency dispute. The case also raises a new legal question -- whether blurring naked images is the equivalent of bleeping foul words -- that could further complicate an issue already hinging on pending court cases.

Then there is the case of Janet Jackson's "wardrobe malfunction." Appellate judges in Philadelphia are expected to issue a ruling soon on CBS' appeal of a $550,000 fine for the incident during the 2004 Super Bowl telecast, which gave viewers a momentary glimpse of the singer's naked breast. Supreme Court justices soon will be reading legal briefs riddled with the f-word and the s-word as they prepare for oral arguments this fall on the Bush administration's appeal of the June court ruling covering so-called fleeting expletives.

The Supreme Court's decision could dramatically reshape the rules for what's acceptable on broadcast TV and radio. With a ruling not expected until early next year, the FCC is hesitant to make decisions that could be invalidated by the justices.

"Obviously the commission's pending litigation has impacted our ability to take action on a whole host of issues," FCC Chairman Kevin J. Martin said this year.

Federal law and earlier court rulings give the FCC the responsibility to police the public airwaves for "obscene, indecent or profane" content broadcast between 6 a.m. and 10 p.m., when there is a "reasonable risk" children will be watching. Defining those terms has become increasingly controversial.

After Bono, Cher and Nicole Richie used expletives on live award show broadcasts in 2002 and 2003, the FCC adopted a near zero-tolerance policy for the f-word and the s-word. Broadcasters complained that the commission had reversed its own precedent of not issuing fines if the words were unscripted and isolated or, in legal terms, "fleeting." Congress then upped the ante, responding to the public outcry over Jackson's Super Bowl incident by increasing the maximum each station could be fined for an incident tenfold, to $325,000.