Aug 26, 2010 10:13 PM by Alison Haynes
WASHINGTON (AP) - Federal regulators are appealing a recent
court decision that struck down a 2004 government policy that says
broadcasters can be fined for allowing even a single curse word on
A three-judge panel of the 2nd U.S. Circuit Court of Appeals in
New York threw out the Federal Communications Commission policy
last month, saying it was unconstitutionally vague and left
broadcasters uncertain of what programming the agency will find
The FCC and the Justice Department asked the court Thursday to
reconsider that decision, warning that the ruling appears to
invalidate the FCC's entire approach to regulating indecency over
the airwaves. In a statement, FCC General Counsel Austin Schlick
said the ruling raises "serious concerns about the commission's
ability to protect children and families from indecent broadcast
The FCC wants the three-judge panel or the full court to
reconsider the decision.
The commission has stepped up broadcast indecency enforcement in
recent years - issuing record fines for violations - spurred in
part by widespread public outrage following Janet Jackson's
breast-baring performance during the 2004 Super Bowl halftime show.
The agency also put its so-called "fleeting expletive" policy
in place in 2004 after U2 lead singer Bono uttered the phrase
"f------ brilliant" during a January 2003 NBC broadcast of the
Golden Globes awards show. The FCC said the F-word in any context
"inherently has a sexual connotation" and can lead to sanctions.
The Fox television network, owned by Rupert Murdoch's News
Corp., and other broadcasters challenged the policy in 2006 after
the FCC said a number of television broadcasts from 2002 to 2005
had violated the rules. Those included a December 2002 broadcast of
the Billboard Music Awards in which singer Cher used the phrase
"F--- 'em," and a December 2003 Billboard awards show in which
reality show star Nicole Richie said, "Have you ever tried to get
cow s--- out of a Prada purse? It's not so f------simple."
In its ruling last month, the 2nd Circuit panel said the FCC
policy inhibits speech by forcing broadcasters to "choose between
not airing or censoring controversial programs and risking massive
fines or possibly even loss of their licenses."
The ruling came after the Supreme Court last year upheld the FCC
policy on procedural grounds and returned it to the 2nd Circuit for
consideration of constitutional arguments. The case is widely
expected to go back to the Supreme Court.
In their filing on Thursday, the FCC and Justice Department said
the 2nd Circuit decision is at odds with the landmark 1978 Supreme
Court ruling that upheld the FCC's reprimand of a New York radio
station for airing George Carlin "Filthy Words" monologue,
containing a 12-minute string of expletives, in the middle of the
The Parents Television Council, a group that supports strong
broadcast-indecency rules, praised the FCC's decision to appeal.
"The importance of the broadcast-decency law has become
abundantly apparent as the broadcast networks demonstrate their
desire to push ever-more graphic content at all times of the day,"
Tim Winter, the group's president, said in a statement. "The
airwaves have become a battleground for networks to out-cuss,
out-sex and out-gore each other; and sadly it is children and
families who are in the crossfire."
Both Fox and the National Association of Broadcasters had no