WWW- A U.S. appeals court on Thursday put on hold a Federal Communications Commission ruling that four television broadcasts of profanity violated decency standards and gave the agency two months to consider rebuttals by the broadcasters.
The U.S. Court of Appeals for the Second Circuit stayed enforcement of the agency’s March decision that profanities uttered on ABC’s “NYPD Blue,” CBS’s “The Early Show” and the 2002 and 2003 Billboard music awards shows on Fox were indecent. The FCC did not propose any fines for the incidents.
The shows included variations of “s—” and “f—.” The FCC based its decision on a 2004 FCC ruling that the fleeting use of the word “f—ing” by U2 rock singer Bono during the 2003 Golden Globe Awards was indecent.
The four major television networks — ABC, CBS, Fox and NBC — and their affiliate associations in April joined forces to ask an appeals court in New York to throw out the FCC’s ruling as unconstitutional, arbitrary and capricious.
The appeals court stayed the decision “which applies the standards announced in the Golden Globe Order” and also granted the FCC’s request for the case back for 60 days. The FCC acknowledged that it failed to give the networks an opportunity to respond to its findings that the shows violated decency standards and asked the court to give it time to consider their arguments.
U.S. regulations bar radio and television broadcast stations from airing obscene material. The rules limit broadcasters to airing indecent material, such as profanity and sexually explicit content, during late-night hours when children are less likely to be in the audience.
The regulations do not apply to cable and satellite providers.
“The second circuit in granting our stay request has recognized the serious First Amendment (free speech) issues raised in this appeal and the chilling effect of the FCC’s indecency enforcement scheme,” said Andrew Butcher, a spokesman for News Corp. which owns the Fox network.
ABC is owned by the Walt Disney Co., CBS is owned by CBS Corp. and NBC is owned by General Electric Co.
The stay could aid CBS in particular because on September 10 it plans to rebroadcast the “9/11” documentary that recounts the 2001 attacks in New York and includes coarse language.
About a dozen CBS affiliates have decided not to air the show for fear of receiving stiff fines from the FCC, and a dozen others plan to air the film later at night when more mature content is generally allowed.
“It cuts the heart out of the FCC’s strengthened enforcement effort for the time being,” said Andrew Schwartzman, president and chief executive of the Media Access Project, a consumer advocacy group that intervened in the case on behalf of a group of writers and directors.
Broadcasters are fearful of crossing the decency line because fines for violations increased tenfold to $325,000 earlier this year, an attempt to crack down on broadcasters.
The FCC welcomed the 60-day review period but also continued challenging broadcasters.
“Hollywood argues that they should be able to say the f-word on television whenever they want,” said FCC spokeswoman Tamara Lipper. “The commission continues to believe they are wrong, and there should be some limits on what can be shown.”