Appeals court presses FCC on indecency standards

by Paul Thomasch and Martha Graybow, Reuters

A U.S. federal appeals court on Wednesday sharply questioned the Federal Communications Commission about how it decides what constitutes indecency, in the first major courtroom showdown in years over broadcasting standards.

The FCC ruled in March that News Corp.'s Fox television network had violated decency regulations when singer Cher and actress Nicole Richie uttered expletives during the 2002 and 2003 Billboard Music Awards' shows.

Fox challenged the ruling, arguing that the government's standard was unclear and that the decisions contradicted findings in past cases.

In a hearing before the U.S. Court of Appeals for the Second Circuit in New York on Wednesday, a panel of judges pressed the government on why certain words should be considered indecent in an awards show broadcast, but not in other circumstances such as news programs.

Judge Peter Hall noted that the appeals hearing -- which featured many of the expletives uttered aloud by the Fox lawyer and the judges themselves -- could be replayed on the nightly news.

"Is that going to be subject to FCC hand slapping?" he asked Eric Miller, the FCC's deputy general counsel.

Miller responded that context must be taken into account to decide indecency. In the case of a news segment on the hearing, he argued, the questionable words would not be used to "pander, titillate, or for shock value."

A Fox lawyer, Carter Phillips, though, argued that the FCC's standards were arbitrary and a dramatic departure from the commission's prior policy.

"The commission hasn't come up with an adequate justification for a 180-degree reversal," Phillips said.

While no fines were issued in the Billboard incidents, the FCC put broadcasters on notice that they may not evade penalties in the future.

President George W. Bush earlier this year signed into law a measure raising maximum fines tenfold to $325,000 for future violations, in a move to crack down on broadcasters pushing the envelope with riskier content.

The FCC last month backed down from two other cases involving fleeting profanity. It decided an expletive on a CBS morning program did not violate its rules because it was a news interview and dropped another case against an ABC station because the complaint came from outside the viewing area.

In another case, the government fined 20 CBS television stations $550,000 for pop singer Janet Jackson's bare breast flash during its 2004 Super Bowl broadcast. That has drawn a challenge in another court, the U.S. Court of Appeals for the Third Circuit in Philadelphia.

The Second Circuit panel did not say when they would rule on the Fox case.

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