By Frank Ahrens
Washington Post Staff Writer
Friday, September 8, 2006
Television broadcasters won a temporary victory yesterday when a federal appeals court told the Federal Communications Commission not to enforce an indecency ruling it imposed on several television shows earlier this year.
The court action is the latest skirmish between the FCC and broadcasters over what can and cannot be said and shown on over-the-air television and radio. The FCC has toughened its indecency actions under Chairman Kevin J. Martin and his predecessor, Michael K. Powell, after several noteworthy incidents in the past few years, including the exposure of Janet Jackson's right breast during the 2004 Super Bowl halftime show.
Broadcasters have argued that they are held to a double standard when it comes to their programming -- cable and satellite channels are not under the FCC's jurisdiction -- and that government regulation of broadcast content has suppressed creativity and is increasingly irrelevant in a 200-channel, Internet world.
In March, the FCC ruled that episodes of ABC's "NYPD Blue" and shows on Fox and CBS violated the agency's indecency rules, which forbid the broadcast of sexual or excretory material between 6 a.m. and 10 p.m., when children are most likely to be watching.
Even though the FCC proposed no fines for the incidents, the networks appealed the ruling, saying the agency had exceeded its authority and set a precedent that would restrain free speech and crimp creative programming.
The penalized shows contained "fleeting" uses of profanity, which the broadcasters argued should not be automatically considered indecent. For example, a 2003 episode of "NYPD Blue" contained the profane word for bull excrement.
In April, the four major television networks and 800 affiliates appealed the FCC's ruling in federal court, asking judges to overturn the indecency judgments. Yesterday, the U.S. Court of Appeals for the 2nd Circuit issued an indefinite stay of the ruling while the judges consider whether to overturn the commission's action. Broadcasters expect a decision next year.
"We are gratified that the court has taken the first step in recognizing the serious First Amendment issues raised by the FCC's new enforcement policies," CBS said in a corporate statement.
The FCC also considered yesterday's ruling a partial victory. The agency said it made the March indecency rulings to give the broadcasters guidelines on what can be said on television. But when the broadcasters complained, the FCC acknowledged that it had not followed its usual procedure in declaring the shows indecent. The agency asked the court to send back the indecency decision so it could be reconsidered, which the court did yesterday.
Nevertheless, the FCC bristled at the court order to stay the indecency rulings.
"Hollywood argues that they should be able to say the F-word on television whenever they want," FCC spokeswoman Tamara Lipper said in a written statement. "The commission continues to believe they are wrong, and there should be some limits on what can be shown on television."