Appeals court grills FCC on indecency standards

NEW YORK (Reuters) - A U.S. 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 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 the appeals hearing -- which featured the expletives uttered aloud by the Fox lawyer and the judges themselves -- was being filmed and 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 the FCC's standards were arbitrary and a dramatic departure from the commission's prior policy.

"We're talking about a 180 degree change in protected First Amendment activities," he said.

Judge Pierre Leval said he was satisfied the FCC adequately explained its standard.

"It seems to me they explain why they take the position they take," he said of the commission's tightened rules.

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