Appeals court grills FCC on indecency standards

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 so-called 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 Corp. 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.

In the Billboard awards case, the judges questioned the importance of whether the expletives were used repeatedly or were only used fleetingly. The FCC lawyer argued that, under certain conditions, one utterance of an expletive can rise to the indecency standard.

"The fleeting nature of a reference does not immunize it," Miller said.

The judges also focused on the FCC's contention it needed to guard the airwaves against indecent material that could be heard by children.

Judge Rosemary Pooler asked whether that role should be left to parents rather than leaving it "the FCC to go galloping to the rescue."

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