By Paul Thomasch and Martha Graybow
Reuters
Wednesday, December 20, 2006; 1:19 PM
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.
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.