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Analysis: Ruling Drives Indecency Debate

By JOHN DUNBAR
The Associated Press
Wednesday, June 6, 2007; 5:38 PM

WASHINGTON -- Back in January of 2003, upon learning that his band had won the Golden Globe for best original song, U-2 lead singer Bono cut loose with an exuberantly enunciated expletive _ a word not normally heard on broadcast television.

The singer's outburst at the televised awards show was the starting point of a long-running battle over whether profanity should be permitted to air on broadcast stations, and if so, under what circumstances.

Four-plus years later, the issue is far from being resolved.

On Monday, the 2nd U.S. Circuit Court of Appeals in New York rejected by a 2-1 vote the Federal Communications Commission's policy on how it polices indecent speech on the airwaves.

As the government ponders its legal options, the FCC is stuck, unwilling to act on an unending stream of complaints it receives from the viewing and listening public until the legal issues are resolved. In fact, the FCC hasn't proposed a new fine for indecency since March of 2006.

Among those options: a direct appeal to the U.S. Supreme Court, an action urged by the chairman of the Senate committee that oversees the FCC.

So what does Bono have to do with this? The singer expressed his mood during the awards show by saying "this is really, really f-----g brilliant."

His remark led to a number of complaints at the FCC. But the agency's Media Bureau decided that the utterance was not indecent because the singer was "not describing sexual or excretory activities."

He was instead using the word as an "adjective or expletive to emphasize an exclamation." The agency said in the past, it found that "fleeting and isolated remarks of this nature do not warrant commission action."

The decision received a considerable amount of attention, none of it flattering. Some thought it absurd that the government would countenance use of the F-word as long as it's an adjective.

In March 2004, the agency reversed course, saying that word in any context "inherently has a sexual connotation."

The court in New York was not reviewing the Bono case, but two airings of the "Billboard Music Awards," in which expletives were broadcast over the airwaves that were also declared indecent by the FCC.

The court noted the FCC's about-face, blaming it for "failing to articulate a reasoned basis for its change in policy."

The judges' decision was based on that change in policy, not on constitutional grounds.

Despite that, the two judges went on to write that they were "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."

The argument, known in legal jargon as "dictum," is not relevant to the actual ruling, and that may make it more difficult for the government to take the case directly to the Supreme Court, said Andrew Schwartzman, president and CEO of the Media Access Project, one of the participants in the case on the broadcasters' side.

Schwartzman said the Supreme Court does not review dicta. He called the case a "garden-variety application of routine administrative law principals" where the "constitutional issue is simply not raised."

Not everyone is thinking that way.

Sen. Daniel Inouye, D-Hawaii, in an unusual move, released a statement on the day of the decision stating his hope that the commission "will move swiftly in appealing this case to the Supreme Court." Inouye is chairman of the Senate Commerce, Science and Transportation Committee, which oversees the FCC.

The final decision on whether to appeal will be made by the U.S. Solicitor General, who represents the government in Supreme Court cases. Department of Justice civil division spokesman Charles Miller said the case is under review and no determination has been made. The Solicitor General has 90 days from the date of the decision to file.

Another option would be to ask the 2nd District for a rehearing before the full panel of appeals judges. The FCC has 45 days to decide whether to pursue that option.

The agency could also try again with the three-judge panel or simply do nothing. Neither of these options is considered likely, given FCC Chairman Kevin Martin's statement regarding the court's decision.

"If we can't prohibit the use of the words "f---" and "s---" during prime time, Hollywood will be able to say anything they want, whenever they want," Martin said.

The expletives in this excerpt are deleted. In his statement, they were not. In fact, he used the "F-word" six times and the "S-word" four times.

Meanwhile, the networks may be off the hook _ at least for now _ but given the uncertainty of the legal situation, don't expect to hear an increase in curse words on your favorite television shows.

"Broadcasters are going to feel relieved that they don't have a gun at their head but are going to be very cautious," Schwartzman said. Especially when considering the fines for indecency have been raised to $325,000 for broadcasters, he noted.

"This is serious money _ even to them."

___

EDITOR'S NOTE _ John Dunbar covers communications and technology for The Associated Press.

© 2007 The Associated Press