Number 607 June 15, 2007

Client Alert

Latham & Watkins Communications Practice Group

Fox Television Stations v. FCC: Broadcasters Take Aim at the FCC’s Indecency Rules

For years, television broadcasters policy, and a Supreme Court showdown and the Federal Communications may or may not occur. Moreover, the Commission (FCC) have lived by an Commission’s review of visual depictions uneasy truce under which the FCC of sexual organs or activity was not pursued a restrained enforcement affected by the court’s ruling. Thus, the posture while the networks refrained prospect of significant fines continues to from attacking the constitutional loom, and broadcasters would be well- underpinnings of the indecency regime. advised to maintain caution in airing In recent years, however, the FCC has potentially indecent material. stepped up its enforcement–taking a more aggressive stance on what is Background: The FCC’s indecent and proposing historically ”The Second large fines–and broadcasters in turn Treatment of Fleeting have become less reticent about Expletives Circuit’s decision mounting legal challenges. In the first in Fox Television major appellate ruling since the FCC Congress has directed the FCC to toughened its stance on indecency, Fox Stations v. FCC is police indecent speech over the public Television Stations, Inc. v. FCC, the US airwaves.2 The FCC first exercised a major victory for Court of Appeals for the Second Circuit this authority in 1975 when it the Networks, but invalidated the agency’s new policy of declared indecent a radio broadcast of punishing broadcasters for the airing of is unlikely to be George Carlin’s “Seven Dirty Words” fleeting expletives.1 the last word on monologue. In that decision, the FCC the validity of the In a 2-1 decision, the court held that the found that indecency “is intimately FCC acted arbitrarily and capriciously connected with the exposure of children FCC’s indecency when it reversed its longstanding policy to language that describes, in terms regime.“ of refraining from proposing fines based patently offensive as measured by on isolated and fleeting expletives. The contemporary community standards court did not reach the question whether for the broadcast medium, sexual or the FCC’s indecency restrictions could excretory activities and organs. . . .”3 survive First Amendment scrutiny, but it The FCC added, however, that it would strongly hinted in dicta that punishing not regulate live offensive speech where broadcasters for airing fleeting the broadcaster has no opportunity for expletives would be unconstitutional. journalistic editing.4 Both sides remain in a holding pattern, The Supreme Court upheld the as the FCC has yet to make clear Commission’s order in FCC v. Pacifica whether it will alter its enforcement

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Foundation, relying in large part In 2006, the FCC resolved several on “uniquely pervasive presence pending indecency complaints based [of broadcast media] in the lives of on its new Golden Globes standard. all Americans” and the important Two of the complaints involved the governmental interest in protecting 2002 Billboard Music Awards and 2003 children.5 However, the Court Billboard Music Awards, in which Cher emphasized the narrowness of its and Nicole Ritchie uttered the F-word. holding, noting that it had “not decided A further complaint was aimed at an that an occasional expletive” in other NYPD Blue episode, where characters contexts would justify a sanction.6 used terms such as “bullshit,” “dick” Justices Powell and Blackmun likewise and “dickhead.” A fourth complaint stressed in their concurring opinion targeted an interview on The Early that, in contrast to the “verbal shock Show, where a Survivor contestant treatment” caused by Carlin’s repeated called another contestant a “bullshitter.” use of profanity, the Court’s holding In applying the Golden Globes standard, did not “speak to cases involving the the FCC held that any use of “F- isolated use of a potentially offensive word” is presumptively indecent and word in the course of a radio broadcast profane and the uses of “shit” were . . .”7 Over the next 30 years, the FCC likewise patently offensive because the consistently found that the single use of language was explicit, shocking and an expletive was insufficient grounds for gratuitous. (The FCC found that “dick” a sanction. and “dickhead,” by contrast, were not indecent.) Again, the FCC reaffirmed its In 2001, the FCC issued a policy new policy that the isolated and fleeting statement clarifying its indecency nature of an expletive is irrelevant and standard.8 In doing so, the FCC carefully that repetition is no longer necessary for distinguished between material that a finding of indecency. “dwells” on sexual or excretory organs and activities and material that is “fleeting or isolated” (and thus outside The Networks Fight Back of the indecency proscription).9 In 2004, however, the FCC announced a policy In response to these rulings, Fox, CBS reversal in connection with its review and NBC filed a petition for review of of a complaint regarding the broadcast the FCC’s 2006 order in the Second of the 2003 Golden Globe Awards. Circuit. The court granted a voluntary During that live broadcast on NBC, the remand to allow the FCC to address musician Bono stated: “this is really, all of the petitioners’ arguments in the really, fucking brilliant.” The FCC’s first instance. In its decision on remand, Enforcement Bureau initially denied the FCC reaffirmed its holding with the viewer complaint, finding that respect to the 2002 and 2003 Billboard the expletive did not describe sexual Music Awards, dismissed on procedural or excretory activity and was fleeting grounds the NYPD Blue complaint, and isolated. Five months later, the and reversed its finding with respect full Commission reversed the Bureau’s to the Early Show on First Amendment decision, finding that the NBC stations grounds.11 Once back in court, the had violated the indecency standard Networks argued that the FCC’s because any use of the “F-word” decision violated the Constitution and inherently evokes a sexual connotation was arbitrary and capricious in violation and is patently offensive under of the Administrative Procedure Act. contemporary community standards. The Commission found the fleeting The Second Circuit Weighs In and isolated nature of the expletive irrelevant, cautioning that fleeting The court granted the petition for speech would henceforth be punishable review, resting its decision entirely as indecent.10 on the Networks’ argument that the

 Number 607 | June 15, 2007 Latham & Watkins | Client Alert agency’s order was arbitrary and Conclusion capricious. The court held that the FCC made a “180-degree turn regarding its The Supreme Court has not reexamined treatment of fleeting expletives without the FCC’s broadcast indecency providing a reasoned explanation regulations since Pacifica in 1975. justifying the about-face.”12 Many technological and societal factors have changed in the ensuing 30 years, The FCC advanced three reasons for arguably undercutting the Court’s its change in policy, but the court found rationale for regulating indecency in the each unavailing. The FCC first proffered broadcast medium. The Second Circuit’s the “first blow theory” that unregulated decision in Fox Television Stations v. expletives require people, especially FCC is a major victory for the Networks, children, to take the first blow before but is unlikely to be the last word on the channel can be changed. The court the validity of the FCC’s indecency quickly rejected this justification, noting regime. A further challenge remains the inconsistency in the FCC’s insistence pending in another federal appeals on prohibiting some expletives, but not court, and the issue might well end up others (even though they still result before the Supreme Court in the near in a “first blow”). Second, the FCC future. If so, the Court is unlikely limit argued that even the non-literal use of its scrutiny to the FCC’s compliance expletives evokes sexual or excretory with the Administrative Procedure Act, connotations. The court dismissed that but instead might determine whether claim, noting the FCC’s own rulings the FCC’s enforcement policies pass finding that an expletive can be merely muster under the First Amendment. an adjective or an exclamation without Broadcasters and the FCC alike appear describing sexual or excretory functions. eager to resolve that key issue. In the Finally, the FCC argued that allowing meantime, the threat of substantial fleeting expletives to go unpunished fines remains, and broadcasters should would open the floodgates to unlimited continue to exercise caution in airing indecency over the airwaves. The potentially indecent material. court disputed this rationale as well, noting that fleeting expletives were Endnotes exempt from punishment prior to the 1 Fox Television Stations, Inc. v. FCC, No. 06- announcement of the new policy, yet 1760, slip op. (2d. Cir. June 5, 2007). there was no evidence of a barrage of 2 See 18 U.S.C. § 1464. expletives.13 3 Citizen’s Complaint Against Pacifica Found. The court did not reach the merits of Station WBAI(FM), N.Y., N.Y., 56 F.C.C.2d 94, the constitutional arguments, because at ¶ 11 (1975). its finding of arbitrariness made it unnecessary to do so. However, the 4 ‘Petition for Clarification or Reconsideration’ panel majority found the constitutional of a Citizen’s Complaint against Pacifica arguments compelling, noting in dicta Foundation Station WBAI(FM), N.Y., N.Y., 59 their skepticism “that the Commission F.C.C.2d 892, at ¶ 4 n.1 (1976). can provide a reasoned explanation 5 438 U.S. 726, 748-51 (1978). for its ‘fleeting expletive’ regime that would pass constitutional muster.”14 The 6 Id. at 750. majority faulted the FCC’s indecency 7 Id. at 760–61 (Powell and Blackmun, JJ., regime for being vague, inconsistent concurring). and impermissibly viewpoint-based. The majority also questioned the 8 Industry Guidance on the Commission’s Case continuing viability of diminished First Law Interpreting 18 U.S.C. § 1464, 16 FCC Amendment protection for broadcast Rcd 7999 (2001). media, expressing doubt that broadcast 9 Id. at ¶¶ 17–18. media remains “uniquely pervasive” and “uniquely accessible to children.”15

 Number 607 | June 15, 2007 Latham & Watkins | Client Alert

10 The full Commission also found that the 13 The court also found that the FCC had expletive was profane under 18 U.S.C. § 1464, failed to provide any reasoned analysis or even though the FCC had previously limited explanation of its new definition of profanity its definition of profanity to blasphemy. See and concluded it was arbitrary and capricious Fox, slip op at 13. as well. The dissenting judge disagreed that the FCC failed to provide a cogent 11 The FCC determined that, because the explanation for its change of course, finding expletive occurred during a “bona fide news the agency’s explanations reasonable. interview,” it was required to exhibit the utmost restraint in adjudicating indecency 14 Fox, slip op. at 32. complaints. See Fox, slip op. at 16. 15 Id., slip op. at 32–38. 12 Id., slip op. at 19.

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 Number 607 | June 15, 2007