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Appeals court overturns ruling by FCC

WASHINGTON (BP)–A federal appeals court dealt a setback June 4 to the government’s efforts to regulate broadcast indecency.

A three-judge panel of the Second Circuit Court of Appeals in New York rejected decisions by the Federal Communications Commission that said the uses of obscene language in live programs in 2002 and 2003 were indecent. With its 2-1 ruling, the judges sent the case back to the FCC to give the agency an opportunity to explain its reasoning further.

FCC commissioners expressed disappointment with the opinion, and other critics urged the federal agency to appeal it to the Supreme Court.

The case, Fox v. FCC, came to the Second Circuit as a result of findings by the federal commission that live Fox Channel broadcasts of the 2002 and 2003 Billboard Music Awards programs violated decency standards by use of the F-word and/or S-word.

The decisions followed a ruling by the FCC that a single use of the F-word on the 2003 Golden Globes Awards on NBC was indecent. That marked a change in policy for the panel, which previously had relied on a requirement that the use of an expletive must be more than fleeting. In the Golden Globes case, the FCC ruled solitary use of the F-word can offend decency standards.

The Second Circuit majority, however, ruled the FCC’s revised policy “represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry.” The judges said the new policy “is arbitrary and capricious,” adding the FCC “has failed to articulate a reasoned basis” for the change.

Judge Pierre Leval, dissenting from judges Rosemary Pooler and Peter Hall, called the revision a “relatively modest change.” The FCC provided a “reasoned explanation,” Leval wrote, adding its stance “is not irrational; it is not arbitrary and capricious.”

FCC Chairman Kevin Martin said the decision caused him to be “disappointed for American families.”

“These words were used in prime time, when children were watching,” Martin said in a written statement. “I find it hard to believe that the New York court would tell American families that [these words] are fine to say on broadcast television during the hours when children are most likely to be in the audience.

“If ever there was an appropriate time for Commission action, this was it. If we can’t restrict the use of [these words] during prime time, Hollywood will be able to say anything they want, whenever they want.”

The Parents Television Council, which filed complaints over the incidents in question and a friend-of-the-court brief in support of the FCC, called for the commission to appeal the ruling to the country’s highest court.

PTC President Tim Winter described the decision as “a slap in the face to the American people.” He said in a written release the two judges had, “in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry.”

The Second Circuit ruling flew in the face of recent efforts by the legislative and executive branches of the federal government to stiffen penalties against broadcast indecency. Last June, President Bush signed into law a measure overwhelmingly approved by Congress that increased the maximum fine for each decency violation by 10 times to $325,000.

The FCC did not fine Fox for the 2002 and 2003 violations.

Pro-family organizations have long criticized the sexual content, plus obscene and profane language, on prime-time television. The 2004 Super Bowl halftime show pushed the issue into the national spotlight and motivated Congress to take action. Janet Jackson’s exposure on national TV capped a controversial show and brought a deluge of criticism from many Americans, including legislators and the FCC.

Leval and Pooler were nominated to the court by President Clinton, Hall by President George W. Bush.