2nd Circuit Vacates and Remands FCC Profanity Order

June 4, 2007. The U.S. Court of Appeals (2ndCir) issued its divided opinion [53 pages in PDF] in Fox Television v. FCC, a broadcast profanity case.

The majority wrote that "We find that the FCC’s new policy sanctioning ``fleeting expletives´´ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy. Accordingly, the petition for review is GRANTED, the order of the FCC is VACATED, and the matter is REMANDED to the agency for further proceedings consistent with this opinion."

The Court did not decide any of the Constitutional issues. However, it wrote in extensive dicta that "we are skeptical that the Commission can provide a reasoned explanation for its ``fleeting expletive´´ regime that would pass constitutional muster".

Federal Communications Commission (FCC) Chairman Kevin Martin issued a long release [PDF] in which he criticized the Court's opinion, and the broadcast programs at issue. Notably, he did not state that the FCC would issue another order. Instead, he suggested that Congressional action would be appropriate. In contrast, Commissioner Michael Copps wrote in a release [PDF] that this must remain a "Commission priority".

Order Under Review. On November 6, 2006, the FCC issued an Order [36 pages in PDF] on remand regarding complaints that four broadcast television programs contained indecent and/or profane material. The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane. This order is FCC 06-166.

Fox, CBS, and ABC filed petitions for review of the FCC's order. See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006.

Court of Appeals Opinion. The reasoning in support of the holding is narrow. The Court of Appeals granted the petitions solely on the grounds that the order represents a dramatic change in agency policy without adequate explanation and is hence arbitrary and capricious under the Administrative Procedure Act (APA). The Court did not decide other arguments that the order is arbitrary and capricious. The Court did not rule on the arguments that the FCC's indecency regime is unconstitutionally vague, that it is a content based regulation of speech in violation of the First Amendment, or that it permits the FCC to make subjective determinations about the quality of speech in violation of the First Amendment.

However, while the Court did not rule on the other arguments, it proceeded, in lengthy dicta, to suggest that the FCC's order, or any similarly rewritten order, would also fail on Constitutional grounds. However, this is dicta, and were to the FCC to issue another order on remand, the inevitable challenges to that order might not be heard by the Second Circuit.

While the Court did not decide the Constitutional issues, it added that "we are skeptical that the Commission can provide a reasoned explanation for its ``fleeting expletive´´ regime that would pass constitutional muster". The Court added that the FCC is likely to rewrite its order, with articulation of its basis, and that the broadcasters are likely to challenge that order.

It wrote that "we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks' contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague."

Pacifica's Pervasiveness Rationale. The judicial precedent upon which the FCC primarily relied was the Supreme Court's opinion in the case involving comedian George Carlin's use of "filthy words", FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

In Pacifica, the Supreme Court upheld the FCC's order regarding a radio broadcast of Carlin's monologue. It wrote that "We have long recognized that each medium of expression presents special First Amendment problems. ... And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve ``the public interest, convenience, and necessity.´´"

The Supreme Court has offered various rationales for regulation of broadcast speech, including scarcity of spectrum, and pervasiveness of broadcast media, both of which are becoming increasingly irrelevant. In Pacifica, the Court cited the rationale that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans".

In the present case, the broadcasters argued that the pervasiveness rationale has eroded with the proliferation of new media.

The Court wrote, in dicta, that "Whatever merit these arguments may have, they cannot sway us in light of Supreme Court precedent. ... Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television." (See, page 36 of slip opinion.)

The Court added that "The proliferation of satellite and cable television channels -- not to mention internet-based video outlets -- has begun to erode the ``uniqueness´´ of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."

It concluded that "technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight."

John Morris of the Center for Democracy and Technology (CDT) and Adam Thierer of the Progress and Freedom Foundation (PFF) argued in an amicus curiae brief [40 pages in PDF] that "broadcast indecency law is rife with First Amendment and other constitutional and statutory problems". They also argued that "As the broadcast medium becomes less relevant, and as video entertainment moves to media that have robust parental controls (such as cable and the Internet), the entire constitutional foundation for any enhanced governmental authority over otherwise lawful content is diminishing."

They added that "Not only are new and varied media technologies being developed, their convergence with broadcast makes the ``pervasiveness´´ rationale increasingly irrelevant. The rise of new user empowerment technologies, available for traditional broadcast as well as other video and audio media, justifies a shift away from government regulation to a more user-centric model that respects individual choice and encourages personal responsibility -- and, critically, still protects children."

Profanity. The Court also wrote, in dicta, about the broadcasters' argument that the FCC employed an improper definition of profane.

The Court wrote that "Although we need not reach this argument to dispose of this appeal, on remand, the FCC may desire to explain its gloss on the definition of ``profane.´´"

It added that "we do not believe the FCC has proffered a reasonable construction of the term ``profane.´´ While we may owe Chevron deference to the FCC's construction, the FCC must still demonstrate that its construction is reasonable, particularly in light of Congressional intent, the canons of statutory construction, and the historical view of the plain meaning of this term."

Martin's and Copp's Reactions. FCC Chairman Kevin Martin responded in a release [PDF]. He wrote that "I completely disagree with the Court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that ``shit´´ and ``fuck´´ are fine to say on broadcast television during the hours when children are most likely to be in the audience."

"The court even says the Commission is ``divorced from reality.´´ It is the New York court, not the Commission, that is divorced from reality in concluding that the word ``fuck´´ does not invoke a sexual connotation", said Martin. "These words were used in prime time, when children were watching."

Martin (at right) continued that "the court implies that the existence of blocking technologies is one reason the FCC shouldn’t be so concerned. But even a vigilant parent using current blocking technologies such as the V-Chip couldn’t have avoided this language, because they rely on the program’s rating, and in this case the programs were rated appropriate for family viewing."

He concluded that "If we can't restrict the use of the words ``fuck´´ and ``shit´´ during prime time, Hollywood will be able to say anything they want, whenever they want."

The FCC's current statutory authority is 18 U.S.C. § 1464. It provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

Chairman Martin also wrote that "Today's decision by the Court increases the importance of Congress considering content-neutral solutions to give parents more tools and consumers generally more control and choice over programming coming into their homes. By allowing them to choose the channels that come into their homes, Congress could deliver real power to American families."

He added that "Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns. All of the potential versions of a la carte would avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families. Providing consumers more choice would avoid the First Amendment concerns of content regulation, while providing real options for Americans."

FCC Commissioner Michael Copps wrote in a release [PDF] that "This decision is disappointing to me and to millions of parents and concerned citizens across the land. But it doesn't change the FCC's legal obligation to enforce the indecency statute. So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake. The FCC has a duty to find a way to breathe life into the laws that protect our kids. That may entail an appeal of this decision. Certainly it includes strong enforcement action of the many indecency complaints before us that are untouched by today's decision. Enforcing the laws against indecency, profanity and obscenity must remain a Commission priority -- America's families and children expect and deserve no less."

This case is Fox Television Stations, Inc., et al. v. FCC and USA, and consolidated petitions for review of a final order of the FCC, App. Ct. Nos. 06-1760-ag (L), 06-2750-ag (CON), and 06-5358-ag (CON). CBS and ABC also filed petitions for review. Judge Pooler wrote the opinion of the court, in which Judge Hall joined. Judge Leval dissented.