FCC TV Indecency Crackdown Limited by U.S. Supreme Court

The U.S. Supreme Court ruled that Fox and ABC television stations can’t be punished for airing profanity and nudity a decade ago, while it dodged broader questions about the constitutionality of a federal crackdown on broadcast indecency.

The justices unanimously said the Federal Communications Commission didn’t give “fair notice” before it took action against Fox Television Stations Inc. for allowing expletives on awards shows in 2002 and 2003 and against ABC-affiliated stations for showing a scene with a naked woman on the drama “NYPD Blue” in 2003.

Today’s ruling nonetheless falls short of what the broadcast industry sought. Broadcasters asked the court to invalidate the FCC’s policy as being unconstitutionally vague and to overturn decades-old rulings that subject over-the-air programming to stricter rules than cable or satellite shows.

“The Supreme Court decided to punt on the opportunity to issue a broad ruling on the constitutionality of the FCC indecency policy,” said Paul Smith, a Washington lawyer who represented the National Association of Broadcasters in the case. “The issue will be raised again as broadcasters will continue to try to grapple with the FCC’s vague and inconsistent enforcement regime.”

No New Cases

The FCC now must decide how vigorously to enforce its rules, knowing that they may face new court challenges. Broadcast indecency hasn’t been a priority for the commission under Chairman Julius Genachowski. The FCC hasn’t brought new broadcast indecency cases since the Democrats took office in 2009, following two Republican chairmen.

Today’s ruling may affect the agency’s effort to levy a $550,000 fine against CBS Corp. (CBS) for the split-second exposure of singer Janet Jackson’s breast during the 2004 Super Bowl halftime show.

The high court case concerned incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F--- ‘em. I still have a job and they don’t.” A year later, Nicole Richie said, “Have you ever tried to get cow s---out of a Prada purse? It’s not so f--- ing simple.”

The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines.

$1.2 Million

In the “NYPD Blue” case, the FCC would have imposed penalties totaling $1.2 million on more than 40 ABC-affiliated stations. The disputed 2003 episode shows actress Charlotte Ross’s buttocks as she disrobes for a shower and later a frontal view, with her hands covering her breasts and pubic area, after a young boy inadvertently walks in.

The FCC said in 2004 that it would begin punishing broadcasters for fleeting expletives -- one-time utterances on live shows. In his opinion for the court, Justice Anthony Kennedy said the 2004 policy couldn’t be applied to the Fox and ABC shows because they were aired before the fleeting-expletive rule was announced.

“The commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent,” Kennedy wrote. He said the court’s narrow reasoning meant it didn’t need to “address the constitutionality of the current indecency policy.”

Ginsburg, Sotomayor

Justice Ruth Bader Ginsburg said she would have gone further and overturned the 1978 ruling that let the FCC punish broadcasters for violating decency standards. Justice Sonia Sotomayor didn’t take part in the case.

News Corp. (NWSA)’s Fox and Walt Disney Co.’s ABC said they were pleased by the ruling.

“The court recognized that the case has significant First Amendment implications that require notice to be clearer,” Dan Berger, a spokesman for Fox, said in an e-mailed statement.

The ruling shifts the focus back to the FCC, which now must decide whether it wants to make televised indecency a priority.

“We are reviewing today’s decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago,” Genachowski, the FCC chairman, said in an e-mailed statement. “Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”

Complaint Backlog

Robert McDowell, a Republican member of the Democrat- dominated commission, said the agency should “get back to work so that we can process the backlog of pending indecency complaints -- which currently stands at just under 1.5 million involving about 9,700 TV broadcasts.”

Dennis Wharton, a spokesman for the National Association of Broadcasters, said in an e-mailed statement that “we don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers.”

Comcast Corp. (CMCSA)’s NBC and CBS Corp.’s CBS joined ABC and Fox in opposing the FCC indecency crackdown.

Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.

The FCC’s indecency policy was before the justices for the second time in three years. In 2009 the court said on a 5-4 vote that the agency had given a sufficient explanation to comply with a law governing administrative agencies.

The case is FCC v. Fox Television Stations, 10-1293.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Todd Shields in Washington at tshields3@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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