FCC TV Censors

US television network ABC may have to pay a total fine of $1.4m (£707,000) for airing an episode of NYPD Blue which depicted female nudity. The proposed penalty has been imposed on all 52 of ABC's stations who broadcast the episode.

The Federal Communications Commission (FCC) said the 2003 show had "multiple, close-up views" of a woman's buttocks before the US watershed.

The FCC deems "sexual or excretory activities" shown in an "offensive" way before 2200 as indecent.

ABC has rejected the claims, saying the buttocks are not a sexual organ. The scene in the police drama shows a boy surprising a naked woman as she prepared to take a shower.

The FCC said it received several complaints about the sequence, which also showed one of the woman's breasts.

An ABC spokeswoman said that the programme was broadcast with parental warnings and that the realistic nature of NYPD Blue's storylines was well-known to the viewing public.

The broadcaster has said it will appeal against the decision, which is the second largest indecency fine imposed on a broadcaster.

The 50 ABC television affiliates slapped with fines for airing an "indecent" episode of 'NYPD Blue' in 2003 have filed an appeal with the FCC.

On Jan. 25, the FCC ordered the stations to pay a total of $1.4 million in fines for broadcasting the episode containing a seven-second glimpse of a woman's bare buttocks.

Lawyers for the ABC stations argued in their appeal that the FCC should reverse the decision because the “simple depiction of nonsexual nudity” is not indecent by law or community standards.

According to Broadcast & Cable, the appeal states that the FCC's action is rife with procedural infirmities; is predicated on form complaints that do not satisfy the commission's own policies; proscribes material outside the scope of the commission's indecency-enforcement authority; misapplies the commission's own multifactor test for patent offensiveness; is inconsistent with the commission's governing precedent at the time of broadcast; and reaches a result that is plainly unconstitutional.

Central to the FCC's definition of the 'NYPD Blue' scene as "indecent" is the idea that the buttocks are "a sexual or excretory organ." The affiliates' appeal helpfully provides a detailed medical description of the buttocks, proving for the record that the butt is neither a sexual nor an excretory organ.

The appeal further notes that the FCC failed to measure the scene's alleged "indecency" by community standards in any of the 50 broadcast markets, making the fines arbitrary and unconstitutional.

The Los Angeles Times reports that the debate over what constitutes an "indecent" broadcast may come up before the Supreme Court this week. It would mark the first time in 30 years that the question has appeared before the court.

The court last ruled on the issue in 1978, and, as The Los Angeles Times points out, media has changed dramatically since then with cable television, the internet and radio "shock jocks."

The question for the court involves "fleeting expletives" in on-air broadcasts. U2 frontman Bono used an expletive on NBC when receiving a 2003 Golden Globe Award.

Following complaints from angry viewers, the FCC made the decision to fine broadcasters who aired what the agency called isolated or fleeting expletives during daytime and early-evening hours.

However, last year, Fox and other networks sued to block the FCC's policy. An appeals court in New York put the issue on hold. Now, according to the Times, the FCC is asking the Supreme Court to clear the way so the agency's new policy can be enforced. The court may act on the FCC appeal as soon as today. If the justices vote to hear the case, arguments would take place in the fall.

According to the Times, broadcasters insist they have no wish to be free to air "indecent" language. Their concern is that when an unscripted expletive is aired that they aren't subject to huge fines.

The Supreme Court of the United States has announced that it will be hearing the FCC's appeal to the 2nd U.S. Circuit Court of Appeals' decision that the FCC has changed its policy on fleeting expletives without adequate explanation.

It's now up to the FCC to explain to the Supreme Court why its policy has changed. This is also the first time the Supreme Court has heard a major 'broadcast indecency' case in 30 years.

In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the FCC for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of Married by America, which featured digitally obscured nudity and whipped-cream-covered strippers.

Fox appealed immediately after the FCC ruling. Last month, four years later, the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it arbitrary and capricious, inconsistent with precedent, and patently unconstitutional in a statement released yesterday.

Fox has asked the five FCC commissioners to reconsider the fine without its having to pay, a move that sets Fox in a two-front indecency war: It is battling the FCC at the agency level on the "Married" fine and in the Supreme Court on other indecency fines levied at about the same time.

Last week, the Supreme Court said it would take up FCC v. Fox Television Stations this fall. The lawsuit filed by the network aims to overturn FCC fines levied in 2002 and 2003. In each case, live broadcasts of awards shows, variations of a vulgar four-letter word were uttered on the air.

In a decision that clears CBS of any wrongdoing for airing the 2004 Super Bowl halftime show that featured Janet Jackson's infamous “wardrobe malfunction,” a federal appeals court overturned the $550,000 fine that the Federal Communications Commission levied against the station, calling the fine arbitrary and capricious.

The decision was handed down by a three-judge panel of the United States Court of Appeals for the Third Circuit, which found that the fine was unfair because the commission, in imposing it, deliberately strayed from its practice of exempting fleeting indecency in broadcast programming from punishment. The commission also erred, the judges ruled, by holding CBS responsible for the actions of Janet Jackson and Justin Timberlake, who were characterized by the judges as independent contractors hired for the limited purposed of the Halftime Show.

Like any agency, the FCC may change its policies without judicial second-guessing, the court said: But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.

The live broadcast on Feb. 1, 2004, sparked headlines around the world with one swift motion that came at the end of the halftime show, when Justin Timberlake tore off part of Jackson's bustier during the song Rock Your Body, exposing her right breast. The network quickly cut to an aerial shot of the stadium, but not before the image was seen — and in many cases replayed on video recordings — in millions of homes. Although the exposure appeared to be pre-planned, CBS said it was surprised by the incident, and a spokesman for Ms. Jackson later said that Mr. Timberlake had accidentally removed too much of her outfit, calling it a malfunction of the wardrobe.

CBS said: We are gratified by the court's decision, which we hope will lead the FCC to return to the policy of restrained indecency enforcement. This is an important win for the entire broadcasting industry, because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material.

A trio of former Federal Communications Commission chairmen, including the most iconic critic of TV content and a symbol of deregulation, joined to ask the Supreme Court to strip the FCC of its power to regulate indecency entirely, saying that it is on a "Victorian crusade" that hurts broadcasters, viewers and the Constitution.

Former Democratic chairman Newton Minow may have famously dubbed TV a "vast wasteland" back in the 1960s, but he is ready to let TV programmers in this century have more say over content if the alternative is the current FCC.

Seconding that opinion was former Republican chairman Mark Fowler, who once likened TV to a toaster with pictures and became a symbol of the deregulatory 1980s.

Also weighing in on a brief to the court Friday was James Quello, former acting chairman and longest-serving Democratic commissioner.

They argued that the commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies and even noncommercial documentaries.

I thnk it is an incredible statement from FCC chairmen who have been some of the architects of the indecency policy and who are now saying that this is out of control," said First Amendment attorney John Crigler: The enhanced indecency standard was created under Mark Fowler, and here he is saying 'boy, this train is way off the tracks.'

The trio were joined by other former FCC commissioners and staffers to file an amicus brief Friday in the FCC's challenge to a lower-court ruling that the commission's indecency finding against swearing on Fox awards shows was arbitrary and capricious and a violation of the Administrative Procedures Act. That act requires regulators to sufficiently justify their decisions and forewarn regulated industries.

It is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality, they said. And that means getting the FCC entirely out of the business of regulating indecent content, they added.

News Corporation boss Peter Chernin is unleashing a broad defense of broadcasters against FCC indecency enforcement and warning starkly about the danger that a Supreme Court case could pose to First Amendment freedoms.

Chernin said there could be devastating repercussions to the wrong ruling in a case in which the FCC found Fox stations' airing of Nicole Richie's and Cher's live 'profane' comments in two Billboard Music Awards in 2002 and 2003 amounted to indecency violations.

In prepared remarks, he called the case, to be heard by the high court November 4th, an absolute threat to the First Amendment. The case hinges on utterances that were unscripted on live television. If we are found in violation, just think about the radical ramifications for live programming—from news, to politics, to sports … in fact, to every live broadcast television event. The effect would be appalling.

The court case stems from the FCC's attempt to ramp up indecency enforcement by starting to regard fleeting expletives as indecent. The FCC generally had overlooked expletives uttered in live unscripted shows in the past.

In the high court case, the FCC is appealing an appellate court ruling that overturned the FCC's policy change.

Chernin conceded that he is defending some less than ideal material in the high court case and others, including one over episodes of Married by America that showed strippers. Still, he said, his company has no choice because the government is trying to act as censor: I vow to fight to the end our ability to put occasionally controversial, offensive and even tasteless content on the air.

Chernin also accused groups claiming to be interested in protecting children of helping the government in its attempts to censor television. The job of protecting children is far too important to leave to government bureaucrats or so-called public interest groups. The job of protecting children lies with parents.

Update: Oral Arguments

1st November 2008. See Supreme Court to hear case about indecent speech on TV from edition.cnn.com

The court case will commence on 4th November 2008

Lawyers from both sides expect Tuesday's oral arguments to be filled with the "indecent" language at issue, so expect to see a lot of f-bombs being tossed around by the justices, all in the name of legal clarity, of course.

The case is FCC v. Fox Television Stations (07-582)

For the first time in 30 years, the US Supreme Court is taking a look at so-called indecent speech on broadcast TV and radio ... but it may not look very deeply, opting instead to decide simply whether the Federal Communications Commission (FCC) violated the Administrative Procedures Act in attempting to fine Fox Broadcasting for airing so-called fleeting expletives - that is, single unexpected utterances of words like 'fuck' and 'shit.'

But 'fuck' and 'shit' weren't in evidence when the Supreme Court heard argument in the petition of FCC vs. Fox Broadcasting on Tuesday morning. Rather, everyone referred to them as the F-word and the S-word - leading to the interesting conundrum that the high court would be deciding the broadcast fate of words that it would apparently hurt their ears (or minds) to hear spoken in a courtroom.

The present cases arises, although even this was a matter of contention, from the FCC's decision to begin levying fines on broadcasters who allowed even single instances of 'fuck', 'shit' and its variations to go out over the airwaves, even though, historically, it had overlooked such slips.

It will likely be several months before the decision is published, so it is equally likely that broadcasters will spend that time policing their guests' language very carefully, since millions of dollars in fines are in the balance.

...Read full article

The US Supreme Court has ruled that the FCC can penalize broadcasters for airing as little as one single expletive over the air. The decision will not affect cable TV, satellite broadcasts or the Internet, none of which is transmitted over public airwaves.

In a 5-4 decision written by Justice Antonin Scalia, the court reversed a ruling by the 2nd U.S. Circuit Court of Appeals that said the FCC's decision to sanction fleeting expletives was arbitrary and capricious under federal law. That court decision had agreed with Fox Television stations, which broadcast the Billboard Music Awards, that such isolated utterances are not as potentially harmful to viewers as are other uses of sexual and excretory expressions long deemed indecent and banned by federal regulators.

Even isolated utterances can be made in vulgar and shocking manner, and can constitute harmful first blows to children, Scalia wrote in the opinion.

Dissenting were liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. In a statement by Breyer, signed by the others, they said the FCC failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception.

The court pointed out that broadcasters can go back to the federal appeals court in New York and argue that the FCC policy violates the 1st Amendment.

Bono's televised strong language at the 2003 Golden Globes led the FCC to reverse a longstanding policy that had punished only repeated expletives and declare that a single use of certain words could be sanctioned as indecent.

The new policy was developed under FCC Chairman Kevin Martin, a George W. Bush appointee who resigned in January.

The US Supreme Court has ordered a re-examination of a ruling that threw out a fine over Janet Jackson's wardrobe malfunction during 2004's Super Bowl.

FCC censors had initially fined CBS TV $550,000 (£368,000) in September 2004 for airing the glimpse of Jackson's breast during the broadcast.

But an appeals court quashed it in July last year saying the watchdog acted arbitrarily in issuing the fine.

Now the high court has directed the 3rd US Circuit Court of Appeals in Philadelphia to consider reinstating the fine imposed by the FCC.

The order follows a high court ruling last week that upheld the FCC's policy that subjects broadcasters to fines against even single uses of swear words on live television.  Last year, the appeals court threw out the fine against CBS, saying that as the incident lasted nine-sixteenths of one second, it should have been regarded as "fleeting".

Lawyers for CBS had urged the Supreme Court to reject the FCC's appeal.

A New York court has struck down the TV censor's  rules banning fleeting expletives on TV.

According to the Associated Press, the court has overturned a Federal Communications Commission (FCC) policy, saying that the agency's guidelines for fleeting expletives and other indecencies in broadcast violate the First Amendment.

The policy went into effect in 2004, at a time when indecency in broadcast was a hot issue, right after Janet Jackson's notorious wardrobe malfunction at the Super Bowl.

Now, the three-judge panel in New York has decided to overturn the policy because they believe the FCC's policy is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.

The appeals court added that the chilling effect would lead to mass censorship of potentially valuable material, because broadcasters have no way of knowing what the FCC will find offensive.

The Federal Communications Commission (FCC) is appealing a federal court ruling that its indecency policy is unconstitutional, arguing the decision makes it all but impossible for the agency to enforce restrictions on broadcasting nudity or profanity.

The Second Circuit Court of Appeals in New York struck down the FCC's indecency policy last month, calling it a violation of the First Amendment. The court said the rule forces broadcasters to self-censor in order to avoid fines for accidentally broadcasting nudity or profanity.

The FCC filed a petition asking the court to reconsider the decision. The three-judge panel's decision in July raised serious concerns about the Commission's ability to protect children and families from indecent broadcast programming, FCC general counsel Austin Schlick said. The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals' further consideration of our arguments.

The matter is expected to eventually reach the Supreme Court, which upheld the FCC's policy last year on procedural grounds but did not address the constitutional arguments.

The case stems from live broadcasts of the Billboard Music Awards in 2002 and 2003, during which musician Cher and reality television performer Nicole Ritchie used unscripted expletives.

The FCC changed its indecency policy in 2004 following a similar incident at the Golden Globes involving U2 lead singer Bono. The agency began to levy record fines against broadcasters for fleeting expletives uttered on live television.

The Commission ruled in 2006 that, under its new policy, both Billboard broadcasts were indecent. Fox, which broadcast the awards shows, responded by appealing that decision. In its appeal Fox was joined by other broadcasters who opposed the FCC's stricter enforcement policies.

The court of appeals initially ruled in favor of the broadcasters, claiming the FCC had failed to properly articulate a reason for the rule changes, but their decision was reversed by the Supreme Court. The court of appeals then ruled in favor of Fox on constitutional grounds, setting the stage for the FCC's latest appeal.

A federal appeals court has struck down a penalty imposed on ABC by the FCC in 2003.

The $27,500 fine was originally charged after an episode of cop drama NYPD Blue contained a brief shot of a woman's nude buttocks.

According to the Associated Press, the 2nd US Court of Appeals has now ruled that since television stations are not fined for fleeting, unscripted profanities in live broadcasts, the brief nudity should not have resulted in a penalty.

The FCC previously claimed that the scene dwelled on the nudity of actress Charlotte Ross and was shocking and titillating.

Censor in Chief

President Barack Obama's administration apparently likes its entertainment served up family-style: it has asked the US Supreme Court to review a court decision that defanged the FCC's restrictions on TV profanity and nudity.

In two separate decisions, a federal appeals court in New York ruled that the FCC's indecency policy was too vague to be applied in two rather blatant situations. One involved the use of 'fuck' on an awards shows on the FOX network, and the other concerned full-frontal nudity of a woman on ABC's NYPD Blue. In both cases, the court ruled that the FCC could not impose fines.

Now, acting US Solicitor General Neal Katyal is filing an appeal to the Supreme Court, saying the precedent now precludes the commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934.

If the court accepts the case, it will in the coming weeks.

The Supreme Court has announced that it will take up a case to determine whether the Federal Communications Commission (FCC) enforcement of broadcast decency rules is constitutional.

The court will begin to hear arguments this fall in what is expected to be a fierce battle between the TV censors and the broadcasters over First Amendment interpretations.

The FCC's role as an arbiter of what is and isn't prudent to air during hours when children may be watching has come under intense scrutiny. Nutter complaints about broadcast TV and radio have skyrocketed in recent years.

We are hopeful that the Court will affirm the Commission's exercise of its statutory responsibility to protect children and families from indecent broadcast programming, a spokesman from the FCC chairman's office said in a statement.

Last year, the Court of Appeals in New York sided with broadcasters, saying the FCC's authority as decency watchdog was vague and that its enforcement could have a chilling effect on the broadcast industry.

A US federal appeals court has again threwn out a $550,000 fine against CBS by the US TV censors of the Federal Communications Commission (FCC) for Janet Jackson's wardrobe malfunction during the 2004 Super Bowl halftime show.

The United States Court of Appeals for the Third Circuit in Philadelphia had issued a similar ruling in July 2008. But that decision was sent back to the appeals court in May 2009 by the Supreme Court after it ruled in a separate case that the FCC had the right to hold broadcasters accountable even for unscripted and isolated foul language.

The appeals court heard another round of arguments in the Janet Jackson case in February 2010. It has now ruled that while the FCC had the authority to police fleeting images, the nipple-baring episode was on-screen for nine-sixteenths of a second, the commission acted arbitrarily because it had not announced that it had changed its policy until after it decided to fine CBS.

The FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy, the appeals court said in a 2-to-1 decision written by Judge Marjorie O. Rendell and joined by Judge Julio M. Fuentes.

The majority said the decision by the FCC was arbitrary and capricious because the commission did not announce that it was stiffening its guidelines for fleeting material until March 2004, after the February 2004 Super Bowl broadcast.

Starting this Tuesday, the US Supreme Court will begin hearing arguments in Case No. 10-1293, better known as Federal Communications Commission, et al v. Fox Television Stations, Inc., et al.

The case will revive a discussion, and start a process to determine, on what federal indecency restrictions should be placed on radio and television broadcasters.

The Supreme Court case concerns incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying Fuck 'em. I still have a job and they don't. A year later, Nicole Richie said, Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.

The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines. 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 case will also look at a scene involving brief nudity on a 2003 episode of NYPD Blue.

Of course, the upcoming ruling will also affect radio broadcasters, who are under essentially the same indecency guidelines as their television counterparts. The Obama administration has stated in court that broadcasters should present a relatively safe medium for...children. One hopes, however, that while this case looks at off-the-cuff profanity, the FCC will begin to move closer to specific guidelines so broadcasters can be certain what is, in fact, deemed indecent and what isn't.

Update: Court hears government case for TV censorship

11th January 2012. See article from wlwt.com

The Supreme Court appeared ready to give government regulators the continuing authority to regulate profanity and sexual content on broadcast television after a lively hour of arguments.

The justices and lawyers all stayed polite, not actually using any obscene words, preferring the legally acceptable f-bomb or s-word to describe the controversial content at issue in the high-stakes free speech dispute.

The court will decide whether the Federal Communications Commission may constitutionally enforce its policies on fleeting expletives and scenes of nudity on television programs, both live and scripted.

In many televised instances, one cannot tell what is indecent and what isn't said Justice Ruth Bader Ginsburg. It's the appearance of arbitrariness about how the FCC is defining indecency in concrete situations, she added.

But with so many programming choices on broadcast, cable and satellite TV, All the government is asking for is a few (broadcast) channels where you can say -- they are not going to hear the s-word, the f-word. They are not going to see nudity, Chief Justice John Roberts said.

The court's ruling, which will come in a few months, could establish important First Amendment guidelines over explicit content on the airwaves.