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.

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.

The US TV censors of the Federal Communications Commission has asked the Supreme Court to review a lower court's decision to rescind the $550,000 fine the FCC gave CBS after the Janet Jackson wardrobe malfunction at the Super Bowl halftime show in 2004.

In January, the U.S. 3rd Circuit Court of Appeals denied a full-court rehearing of the 2011 decision by a three-judge panel that the FCC's fine of CBS stations was arbitrary and was a policy change for which CBS stations were improperly penalized.

The FCC said in its petition that the court should not have found that its indecency policy was an arbitrary and capricious departure from precedent.

The Obama administration has asked the Supreme Court to review a federal court's decision that the FCC acted capriciously in levying huge fines for a 1/2-second nipple shot. In this regard, they are clones of the Bush Administration. And in this regard they are no friend of the American people, no friend of free speech, no friend of freedom.

So why are two successive presidencies, not to mention the national morality apparatus, obsessed with a half-second of nipple? Why are millions more of your tax dollars about to be spent attempting to punish CBS for what they failed to prevent over 8 years ago?

...Read the full article

Broadcasters have won the latest round in their long running battle with US TV censors over the limits of decency on the small screen.

In a Supreme Court judgment, the justices sided with Fox and ABC against the Federal Communication Commission (FCC) over the broadcasting of momentary expletives and nudity.

The ruling related to two separate incidents in which the FCC moved against broadcasters for indecency transmitted before the 10pm watershed. The first concerned a Fox broadcasting of the Billboard Music Awards in 2002 in which Cher said fuck on live TV, followed by a similar expletive by Nicole Richie at the same awards the following year. The second was a 2003 episode of NYPD Blue , in which the actress Charlotte Ross exposed her backside for seven seconds.

The FCC fined ABC $1.4m for indecency, but this seemed to be a sudden change in policy in response to pressure from moralist campaigns.

The supreme court found that in both cases the broadcasters had been given insufficient notice to be aware that they were in breach of the rules. Previous decisions by the FCC, the court noted, had taken no action against TV networks for isolated and brief moments of nudity. The judgement said:

Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.

The long legal battle between CBS and the Federal Communications Commission over Janet Jackson's wardrobe malfunction during the 2004 Super Bowl halftime show is over.

The Supreme Court has refused to hear the FCC's request to reinstate a $550,000 indecency fine against CBS for the halftime performance featuring Jackson and Justin Timberlake, who at the end of a song tore a piece of Jackson's top, exposing her bare breast to an audience of about 90 million.

So the legal trail end at the last judgement in November when an appeal court in Philadelphia upheld its earlier ruling that the FCC's indecency fine against the network was invalid. The court didn't say whether the incident was indecent but said the FCC's fine represented an undisclosed change in the enforcement of its policy with regard to fleeting images and hence could not be enforced.

In a statement, CBS said it was gratified to finally put this episode behind us and noted that at every major turn of this process, the lower courts have sided with us. The network added that since the Super Bowl, it has added delays to all live programming to prevent similar incidents from happening.

After the US Supreme Court's decision in FCC v. Fox Television Stations in September 2012, FCC Chairman Julius Genachowski has initiate a review of the Commission's broadcast indecency policies and enforcement to ensure they are fully consistent with First Amendment principles.

In the interim, the Chairman directed the Enforcement Bureau to focus its indecency enforcement resources on egregious cases and to reduce the backlog of pending broadcast indecency complaints.

The Bureau has reduced the backlog by 70% so far, more than one million complaints, principally by binning them on the grounds that it had taken so long to process them that they were too stale to pursue.

The FCC now seek comments on whether the full Commission should make changes to its current broadcast indecency policies or maintain them as they are.

Update: American Family Association have their two Penneth

5th April 2013. See  article from  christianpost.com

The American Family Association, a major pro-family group, has announced that Americans should petition the FCC to uphold high television, radio decency standards.

In addition to the overarching negative impacts of indecency in media on children, a more immediate issue exists: radio 'shock jocks' that thrive on shocking even the most hardened of sensibilities will have even greater latitude to express even more profanity without the worry of FCC censure, states AFA.

Last week, ABC, CBS, FOX, and NBC each filed individual requests to the US TV censors of the FCC asking for the removal of government-regulated indecency standards.

According to FCC.gov:

It is a violation of federal law to air indecent programming or profane language during certain hours. Congress has given the Federal Communications Commission (FCC) the responsibility for administratively enforcing these laws, the FCC's website continues. The FCC may revoke a station license, impose a monetary forfeiture or issue a warning if a station airs obscene, indecent or profane material.

In response to the current laws, the major TV networks expressed their desires to overturn the restrictions of the FCC's indecency standards.

FOX said:

The FCC should affirm that it has no right to deny broadcasters the same First Amendment protections enjoyed by every other medium of communication,

NBC added:

Broadcast TV is not a uniquely pervasive presence in the lives of 21st century Americans.

The Parents Television Council (PTC) has issued a press release commenting on the FCC proposal to end fines for broadcasting fleeting strong language and nudity like Janet Jackson's 'wardrobe malfunction'.

The PTC President Tim Winter wrote in a press release:

The FCC asked for the public's comment, and they got it. By a margin of nearly 1,000 to 1, the American public told the FCC to enforce existing broadcast indecency law, and not to weaken it. The only question now before the FCC is whether to heed or disregard the public's comments that they, themselves, asked for.

The broadcast networks and their agents continue to cloud the issue at hand by arguing against the very existence of the broadcast indecency law. They are trying to re-litigate the Supreme Court cases that they lost, rather than focus on the FCC's proposal to focus only on 'egregious' instances of indecency.

It is essential for the FCC to remember whose interest it is that they are mandated by Congress to serve. The sheer volume of public comments -- over 102,000 comments that were individually filed by individual Americans, and were roughly 1,000 to 1 in favor of keeping existing indecency standards -- speaks louder than the broadcast networks that want to dismantle the law.

The American people have spoken. We call on the FCC to hear and to heed the public's overwhelming support for the existing broadcast indecency law. And we call on the Commission to reject the proposed change to the law as crafted by its outgoing and now-departed chairman.