WASHINGTON -- The federal appeals court in New York on Monday tossed out a key FCC indecency ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to.
"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.
Although a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.
But even the court's remand came with a catch as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.
"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote. "Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go not further than this opinion."
FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong and not the commission.
"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," he said in a statement. "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."
In its original decision, the commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards aired by the Fox Broadcasting Co. were indecent and profane.
Opponents of the commission's attempts to regulate speech called the decision a victory.
"Score one for the First Amendment," Media Access Project president and CEO Andrew Jay Schwartzman said. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."
MAP attorneys represented the Center for Creative Voices in Media as intervenor in the case. CCV's members include many in the creative community, and its brief to the court stressed the effect of the FCC's action on writers, directors and other artists.
The decision did not go unnoticed in Hollywood as AFTRA, DGA, SAG, WGA East and WGA West issued a joint statement applauding the decision.
"Actors, directors, writers and broadcast personnel are pleased that the 2nd Circuit Court of Appeals today rejected the FCC's effort to expand their authority and influence over creative content," the guilds said.
"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.
Although a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.
But even the court's remand came with a catch as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.
"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote. "Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go not further than this opinion."
FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong and not the commission.
"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," he said in a statement. "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."
In its original decision, the commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards aired by the Fox Broadcasting Co. were indecent and profane.
Opponents of the commission's attempts to regulate speech called the decision a victory.
"Score one for the First Amendment," Media Access Project president and CEO Andrew Jay Schwartzman said. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."
MAP attorneys represented the Center for Creative Voices in Media as intervenor in the case. CCV's members include many in the creative community, and its brief to the court stressed the effect of the FCC's action on writers, directors and other artists.
The decision did not go unnoticed in Hollywood as AFTRA, DGA, SAG, WGA East and WGA West issued a joint statement applauding the decision.
"Actors, directors, writers and broadcast personnel are pleased that the 2nd Circuit Court of Appeals today rejected the FCC's effort to expand their authority and influence over creative content," the guilds said.
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