UPDATE: 2d Cir. Overturns 'Cheeky' FCC Indeceny Fine Against ABC

Image via WikipediaIn ABC v. FCC (Case No. 08-0841), the U.S. Circuit Court of Appeals for the Second Circuit this week vacated a Forfeiture Order issued by the FCC in February 2008, against ABC and 44 of its affiliate stations that aired the naked buttocks of actress Charlotte Ross for seven seconds in a February 2003, episode of NYPD Blue.

Ia a 9-page decision, the appellate court followed up on its ruling last July in Fox Television Stations, Inc., v. FCC (Case No. 06-1760) that the FCC's indecency policy regarding "fleeting expletives" was unconstitutionally vague and violated the First Amendment. (See "TUOL" post 7/13/10.) Alluding to its earlier Fox ruling regarding the FCC's context-based indecency test, the Court wrote: "The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is constitutionally vague."

The NYPD Blue episode, Nude Awakening, featured a scene in which Ross' Connie McDowell character is preparing to shower when her detective boy friend, Andy Sipowicz's (Dennis Franz) young son walks in on her, thereby getting a view of frontal nudity that the audience was denied. The FCC received complaints about the episode showing Ross' backside (none from the devoted "TUOL" staff) and imposed a $27,500 penalty-- $13,750 per buttock--against each of ABC's 44 affiliate stations that aired the 9 p.m. episode for an aggregate $1.21 million penalty. Under the FCC's so-called safe haven rule, indecent material may not be broadcast between 6 a.m. and 10 p.m.

The 2d Circuit, however, found the FCC's nudity policy that determined that showing a woman's naked buttocks was indecent was unconstitutionally vague and overturned the fine.

2d Circ. for 2nd Time Rejects FCC Indecency Standard

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The U.S. Court of Appeals for the Second Circuit ruled this week in Fox Television Stations, Inc. et al. v. Federal Communications Commission (Docket Nos. 06-1760, 06-2750, 06-5358) that the FCC's Indecency Policy toward television airwaves is an unconstitutional violation of the First Amendment.

In 2007, a three-judge panel of the 2d Circuit found the FCC's indecency policy "arbitrary and capricious" under the Administrative Procedure Act( ("APA") [5 U.S.C. sec. 706(2)(A)]. The U.S. Supreme Court reversed the ruling  in Fox Television Stations, Inc. v. FCC, 129 S.Ct. 1800 (2009), upholding the validity of  the APA and ordering the 2d Circuit to consider the plaintiffs' constitutional arguments on remand.

The appellate court concluded the FCC's policy: "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." The 2d Circuit, noting in its 32-page decision that the Supreme Court protects indecent speech (Reno v. ACLU, 521 U.S. 844 (1997)), said the FCC's current policy fails constitutional scrutiny, but left open the possibility that the agency conceivably could enact indecency rules that might pass constitutional muster.

The 2d Circuit offered an example of the vagueness of the FCC indecency rules, pointing out that the FCC found the use of the word bullshit in an episode of the now-defunct  cop show NYPD Blue patently offensive, but had no problem with the use of the words dick and dickhead in the same episode. Under its 2001 Industry Guidance, the FCC said finding content indecent required determining: 1) a description or depiction of sexual or excretory organs or activities and 2) the broadcast was patently offensive as measured by contemporary community standards for the broadcast medium.

The appellate court granted the plaintiffs' petition for review.

2nd Circuit to Decide if Fox Is F***** in FCC Indecency Case

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The U.S. Circuit Court of Appeals for the Second Circuit will hear arguments on Jan. 13 regarding whether the FCC's "fleeting indecency" rule violates freedom of speech under the First Amendment.

The case, Fox v. FCC (Case No. 06--1760) concerns Cher dropping the "f-bomb" during the 2002 Billboard Music Awards telecast and Nicole Richie using both the "f-word" and the "s-word" during the 2003 broadcast of the Billboard Music Awards. Both programs aired on Fox.

The Second Circuit previously ruled that the FCC had not articulated a "reasoned basis" for an indecency policy that imposes liability for a single fleeting expletive. The Supreme Court overruled the appellate court, finding that the regulatory agency offered a reasoned basis for the change in its indecency enforcement policy, but remanded the case to the Second Circuit to address whether the new policy runs afoul of the 1st Amendment.

Fox executives are probably wondering to themselves: "Why do we keep telecasting the @#*#@!!! Billboard Music Awards?"

End in Sight for Wardrobe Malfunction Saga

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The U.S. Circuit Court of Appeals for the Third Circuit last week heard arguments in the two-and-a-half-year-old titanic struggle between the FCC and CBS, Corp. over the broadcast of  Janet Jackson's bare breast for nine-sixteenths of a second during the halftime show of Super Bowl XXXVIII in 2004.

In May 2009, the U.S. Supreme Court granted the FCC's petition for writ of certiorari and vacated the judgment in favor of CBS, remanding the case to the Third Circuit for further review based on the High Court's ruling  in FCC v. Fox Television Stations (Case No. 07-582; 556 U.S. __ (2009)).

CBS initially was fined $550,000 by the FCC for broadcasting the "indecent" exposure of Jackson's breast during her performance of "Rock Your Body" with Justin Timberlake in violation of 18 U.S.C. sec.1464 and 47 C.F.R. sec. 73.39999. CBS prevailed in its appeal to the Third Circuit, which vacated the FCC orders, finding that the agency "acted arbitrarily and capriciously" in violation of the Administrative Procedure Act  5 U.S.C. sec. 706. The appeals court was unpersuaded by the FCC's claim that CBS was vicariously liable for the performers' conduct (CBS v. FCC, Case No. 06-3575). CBS had a five-second audio delay in place to repel profanity but no corresponding safeguard against naughty video images.

In the sequel before the Third Circuit last week, the FCC argued that CBS was vicariously liable for not having preventative measures in place to shield against a foreseeable flashing by Jackson. For its part, CBS countered that it had no prior knowledge that Jackson would take her boob tube appearance literally, and had implemented measures that any reasonable broadcaster could have taken to guard against such an unpredictable occurrence.

Five years after the 90 million viewers who watched the Halftime Show caught a split-second glimpse of Janet Jackson's breast, the FCC has stayed firm and its interest in the matter has held up, which is more than can be said for Janet Jackson's breasts.