Judges quiz lawyer on FCC indecency rule

Wednesday, December 20, 2006 · Last updated 2:00 p.m. PT

By LARRY NEUMEISTER
ASSOCIATED PRESS WRITER

NEW YORK -- Federal appeals judges Wednesday challenged a government lawyer over the Federal Communications Commission's tough new policy against accidental use of profanities in broadcasts.

Amid legal arguments that sometimes included the F-word itself, a three-judge appeals court panel took a skeptical attitude toward what Fox Television Stations Inc. said was the FCC's radical expansion of its authority to severely punish what it cites as indecent speech.

The judges did not immediately issue a ruling.

At a minimum, at stake was the FCC's finding of indecency in two broadcasts of the Billboard Music Awards: the 2002 show in which Cher used a profanity, and the 2003 show in which reality TV star Nicole Richie did the same while telling a story about a Prada purse.

Also discussed during Wednesday's arguments was NBC's 2003 broadcast of the Golden Globes awards show when singer Bono uttered an obscenity.

Broadcasters are fighting the FCC conclusion that the broadcasts were indecent, even though no fines were issued. The FCC said the "F-word" in any context "inherently has a sexual connotation" and can be subject to enforcement action.

The government lawyer defending the FCC policy, Eric D. Miller, surprised some broadcasters when he said news programs covering the hearing could disseminate quotations with the F-word, even the stars' comments themselves, without FCC penalty.

Use of the otherwise indecent words in a news program, he said, would not meet the legal standard for barring them, which requires they be used to pander, to titillate or for shock value.

Later, Judge Peter W. Hall suggested that some people might find that awards shows themselves had news value as well.

And Judge Rosemary S. Pooler told Miller that broadcasters were troubled because they believe the FCC is subjective about what it believes is indecent.

"This seems to be a scheme that depends on what you think, instead of having an objective criteria broadcasters can use," she said.

The arguments were colorful as lawyers and judges alike found themselves uttering profanities. At one point, Judge Pierre N. Leval, suggesting that context matters, sparked some laughter when he asked Miller: "Would you be shocked to hear that a judge on the federal bench said `f---?'"

In written arguments submitted to the appeals court, Carter G. Phillips, a lawyer for Fox Television Stations, said for 30 years, the FCC had "never deemed fleeting, isolated or inadvertent expletives to be indecent."

The changes in rules, he said, mean "the end of truly live television and a gross expansion of the FCC's intrusion into the creative and editorial process."