FCC backtracks on 2 charges of indecency

WASHINGTON â€”  It may be OK to swear on a news show, but profanities on other programs are still verboten, the Federal Communications Commission announced Tuesday.

The agency reversed a ruling it had made that use of the word “bullshitter� on the CBS program “The Early Show� was indecent. That decision in March was particularly controversial because news shows traditionally had wide leeway on language.

The incident involved a live 2004 interview with a contestant on CBS’ “Survivor Vanuatu� who had used the word to describe a fellow contestant.

But this week the FCC said it was deferring to a “plausible characterization� by the network that the incident was a news interview, which merits a higher standard for indecency violations.

The agency also rejected a complaint about coarse language on several episodes of ABC’s “NYPD Blue� but did so on a technicality because the complaint was made against a TV station by a viewer outside of its market.

Finally, the FCC upheld the main focus of the March ruling: Unscripted profanities uttered during Fox’s broadcasts of the “Billboard Music Awards� in 2002 and 2003 were indecent. In the 2002 show, Cher used the “F-word� after accepting an award. In 2003, Nicole Richie used the “F-word� and the “S-word� in presenting an award.

FCC Chairman Kevin J. Martin defended the new rulings.

“Hollywood continues to argue they should be able to say the F-word on television whenever they want ... the commission again disagrees,� he said.

The new ruling, decided on Monday, comes in the wake of a lawsuit by the four major broadcast TV networks challenging the March action. The U.S. 2nd Circuit Court of Appeals in New York handling the suit gave the FCC until Monday to reconsider those indecency decisions because of some unusual circumstances.

Broadcasters, who had challenged the original ruling as unconstitutional, were pleased with the two reversals, but reiterated their long-standing complaint that FCC guidelines remain inconsistent and murky.

And one commissioner, Jonathan S. Adelstein, alleged that the reversals were not made on merit but to improve the agency’s chances of winning the broadcasters’ lawsuit by jettisoning its weakest parts.

“Litigation strategy should not be the dominant factor guiding policy when 1st Amendment protections are at stake,� Adelstein said. Adelstein did not vote against Monday’s ruling but dissented to those parts of it, the only one of the five commissioners who raised objections.

Even with the ruling, experts said the FCC still had major problems with its case.

“This makes it all the harder to claim we’ve got a set of clear consistent rules, which is what the FCC’s claim has been all along,� said Stuart M. Benjamin, a Duke University law professor and an expert on telecommunications law.

Broadcasters have alleged that the FCC inconsistencies, combined with its more aggressive enforcement and Congress’ tenfold hike in maximum indecency fines, to $325,000 per violation, have chilled the industry.

The March ruling stemmed from an earlier reversal of FCC policy. In 2003, the FCC’s staff concluded that the “F-word� was allowed as an adjective, rejecting complaints about U2 singer Bono’s use of the word in that way during the 2003 Golden Globes Awards telecast.

But in March 2004 -- amid public outcry after Janet Jackson’s breast was briefly exposed during the 2004 Super Bowl halftime telecast -- the FCC reversed itself, ruling any variation of the “F-word� referred to sexual activity and was almost always indecent. The FCC used that new standard in March to pronounce the incidents on “The Early Show,� “NYPD Blue� and the “Billboard Music Awards� indecent.

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