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ABC Joins Fight To Uphold 2nd Circuit Indecency Decision

ABC Joins Fight To Uphold 2nd Circuit Indecency Decision

WASHINGTON, D.C. – The American Broadcasting Corporation (ABC) had breathed a sigh of relief when the Federal Communications Commission, after having ruled in 2006 that certain "fleeting expletives" uttered on the network's "NYPD Blue" series were indecent, nonetheless found an excuse to avoid fining the network.

But with the ruling just a week ago that a momentary showing of actress Charlotte Ross' bare ass during a shower scene in a 2003 episode of "NYPD Blue" was indecent, and the concurrent levying of $1.4 million in fines against the network and 51 of its affiliates, ABC decided to re-enter the "indecency" fray. Just today, ABC joined the brief filed by Columbia Broadcasting System (CBS) and Fox Broadcasting opposing the FCC's petition to the U.S. Supreme Court that it consider a Second Circuit Court of Appeals ruling of last year that "fleeting expletives" are exempt from FCC oversight.

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ABC's decision now makes opposition to review of the Second Circuit decision unanimous among the four biggest networks, since the National Broadcasting Corporation (NBC) announced that it too will file a similar brief.

The issue involves the FCC's attempt to fine Fox and CBS for single uses of the words "fuck," "fucking" and "cowshit" during the Billboard Music Awards and on CBS's Early Show, as chronicled here.

At issue in the Second Circuit ruling was the fact that the FCC, which had issued an order in March 2006 which allegedly provided guidance as to which on-air utterances were actionable and which weren't, reversed itself and decided that so-called "fleeting expletives" were subject to its jurisdiction and could be fined. The Second Circuit found that the FCC had not provided a reasoned justification for changing its previous policy, but did not rule out allowing the FCC to take similar actions if it could provide that rationale. However, rather than come up with a more convincing explanation of its reasoning, the FCC, after months of delay, decided to take the issue "upstairs."

At the same time, FCC chairman Kevin J. Martin lobbied Congress to pass a law allowing the agency to fine the fleeting expletives, which the Senate graciously did with S. 1780. A similar bill in the House, however, is currently stuck in committee.

The broadcasters, in opposing the petition, have argued that the Second Circuit's decision is fully in line with the Supreme Court's 1978 ruling in FCC v. Pacifica Foundation – the so-called "seven dirty words" case – and that the FCC has misinterpreted the Second Circuit decision, claiming that the decision would prevent the commission from looking at the context of a broadcast when regulating claimed indecent utterances. Of particular interest is the fact that the Pacifica decision itself exempted "the isolated use of a potentially offensive word."

An excellent analysis of the FCC's decision to fine ABC can be found here.






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Mark Kernes

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