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Analysis: Will FCC Bite The Big One?

Analysis: Will FCC Bite The Big One?

This morning, the Second Circuit U.S. Court of Appeals heard argument in the broadcast indecency case of Fox Broadcasting v. Federal Communications Commission (FCC) – and if one can judge by the questions asked by the three-judge panel (and sadly, one too often can't), it should be a slam-dunk for Fox when the decision is handed down several weeks from now.

At issue were two off-the-cuff utterances by performers at the 2002 and 2003 Billboard Music Awards show; one in which Cher responded to critics with a curt, "Fuck 'em," and another where Nicole Richie, describing her role in the sitcom The Simple Life, complained, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"

But central to the entire question before the court is the FCC's stated position that only certain kinds of utterances in certain contexts will draw the FCC's ire (and fines, which were recently increased to $325,000 per violation), which led Judge Peter Hall to ask the FCC's attorney Eric Miller, "[If] Fox, wanting to air, so its viewers are reminded what's at issue here, pulls up the clips from the Billboard Music Awards and shows those two instances of Chere and Nicole Richie as background or in conjunction with reporting on what's happening in this courtroom here today," would that be indecent?

Miller agreed that it wouldn't .. and therein lay the problem.

Check back later today for more on this vital story.

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Mark Kernes

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