From the Hollywood Reporter:
"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.Media critic Jeff Jarvis has an excellent analysis of this ruling on his blog. Let me add some observations of my own.
First, this ruling is long overdue. The FCC has clouded the waters so much on what will get you fined and what will not. The ruling says as such:
"For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any “sexual or excretory” meaning."In other words, all F's are not uttered equal. We had ABC network affiliates bail out of carrying an uncut version of the movie Saving Private Ryan because f-words were used all over the place. Those words were used in the grit of war, not the height of passion, but with the FCC's ruling on Bono's bomb, who can blame them for playing a safety? Of course, the FCC didn't fine any affiliates who did show the movie, proving the FCC lacks consistency in enforcement, not just rule making.
Second, the appeals court also makes it clear any broadcast indecency regulation is getting harder to justify:
The Networks contend that the bases for treating broadcast media “different[ly]” have “eroded over time,” particularly because 86 percent of American households now subscribe to cable or satellite services. As the Networks argue, this and other realities have “eviscerated” the notion that broadcast content is, as it was termed in Pacifica, “uniquely pervasive” and “uniquely accessible to children.”With uncensored cable networks and the Internet in a vast majority of homes, it does not make sense anymore to require anything that broadcasts over the air -- yet shares the same dial space in most homes -- to be subject to stricter rules. Most basic-cable nets filter out profanity and nudity as well, but technically, they don't have to. They do it more as a gentleman's agreement than anything else, simply because they share that dial space with the broadcast channels.
Also notes the court:
The FCC’s decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech.Guess what: your kids are learning dirty words on the playground -- and if they're hearing it from the tube, they're likely hearing from the cable movie channels, in the cinemas, or from DVD's. Those sources get a pass, or ratings, or parental control.
All of the FCC's flimsy arguments simply don't hold up in front of both the First Amendment and media world we live in. I'm hoping the FCC appeals this to the Supreme Court and we finally get a decision knocking some sense into them and clearing up the fog surrounding this issue.
FCC Chairman Kevin Martin is afraid if this ruling stands, it will lead to networks cursing like The Sopranos on fast-forward. Baloney. Those of us who are offended will simply tune out profanity. We do that already. Networks will offer "family-friendly" entertainment. They do that already, too.
A V-chip? Try some parenting for a change. Try watching TV as a family. Try talking about what you watch, and try explaining to your children why a dirty word is a dirty word. Enlighten them on why people don't use those words -- or at least try not to use them. The FCC will never be able to do that.