By Jim Puzzanghera, Times Staff Writer
WASHINGTON -- The Federal Communications Commission agreed it may be
OK to swear on a news show, but profanities on other programs are
still verboten.
On Tuesday, the agency reversed a March ruling it made that use of the
word "bullshitter" on the CBS program "The Early Show" was
indecent. That decision was particularly controversial because news
shows traditionally have wide leeway on language.
The incident involved a live 2004 interview with a contestant on CBS'
"Survivor Vanuatu" who used the word to describe a fellow contestant
on the reality show. But this week the FCC said it was deferring to a
"plausible characterization" by the network that 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
federal court 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 First Amendment protections are at take," 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
any objections.
Even with the ruling, experts said the FCC still has 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' recent 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 Globe 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. But because of its mixed messages on the issue, the FCC
said it was not fining those incidents, and therefore did not give the
broadcasters a chance to convince the agency the ruling was wrong.
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Jim Puzzunghera (times@telecom-digest.org)