• by Wayne Friedman , December 22, 2006

Fox Broadcasting Co. told a panel of appellate judges on Wednesday that FCC sanctions levied against the network over the use of profanity for its Billboard Awards were not warranted. The net argues that the agency didn't provide a "reasoned analysis" of why it changed its policy.

"We have 30 years of unbroken precedent, where the commission recognizes that the use of its expletives is offensive to some, but has never declared that the use of these expletives is the basis for any kind of sanction," Fox's counsel Carter Phillips told the Second Circuit Court of Appeals in New York City.

The oral arguments arose from FCC sanctions against Fox for the airing of the Fox Billboard Awards in 2002. During the broadcast, Cher responded to her critics by saying, "Fuck 'em."

Then in 2003, Nicole Richie commented on the Billboard Awards Show about her own show, "The Simple Life": "It was hardly all that simple--does anyone know how fucking hard it is to get cow shit out of a Prada purse?" There were no monetary penalties imposed by the FCC against Fox for either incident.

The FCC doesn't categorically bar these words, said Phillips, although he says the federal agency has declared them profane.

"I don't think there is a reasoned analysis," he said, concerning the FCC ruling. Judge Pierre Leval believed the FCC seemingly gave Fox a "reasoned" argument--that it could be harmful to children.

"Can you regulate this kind of speech?" asks Phillips. "I don't think so." He doubted that a child could be damaged by the utterance of a single profane word.

"That would have to be what you are looking for," explained Judge Rosemary Pooler. "Their [FCC] argument that they really are preventing harm to an identifiable population." At the end of the day, Carter says, it's about recognizing the First Amendment protections.

"Speech that is indecent must involve more than an isolated use of a word," says Phillips, gleaning his position from a 1978 Pacifica decision on several words deemed profane by the FCC.

Phillips notes that there were numerous cases of so-called "fleeting expletives" on TV and radio between the 1978 Pacifica decision and a 2004 FCC ruling of profane use of words during the Golden Globe Awards.

Phillips wonders why words become overwhelming in 2004, but were not a "source of any concern from 1978 to 2004?"

Eric Miller, an attorney for the FCC, responding to the charge of non-action on fleeting expletives: "There is nothing in the record to the extent that they existed during that time. But what the commission did in its [Pacifica order of 1978] was to say that evaluation of context is critical."

"So therefore, it is inappropriate to take what ought to be just one factor--mainly a statement repeated or isolated--and elevate that one factor to determine significance. Rather, it's appropriate to view all the factors together," says Phillips. He added that the FCC doesn't have any rule that multiple expletives are indecent.

The court now has to weigh the arguments, with a decision not expected until February or March. But profanity issues will be front and center in the new year. By December 26, the FCC will defend its CBS-Janet Jackson Super Bowl fine.