Top court to review FCC indecency rule case

WASHINGTON Mon Mar 17, 2008 1:43pm EDT

A police officer patrols in front of the Supreme Court building January 13, 2006. REUTERS/Joshua Roberts

A police officer patrols in front of the Supreme Court building January 13, 2006.

Credit: Reuters/Joshua Roberts

WASHINGTON (Reuters) - The U.S. Supreme Court said on Monday it would take up the issue of foul language on the airwaves for the first time in 30 years, agreeing to review a ruling that undercut the way regulators define indecency on television.

The high court agreed to hear an appeal by the FCC, which is seeking to reaffirm its authority to declare a single "fleeting" utterance in violation of its indecency rules.

The FCC appealed to the high court in an effort to overturn a June 4 ruling by the Court of Appeals for the Second Circuit in New York, which found that the agency had failed to justify its standard for "fleeting" indecency.

The case stemmed from an FCC ruling in March of 2006, in which the agency found News Corp's Fox television network violated decency rules when singer Cher blurted "f***" during the 2002 Billboard Music Awards broadcast and actress Nicole Richie used a variation of that word and "s***" during the 2003 awards.

No fines were imposed. But Fox challenged the decision in court, arguing that the government's decency standard was unclear, violated free-speech protections and that the rulings had contradicted earlier findings.

The appeals court sided with Fox, saying the FCC had "failed to articulate a reasoned basis" for its "fleeting" indecency standard and expressed skepticism about whether the courts would find it constitutional. It sent the matter back to the agency for further consideration.

The FCC said in its appeal to the high court that the appellate ruling should be reversed as it conflicted with a past Supreme Court ruling and is "inconsistent with settled principles governing judicial review of agency action."

The chairman of the FCC, Kevin Martin, said on Monday that he was glad the high court had agreed to review the case.

"I continue to believe we have an obligation ... to enforce laws restricting indecent language on television and radio when children are in the audience," Martin said.

Fox issued a statement saying it was also was pleased by the decision "as this will give us an opportunity to demonstrate once again the arbitrary nature of the FCC's decision in this and similar cases.

"It will also give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace where parents have access to a variety of tools to monitor their children's television viewing," Fox said.

Monday's decision marks the first time the Supreme Court has taken up the issue of broadcast indecency since its 1978 decision in the case FCC v. Pacifica Foundation.

That case centered on the radio broadcast of a monologue by comedian George Carlin called "Filthy Words." In its ruling, the high court upheld the FCC's authority to sanction indecent material broadcast over the airwaves.

The FCC, under the administration of President George W. Bush, embarked on a crackdown of indecent content on broadcast TV and radio after pop star Janet Jackson briefly exposed her bare breast during the 2004 broadcast of the Super Bowl halftime show.

The Supreme Court is expected to hear arguments in the case and to issue a decision during its upcoming term that begins in October.

(Editing by Tim Dobbyn, Leslie Gevirtz)

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