Supreme Court Throws Out FCC Fines

The Supreme Court unanimously threw out fines and sanctions Thursday against broadcasters who violated the Federal Communications Commission policy regulating curse words and nudity on broadcast television.

But the justices declined to issue a broad ruling on the constitutionality of the FCC indecency policy. Instead, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s NYPD Blue could give rise to sanctions. ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million.

The justices said the FCC is free to revise its indecency policy.

It was the second time the court has confronted, but not ruled conclusively on, the FCC’s policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that “it is unnecessary for the court to address the constitutionality of the current policy.”

The case arose from a change in the FCC’s long-standing policy on curse words. For many years, the agency did not take action against broadcasters for one-time uses of curse words. But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

But Kennedy said the commission did not adequately explain that under the new policy “a fleeting expletive or a brief shot of nudity could be actionably indecent.”

The stepped-up indecency enforcement, including issuing record fines for violations, also was spurred in part by widespread public outrage following Janet Jackson’s breast-baring performance during the 2004 Super Bowl halftime show.

That incident, and the FCC’s proposed fine of $550,000, are not part of the current case. The government has an appeal pending of a lower court ruling that threw out the fine in that case.

The material at issue in Thursday’s decision includes the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of the show “NYPD Blue.”

In December 2002, singer Cher used the phrase “F— ’em” during the Billboard Music Awards show on the Fox television network. A month later, U2 lead singer Bono uttered the phrase “f—— brilliant” during NBC’s broadcast of the Golden Globes awards show.