According to numerous reports, FCC Chairman Michael Powell is proposing that the use of the F-word in the airing of "Saving Private Ryan" by a majority of ABC TV affiliates be excused. It's expected that he will get his way when his four colleagues on the Commission cast their votes.

Powell perhaps telegraphed his position in an OpEd piece which appeared in the New York Times earlier this month (12/6/04 RBR #236). Describing the impossibility of writing one-size-fits-all rules for indecency, he wrote, "Words or actions might be acceptable as part of a news program, or as an indispensable component of a dramatic film, but be nothing more than sexual pandering in another context. That context and the specific facts of each program are reasons the government can't devise a book of rules listing all the bad stuff."

He addressed "Saving Private Ryan" specifically in that article, explaining the FCC's reluctance to offer requested guidance prior to the movie's airing. He wrote, "...the precedent of submitting programming or scripts for government review borders dangerously on censorship. The Communications Act expressly forbids the FCC from banning a program before broadcast, and any such effort might very well run afoul of the First Amendment. This is a step I do not want to take."

The "Private Ryan" case comes in the wake of the infamous 2003 Bono/Golden Globes incident, when NBC caught the U2 frontman's spontaneous use of the F-word. It seemed that the incident was not actionably indecent according to the FCC's own guidelines, escaping on grounds that it was a fleeting reference, not intended to shock, pander or titillate. And so ruled the FCC Enforcement Bureau.

The EB was overruled by the commissioners, however (3/22/04 RBR #56). "The Commission overruled the Bureau decision and also concluded that other cases holding that isolated of fleeting use of the 'f-word' are not indecent are no longer good law. The Commission further concluded that use of the 'f-word' in the context of the Golden Globe Awards was profane under 18 U.S.C. Section 1464."

RBR observation:
From the FCC indecency guidelines: One fine day, a radio newscaster made an error and without thinking blurted out, "Oops, f****d that one up." In its indecency guidelines, the FCC explained its decision not to fine a station "The news announcer's use of a single expletive does not warrant further Commission consideration in light of the isolated and accidental nature of the broadcast."

The Bono decision essentially reversed that policy. Due to the retroactive nature of the commissioners' action, NBC escaped without a fine (by split decision - - Copps and Martin would have nailed NBC regardless). But a line was drawn - - the F-word, and any variation of the F-word, was indecent in and of itself. And broadcasters were now responsible for unplanned accidents which occur on their airspace.

The FCC did leave itself a little wiggle room at the time, saying that any use would subject the broadcaster to "potential" action, in similar situations.

So context still matters. You simply need to determine if your context is sufficient to bear the weight of the F-word; if not, you may pay the freight for carrying the F-word, and it may include an action on your license. The FCC will not give guidance in advance.

So you roll the dice and take your chances. Roll snake eyes now and pay up to 32.5K. If Congress ever gets around to it, the price will be jacked up to as much as 500K.

So, to clarify, use the F-word under any circumstances planned or inadvertent and you will be fined. Or maybe not, if you have context. Is that clear?