Bono's f-word freebie was a split decision

Despite FCC guidance to broadcasters to the contrary, in last week's lone TV action (3/19/04 RBR Daily Epaper #55) all five commissioners held that Bono's Golden Globes verbal slip-up was in fact indecent. The ruling overruled an Enforcement Bureau ruling which let NBC and Bono off the hook since use of the word was isolated and fleeting. However, the decision to let the incident go unfined passed by a narrow 3-2 margin.

The majority took its precedent on the matter into account when letting the accused off the financial hook, but served notice that this will be the new precedent for use of the f-word under any circumstances.

In the Commissions words: "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."

"Today, we overturn the Enforcement Bureau's October 2003 decision and find that the use of the 'f-word' during last year's broadcast of the Golden Globes violates the federal statute," said Chairman Michael Powell. "This sends a signal to the industry that the gratuitous use of such vulgar language on broadcast television will not be tolerated."

He explained the lack of a fine. "Given that today's decision clearly departs from past precedent in important ways, I could not support a fine retroactively against the parties. Prospectively, parties are on notice that they could now face significant penalties for similar violations."

The Commissioners did not vote along party lines. Powell was supported by Commissions Kathleen Abernathy, a Republican, and Jonathan Adelstein, a Democrat.

Democrat Michael Copps and Republican Kevin Martin approved in part and dissented in part. As Martin put it, "I disagree, however, with the Order's characterization of our precedent on indecency, and the corresponding conclusion that licensees were not on notice that the f-word is indecent. Even more troubling is the conclusion that we cannot issue a fine for the use of profanity...How ironic that the majority relies on the Commission's own failure to enforce its statutory mandate as the basis for NBC not knowing that the f-word was profane."

RBR observation:

With all due respect to Commissioners Copps and Martin, there was every reason for licensees to think the Bono incident was not actionably indecent based on the material provided, with great ballyhoo, we might add, by the Commission itself.

For graphic illustration, see "A Child's Garden of Perverse, Part 2" below, as well as Part 1, which ran Friday (3/19/04 RBR Daily Epaper #54).

Broadcasters were clearly given guidance that an event such as the Bono incident was not considered indecent. Powell was exactly right in backing off of a retroactive fine.

If you want to change the rules, fine. But you can't go into the past and try people who committed an act before it became a crime. It'd be like going after Sherlock Holmes for cocaine use (we know, we know, Sherlock is a fictional character - - but you get the idea).

If this case were to go to trial, with the FCC's own documentation as Defense Exhibit A, it would be laughed out of court.