The Second Circuit ruled in favor of programmers when it considered FCC fines over the utterance of fleeting expletives, including the f-bomb, on live television. The FCC wants to appeal upward, and the Supreme Court may decide whether or not to take the case soon. According to USA Today, that decision may arrive by early next year.
The FCC’s indecency rules used to hinge on whether questionable content was repeated or intended to pander or titillate. Inadvertent unplanned incidents were generally excused with at worst an admonition. But in the heightened awareness of the topic following Janet Jackson’s moment in the Super Bowl back in 2004, the FCC unilaterally modified the rule to automatically include the f-bomb under any circumstances.
The immediate case concerns f-bombs uttered during various awards programs broadcast live on the Fox Network.
RBR/TVBR observation: A court ruling could be narrow and not really answer the question everyone wants answered: What is and is not OK. An example of a narrow ruling is that the FCC changed the fleeting rule without opening the issue up for public study and commentary, and without public hearings on the matter. The issue could then be remanded to the FCC for reconsideration in a process that provides for public input. Or, we suppose, a court could rule that the fleeting and inadvertent standard was correct all along, and anything less would have an unacceptably chilling affect on live broadcasting. An earth-shaking ruling would be that under the broadest possible reading of the First Amendment, anything goes. The FCC would simply like to be able to levy fines for what it considers to be definitively obscene. Stay tuned.