FCC Drops Two, Upholds Two Remanded TV Indecency Cases

Jonathan Adelstein

The FCC has dropped two and upheld two of the indecency cases against TV stations that were remanded to it by the Second Circuit Court of Appeals. The original MARCH 15 opinions held that swearing in the telecasts of the 2002 and 2003 BILLBOARD MUSIC AWARDS shows, "NYPD BLUE," and CBS's "THE EARLY SHOW" were indecent, but upon remand the Commission ruled that the "EARLY SHOW" airing of "bullshitter" was during a news program and therefore not actionable, and ruled that the "NYPD BLUE" complaint was "inadequate to trigger enforcement" because the complaints came from outside the station's market. The BILLBOARD shows, aired by FOX, were ruled "indecent and profane."

it was my hope that the Commission would use this remand to clarify and rationalize our indecency regime

Only Commissioner JONATHAN ADELSTEIN dissented in part, because, he said, "it was my hope that the Commission would use this remand to clarify and rationalize our indecency regime, but regulatory convenience and avoidance have prevailed instead." ADELSTEIN charges that the Commission is avoiding making a final ruling on the BONO "f-word" GOLDEN GLOBE AWARDS case and complains that the FCC was given the remand to consider the concerns raised by broadcasters over the BILLBOARD case but did not "adequately address" the original denial on the merits.

He also rips the "EARLY SHOW" ruling as "arbitrary, subjective, and inconsistent," creating a "new 'plausible' standard to determine the threshold question of whether a particular program segment qualifies as a 'bona fide news interview,'" deferring to a broadcaster's "plausible characterization of its own programming." 

Finally, ADELSTEIN objects to the "NYPD BLUE" dismissal because the Commission used a local "contemporary community standard" definition, not a national standard, to determine that only a station in a market where a complaint had been filed would be subject to punishment.

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