Written by: Eric Wasik
Researched by: Tom Borton
Edited by: Alexander JL Theoharis, Lauren E. Trent

George W. Bush. Dick Cheney. Nicole Richie. Cher. Bono. What do these strange bedfellows share in common? All five might need their mouths washed with soap after a recent Second Circuit Court of Appeals decision regarding the Federal Communications Commission’s “fleeting obscenity” policy. The court struck down the FCC’s new policy of fining broadcasters who allowed blurted curse words on television. A majority of the judges held that the FCC’s change in policy “fail[ed] to provide a reasoned analysis justifying its departure from the agency’s established practice,” and was “arbitrary and capricious.” The majority denounced the FCC’s reasoning for stricter regulations as “divorced from reality.” The regulators did not, however, return to their offices hat in hand: Kevin Martin, Chairman of the FCC, blasted the court as being itself “divorced from reality,” leading the Commission to appeal the decision to the Supreme Court. The Court has granted review and will hear arguments this fall term.
The FCC was established by the Communications Act of 1934 the Communications Act of 1934 to “regulat[e] interstate and foreign commerce in communication by wire and radio.” In other words, the FCC’s control extends to radio and television broadcasts (including cable and satellite), phone services, and Internet service. That initial charter grew into regulation of indecent speech over the airwaves: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” However, the FCC’s right to censor under this regulation is subject to a strict limitation. Section 326 of the Communications Act expressly prohibits the FCC from censoring broadcasts. These seemingly competing mandates necessitate a balancing act for the FCC. They can’t tell people what to put on radio or television, but if a station broadcasts profanity, the FCC can fine them, possibly imprison them, or revoke their license to broadcast after the fact.
Read the rest of this entry »