Fox Television Stations, Inc. et. al. v. FCC et. al. (Challenging aspects of FCC’s regulation of the public airwaves)

The issue in this case is the Federal Communications Commission’s (FCC) regulation of public airwaves conflicting with the freedom of expression. In March 2006, the FCC issued a lengthy ruling, the “Omnibus Order,” setting new standards for “indecency” and “profanity” on the airwaves, and generally banning “fleeting expletives.” The FCC then applied these standards to numerous viewer complaints from 2002 to 2005. Ten broadcasters were found guilty of indecency and six were also found guilty of profanity. The commission imposed monetary fines on six of the ten, but for four programs that had only “fleeting expletives,” it imposed only warnings. It was these four programs that were up for review in the Second Circuit.

On Nov. 30, 2006, the NYCLU, in conjunction with numerous other organizations, filed an amicus curiae brief urging the United States Court of Appeals, Second Circuit, to strike down the FCC indecency and profanity policies. The brief detailed the history of FCC rulings on indecency and profanity. The brief argued that not only does the FCC operate on the basis of shaky legal ground, the commission’s rulings on indecency and profanity are unclear and overbroad. It also noted that the FCC policies have led broadcasters to self-censor in order to avoid potentially unbearable fines. On June 4, 2007, the Second Circuit found in favor of the plaintiffs. The court decided that the “fleeting expletives” rule was “arbitrary and capricious” and ordered the FCC to rewrite its indecency policy. 

U.S. Court of Appeals, Second Circuit, Index No. 06-2750-ag (amicus)