Court Throws Out FCC's Fleeting Expletives Rules

RADIO ONLINE | Tuesday, July 13, 2010 | 2:14pm CT

An appeals court threw out the FCC's "fleeting expletives" indecency rules on Tuesday. The three-member panel for the Second Circuit Court of Appeals ruled that the Commission's policy on fleeting expletives were actionably indecent was "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The Court also indicated that the FCC's entire indecency policy was invalid. "We agree with the networks that the indecency policy is impermissibly vague," wrote Judge Rosemary Pooler. "It results in a standard that even the FCC cannot articulate or apply consistently."

In April, 2009, the U.S. Supreme Court ruled in a 5-4 decision that the FCC may fine broadcasters for the single utterance of an expletive, throwing out the Second Circuit Court of Appeals previous decision that had found the FCC policy to be arbitrary and capricious. However, the Supreme Court ruling did not consider whether the "fleeting expletives" policy undermines the First Amendment.

Commenting on the court ruling, NAB Executive VP/Communications Dennis Wharton said in a statement, "NAB supports today's appellate court decision. As broadcasters, we will continue to offer programming that is reflective of the diverse communities we serve. We believe that responsible decision making by network and local station executives, coupled with program blocking technologies like the V-chip, is far preferable to government regulation of program content."