FCC, Fox Square Off On Profanity...Again

The Federal Communications Commission and Fox went at it again Wednesday (Jan. 13) over the issue of swearing in a live broadcast, and a pair of courtroom observers said the FCC had a rough time of it.

"This was a slaughter," said Andrew Schwartzman of Media Access Project, which represents the Coalition for Creative Voices in Media and the Future of Music Coalition. Schwartzman essentially dispensed with the usual caveat that it is hard to predict judges in oral argument. "In this case there was no doubt," he said. "There was some discussion toward the end of the argument about how far to go, but all three judges were clearly ready to find that the FCC's policies are unconstitutional. Judges Rosemary Pooler, Pierre Level and Peter Hall heard the case, the same three that presided the first time around. Schwartzman said Judge Pooler was ready to say that the FCC's authority didn't extend beyond the seven dirty words of the Pacifica decision, while Judge Leval wasn't going as far as that, but signaled he thought that the FCC's policy advice was unconstitutionally vague without getting into Pacifica, while Hall was "adamant that this was unconstitutionally vague," said Schwartzman.