US networks were celebrating today after a US appeals court threw out a Federal Communications Commission (FCC) ruling against the Fox television network, saying that the agency's new policy on indecency was "arbitrary and capricious".
At issue was Fox's broadcast of the Billboard Music Awards in December, 2002, at which the singer Cher used the phrase "F*** 'em", and the same awards show a year later at which Nicole Richie asked: "Have you ever tried to get cow s**** out of a Prada purse? It’s not so f***ing simple.”
Although both were considered "fleeting" or one-time use of expletives, the FCC later ruled that the broadcasts failed its indecency test - which had just been modified after the Irish rock star Bono swore on live TV at an earlier awards show - and handed Fox a reprimand.
Fox, backed by other television networks and stations, appealed and yesterday the 2nd US Circuit Court of Appeals, found in its favour, ruling that the FCC had failed to explain properly why it had changed its long-term policy on the fleeting use of profanity. Fox is owned by News Corporation, parent company of The Times and Times Online.
In a 2-1 verdict, the court ruled that the FCC's action had been "arbitrary and capricious", breaching the Administrative Procedure Act. But although it agreed with the networks' suggestion that the FCC had acted unconstitutionally - setting up a potential Supreme Court challenge down the line - it limited its judgment to the issue of whether the FCC's rule change had been lawful.