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June 4, 2007 David Fiske 202-418-0513

STATEMENT OF FCC CHAIRMAN KEVIN MARTIN

ON 2^ND^ CIRCUIT COURT OF APPEALS INDECENCY DECISION

*Reaction*

Today, the Second Circuit Court of Appeals in New York said the use of
the words "fuck" and "shit" by Cher and Nicole Richie was not indecent.

I completely disagree with the Court's ruling and am disappointed for
American families.  I find it hard to believe that the New York court
would tell American families that "shit" and "fuck" are fine to say on
broadcast television during the hours when children are most likely to
be in the audience.

The court even says the Commission is "divorced from reality." It is the
New York court, not the Commission, that is divorced from reality in
concluding that the word "fuck" does not invoke a sexual connotation.

These words were used in prime time, when children were watching.
Ironically, the court implies that the existence of blocking
technologies is one reason the FCC shouldn't be so concerned. But even a
vigilant parent using current blocking technologies such as the V-Chip
couldn't have avoided this language, because they rely on the program's
rating, and in this case the programs were rated appropriate for family
viewing.

If ever there was an appropriate time for Commission action, this was
it. If we can't restrict the use of the words "fuck" and "shit" during
prime time, Hollywood will be able to say anything they want, whenever
they want.

*The Court Decision*

As part of its March 15, 2006 Omnibus Indecency Order, the FCC
determined that the 2002 and 2003 Billboard Music Awards broadcasts were
indecent and profane.

 

During the 2002 Billboard Music Awards, the entertainer Cher made the
following comment: 

 

> "I've had unbelievable support in my life, and I've worked really
> hard.  I've had great people to work with.  Oh, yeah, you know what? 
> I've also had critics for the last 40 years saying that I was on my
> way out every year.  Right.  So fuck 'em.  I still have a job and they
> don't."

 

During the 2003 Billboard Music Awards, Paris Hilton and Nicole Richie
took part in the following exchange:

 

> Paris Hilton: "Now, Nicole, remember, this is a live show, watch the
> bad language."
>
> Nicole Richie: "Okay, God."
>
> Paris Hilton: "It feels so good to be standing here tonight."
>
> Nicole Richie: "Yeah, instead of standing in mud and \[audio
> blocked\].  Why do they even call it 'The Simple Life?'  Have you ever
> tried to get cow shit out of a Prada purse?  It's not so fucking
> simple." 

 

Fundamentally, the Commission acted in accordance with its Congressional
mandate to prohibit indecency and profanity on the airwaves, and in
keeping with previous court decisions regarding indecency. 

In the 1978 *Pacifica* case, the Supreme Court affirmed the Commission's
finding that the broadcast of comedian George Carlin's monologue about
the "seven dirty words you can't say on TV and radio" was indecent.  In
the case before the court today, the Commission was restricting only the
use of two of those seven words.  But as a result of this ruling, the
New York court may have prohibited the Commission from enforcing any
restrictions on language.

 

*Potential Solution*

Today's decision by the Court increases the importance of Congress
considering content-neutral solutions to give parents more tools and
consumers generally more control and choice over programming coming into
their homes.  By allowing them to choose the channels that come into
their homes, Congress could deliver real power to American families.

 

            Permitting parents to have more choice in the channels they
receive may prove to be the best solution to content concerns.  All of
the potential versions of a la carte would avoid government regulation
of content while enabling consumers, including parents, to receive only
the programming they want and believe to be appropriate for their
families.  Providing consumers more choice would avoid the First
Amendment concerns of content regulation, while providing real options
for Americans.

\- FCC -