Commercial radio and television stations operate under licenses issued by the Federal Communications Commission (hereinafter, Commission) pursuant to a statutory framework set up by Congress. A federal statute prohibits licensees from broadcasting any “obscene, indecent, or profane language” between the hours of 6 a.m. and 10 p.m. The statute also instructs the Commission to enforce this prohibition. If the Commission concludes that the statute has been violated, it may impose civil monetary penalties on the broadcaster, revoke the broadcaster’s license, or refuse to renew the license. The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime radio broadcast of comedian George Carlin’s “Filthy Words” monologue actionably indecent. In that case, the Commission announced a definition that it continues to use today in enforcing the statutory ban. It defined indecent speech as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.” In a 1978 decision, the Supreme Court upheld the Commission’s order in the “Filthy Words” case.
In later indecency cases, the Commission announced and utilized enforcement standards that varied but gradually offered the potential to reach more uses of allegedly indecent language in broadcasts. For many years, however, these standards preserved a distinction between literal and nonliteral (or “expletive”) uses of evocative language. The Commission explained that each literal “description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,” but that “deliberate and repetitive use is a requisite to a finding of indecency” when a complaint focuses solely on the use of nonliteral expletives.
In 2004, however, the Commission declared for the first time that a nonliteral (expletive) use of the F-word or S-word could be actionably indecent, even when the word was used only once. The cases in which the Commission made this declaration arose from televised entertainment awards shows in which performers or award winners made one-time expletive uses of the F-word or the S-word. Broadcasters affected by the Commission’s indecency finding in these cases challenged the Commission’s decisions in federal court. The broadcasters argued that the Commission’s change in enforcement stance occurred without adequate notice and without an adequate explanation and that the Commission, therefore, had violated the federal Administrative Procedure Act. Were the broadcasters correct?
