Supreme Court will review FCC policy on profanity

? The Supreme Court will decide whether it is indecent when some foul-mouthed celebrity drops the “F-word” on live television, stepping into its first major broadcast indecency case in 30 years.

The high court said Monday it will hear arguments in a case over whether the government can ban “fleeting expletives,” one-time uses of familiar but profane words.

The case grew out of decision by the Federal Communications Commission in 2006 that two broadcasts of the “Billboard Music Awards” show were indecent, though the agency levied no fines. Cher uttered one fleeting expletive beginning with “F” and Nicole Richie uttered a variation of the same word and another one beginning with “S.”

Fox Broadcasting Co. and others appealed the decision, saying that the agency had changed its enforcement policy without warning and that the new ban was unconstitutional.

A federal appeals court in New York agreed, 2-1, throwing out the ban and sending the case back to the agency, which appealed to the Supreme Court.

The current enforcement climate regarding expletives is uncertain. The FCC has been unable to act on hundreds of thousands of complaints while the case is in limbo, according to its appeal to the high court.

FCC Chairman Kevin Martin told The Associated Press Monday that he was pleased the justices are stepping in. He said the appeals court had “put the commission in an untenable position” by giving it the responsibility to enforce indecency rules but not the tools to take action.

Still, there was widespread surprise that the court took the case, and there was speculation the justices might take a broader look at the issue of indecency in a media environment that has changed dramatically over the past three decades.

Fox Broadcasting Co. said the case gives the company “the opportunity to argue that the FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing.”

The FCC has authority to regulate speech on broadcast radio and television stations, but not the Internet, cable and satellite TV.

The FCC changed its policy on indecency following a January 2003 broadcast of the Golden Globes awards show by NBC when U2 lead singer Bono uttered the phrase “f—— brilliant.” The FCC said the “F-word” in any context “inherently has a sexual connotation” and can trigger enforcement.

NBC challenged the decision, but that case has yet to be resolved.

In a separate, highly publicized case, CBS is challenging a $550,000 fine the FCC imposed for the “wardrobe malfunction” that bared Janet Jackson’s breast during a televised 2004 Super Bowl halftime show. The 3rd U.S. Circuit Court of Appeals in Philadelphia is considering whether the incident was indecent or merely a fleeting and accidental glitch that shouldn’t be punished.