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U.S. Supreme Court Rules Against FCC in Indecency Case

By Brent Kendall WASHINGTON--The U.S. Supreme Court Thursday threw out the Federal Communications Commission's findings that television networks violated the agency's indecency rules by broadcasting profanity and nudity. The court, in an opinion by Justice Anthony Kennedy, said the FCC did not provide fair notice to the networks that it was taking a tougher stance toward policing the airwaves. The ruling was a narrow one that declined to decide closely-watched questions about whether the FCC's indecency prohibitions violate free-speech protections under the First Amendment. One case before the court centered on Fox Television broadcasts of the 2002 and 2003 Billboard Music Awards in which Cher and Nicole Richie uttered expletives. The FCC found Fox was in violation of indecency prohibitions, but did not sanction the network because the programs aired before the agency stepped up its efforts to crackdown on broadcasts it considered indecent. Fox is a division of News Corp. (NWS, NWS.AU, NWSA). NewsCorp. owns Dow Jones & Co., publisher of this newswire, and The Wall Street Journal. In another case, ABC was hit with a $1.4 million fine after showing the bare bottom of actress Charlotte Ross in a 2003 episode of "NYPD Blue." ABC argued that the episode wasn't indecent because Ross's bottom wasn't a "sexual organ" and there was no frontal nudity. Justice Kennedy, in an 18-page opinion, said the FCC "failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent." Justice Kennedy said the court's ruling left the FCC "free to modify its current indecency policy." Thursday's decision was the court's second recent ruling on the FCC regime. A divided court ruled for the FCC on narrow grounds in 2009, finding the agency's stepped-up efforts to combat indecency were a legally permissible exercise of the agency's administrative powers. Write to Brent Kendall at [email protected]

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