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Tuesday, July 24, 2007
The Influence of Fox v. FCC on Sports Broadcasts

We are pleased to announce that Mark Conrad will be guest blogging in early August. Mark is an associate professor of legal and ethical studies at Fordham University’s Schools of Business, and has written extensively on sports law and business.

Last week, he published an op-ed in the Sports Business Journal entitled "Court's Indecency Ruling a Relief to Sports Broadcasters." The piece examines Fox v. FCC, a decision handed down last month by the U.S. Court of Appeals for the Second Circuit that makes it more difficult for the Federal Communications Commission to fine broadcasters, including sports broadcasters, for broadcasting swears uttered by players and fans. Mark's piece is subscription only, but here is an excerpted version:
In the equivalent of a technical knockout, the U.S. Court of Appeals for the 2nd Circuit handed the FCC a stinging defeat when a majority concluded that the agency’s 2003 rules expanding the definition of “indecency” and “profanity” to isolated instances known as “fleeting expletives” were “arbitrary and capricious.” According to the majority opinion in the 2-1 ruling, the commission’s explanations did not justify such an expansion. The ruling forced the agency to come up with a more compelling justification, one that the judges doubted the FCC could do.

For those radio and television sports rights holders, the specter of six-figure fines for four-letter words resulted in a series of difficult decisions, such as the use of time delays or otherwise “sanitizing” the production by avoiding miking to produce as “safe” a broadcast as possible.

With the ruling in Fox v. FCC, all broadcasters, but particularly sports broadcasters, can breathe a sigh of relief. Think of the implications if the court had upheld the commission’s claim that a fleeting expletive violates indecency and profanity restrictions. Those of us who remember John McEnroe not only recall his tennis exploits, but also his argumentative skills. More than once his protests against officials were laced with profanities, some of which were heard live by millions. If these rants had occurred in 2006 instead of 1986, broadcasters likely would have been sanctioned, to the tune of up to $325,000 per violation under the 2006 Broadcast Indecency Enforcement Act, where Congress raised the maximum fine for an indecency infraction tenfold to $325,000.

Let’s think of the ramifications of this interpretation in the context of a sports broadcast. What if fans start yelling four-letter words while protesting a call and the public can hear those protests? What if a microphone picks up the sounds of players cursing? Or the game officials? Each of these events, coupled with the increased fines under the 2006 Decency in Broadcasting Act, chills the broadcaster’s First Amendment rights, but is discriminatory as well, since cable and satellite programming is not subject to the indecency standards.

But sports broadcasters should note that the 2nd Circuit’s ruling represents a temporary victory. It did not address the constitutional questions, but rather focused on the lack of evidence for the FCC’s conclusions. The court gave the FCC the opportunity to justify the rules. And if the FCC wishes, it may either seek a rehearing in front of the entire body of judges in the federal appeals court or an appeal to the U.S. Supreme Court.
Mark concludes his piece by proposing that "if Congress enacts legislation expanding indecency to cable and satellite, let it create a special exemption, a legislative waiver of liability for live sports broadcasts."

For related posts on the FCC's regulation of sports, see Greg's "CBS Apologizes for Halftime Show Ending" (2/1/2004) and Howard's "New Sports Media v. Old Sports Media" (4/17/2007). For a number of related posts on free speech in sports, see this link. Howard also has an excellent law review article on that topic, "Free Expression and the Wide World of Sports."


NASCAR has implemented some safeguards for the "unexpected" and emotional speech of its competitiors. It has warned all of its drivers and crews that the use of profane language can result fines and point penalties. This is a good example of a league taking this matter into its own habds before it trouble with the FCC emerges.

Blogger Jimmy H -- 7/24/2007 4:23 PM  

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