IP Law Chat -- Hendricks & Lewis, intellectual property, trademark, copyright and technology attorneys

The Second Circuit issued a decision yesterday in which it found that the FCC's policy of sanctioning so-called "fleeting expletives" was arbitrary and capricious because the policy represented a significant departure from the FCC's previous positions and the FCC failed to articulate a "reasoned basis" for the change in policy.

The case arose after Fox Television Stations challenged the FCC's notices of liability against it for two broadcasts which the FCC claimed violated its indecency regime.  The two Fox programs at issue were the 2002 and 2003 Billboard Music Awards in which Cher, in an acceptance speech, used the "F-word" and presenter Nicole Richie used both a variation of the "F-word" and a curse word in reference to cow excrement.

In finding that these programs were indecent and profane, the FCC concluded, in relevant part, that it did not matter that the use of the expletives was "fleeting" and "isolated" and held that repeated use of expletives is not necessary for an indecency finding.  It was the FCC's rejection of the "fleeting" and "isolated" nature of the use of the expletives that the Second Circuit took issue with, noting that previously, "the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime."

Although Fox, CBS, NBC and various amici raised a number of challenges to the FCC's decision, because the Second Circuit found the FCC's decision to be arbitrary and capricious, it declined to "reach any other potential problems with the FCC's decision."  Nevertheless, the Second Circuit noted that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster," and went on to provide some "observations" on that topic.

It is a very detailed opinion (53 pages including the dissent) on a topic I have always found particularly interesting and troubling from a First Amendment perspective, especially given the fact that, as the Second Circuit noted, "it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children."

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The name doesn't exactly roll off the tongue but then again, how often does creativity and government intersect?  Washington Governor Christine Gregoire recently signed into law an amendment to Washington's Public Records Act, RCW  42.56, that creates a "Public Records Exemptions Accountability Committee" to review the exemptions to public disclosure "to determine if each exemption serves the public interest."  Given the number of exemptions, the committee has a lot of work ahead of it.  And good news for the concept of open government, all committee meetings are to be open to the public and the committee "must consider input from interested parties."

Hat tip to The FOIA Blog.

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A long-standing dispute between the two daily Seattle newspapers--the Seattle Post-Intelligencer and The Seattle Times--that are run under a Joint Operating Agreement has been settled, at least for now, with the result that Seattle will continue to enjoy two daily newspapers.

For coverage of the settlement and background on the dispute:
From the Seattle P-I
From The Seattle Times
From the Committee for a Two-Newspaper Town

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