The infamous Janet Jackson Super Bowl malfunction came after fleeting expletives uttered in the course of live-televised awards programs and inspired then-FCC Chairman Michael Powell to change the FCC’s approach to punishing fleeting expletives. He now says he regrets his vote to go after them.
According to a Bloomberg report, Powell now regrets his decision to go after fleeting expletives and says he would have dissented on that score if he could do it all over again.
Powell, who is now the top exec at the National Cable and Telecommunications Association, says that it makes no sense to treat broadcasters differently than other program services in an era where 85% of all television viewing takes place on MVPDs where the two types or program service operate side by side.
The cases heard at the appellate level involved fleeting expletives in live programming and fleeting partial nudity in a scripted program.
Broadcasters have pointed out that their ability to cover any live event is compromised if they are held responsible for language that may be caught on a microphone. And decision the FCC decision to allow unedited profanity on a showing of “Saving Private Ryan” and not on other programming leaves broadcasters in the dark as to what is permissible and what is not.
RBR-TVBR observation: The definition of indecency cannot help but be imprecise, and as a result, enforcement has often been subjective and unpredictable. Add in the ridiculous $325K fine ceiling approved by Congress and the FCC’s sudden hair-trigger fleeting enforcement and it practically guaranteed that broadcasters had to pursue this all the way to the Supreme Court.
The uncertainty inherent to the enforcement, along with the unilateral manner in which the FCC changed the rules, has thus far given broadcasters the upper hand in court. Let’s hope the Supremes see things the same way.