The FCC’s poor track record in court has extended recently into the realm of indecency enforcement, and its attempt to defend its change in the way it polices fleeting expletives not only failed, it managed to bring the entire regulatory regime into question. PTC and MiM are calling for the FCC to appeal its most recent loss in the case against Fox.
Robert Peters of Morality in Media has filed three amicus briefs in the case in support of the FCC. He commented, “U.S. Attorney General Eric Holder should order the Solicitor General to appeal this critical decision. The FCC’s current indecency policy is clear enough. The problem is not that TV networks can no longer discern community standards for broadcasting. The problem is that they no longer care about community standards or about the well-being of children.”
Peters continued, “Whatever the explanation for the Acting Solicitor General’s apparent reluctance to appeal the 2nd Circuit decision, it is time for the Obama Administration, and U.S. Attorney General Holder in particular, to overrule the Solicitor General’s Office and to appeal this decision before time runs out on April 21. There is much to be gained and little to lose by now appealing to the Supreme Court.”
Parents Television Council has been mobilizing its constituency to try to get the FCC to appeal. It wrote, “This may be the most important thing we’ve ever asked you to do… we urgently need you to tell President Obama to stand up for broadcast decency and appeal last summer’s ruling by three New York City judges who said that it is OK to use the ‘F-word’ on primetime broadcast television – even in front of children. Time is running short. We need you to add your voice to a chorus of other Americans who are fighting to restore decency standards to the broadcast airwaves.”
RBR-TVBR observation: To recap what happened concerning this issue, the Janet Jackson Super Bowl incident, like Frankenstein’s monster, caused many to get out their torches and pitchforks in an attempt to hold someone, anyone, to account. The FCC chairman at the time, Michael Powell, reacted by going back in time before the Jackson incident, and that move is at the root of the FCC’s current court woes.
The FCC Enforcement Bureau had already basically excused a small number of aired but fleeting expletives uttered by celebrities during awards shows, a decision consistent with long-standing FCC policy that had been confirmed early in Powell’s tenure by a lengthy indecency-clarifying document assembled and released on his very own orders.
But in a classic over-reaction to the Jackson incident, Powell decided to go back and overrule EB, and declared that certain words, whether uttered accidentally, fleetingly or not, are ALWAYS punishable by the FCC as it sees fit.
This abrupt change in policy was done without the opportunity for public comment, and broadcasters were absolutely correct in opposing it, as the huge new fines approved by Congress and the risk to broadcast licenses made any kind of live programming a risky proposition.
Broadcasters have never attempted to wipe out all indecency regulation, but the arbitrariness and capriciousness which is an inevitable feature of content regulation did not go unnoticed by judges in the fleeting expletive case, putting the entire body of regulation in question.
The short answer to all of this is that the FCC shouldn’t have pressed this issue in the first place.
We will add a couple of final comments. Peters apparently thinks he is the repository of all knowledge of community standards, and that broadcasters and judges are clueless. We don’t think he is endowed with those special powers. And contrary to PTC’s statement, nobody was trying to legalize the “f-bomb” – broadcasters were just trying to ensure reasonable repercussions when one slips out accidentally. Get real, watchdogs!