FCC continues to try to make indecency a Supreme Court case


The FCC’s attempt to hit broadcasters with indecency fines for utterance of fleeting expletives in live programming and for a brief instance of partial nudity in a scripted program was shot down in courts at the appeals level, and in examining that issue, the court found the entire FCC indecency regimen to be unconstitutionally vague. The FCC is continuing its attempt to get an appeal heard by the Supreme Court.

The FCC admitted it threw a change-up on the fleeting front, but argued, “Although the FCC has since expanded its indecency policy to cover isolated offensive woreds and images where circumstances warrant, it has adhered since Pacifica to the view that the presence or absence of indecency turns in part on the context in which particular words or images appear.” The FCC said that previous cases have said the FCC policy cannot be challenged as vague.

The Commission points to its long experience in enforcing indecency regulation, and suggests that broadcasters are usually aware of when their own content is or is not over the line. “Indeed,” argues the Commission, “the major network have personnel, and policies designed to ensure compliance with those standards, even in time periods when FCC regulations do not apply.”

The FCC notes that the media landscape is getting more pervasive, and children are part of the audience, and says regulation of indecent content is warranted. It says that the regulation is fully permissible as part of the bargain between broadcasters, who have access to the public airwaves, and the public that grants that access.

RBR-TVBR observation: We suspect the ultimate result of the court battles over this issue may well be a trip back to the drawing board. Perhaps it is time to start from scratch and craft some content rules that keep the gray interpretive areas to a minimum and contain as many bright lines as possible. Until that happens, we have to agree with the Second Circuit – the rules are vague, and therefore impossible to follow.

We doubt there are many responsible broadcast professionals out there who object to any rules at all. But they have to be clear. And perhaps some leveling of the playing field is in order – maybe program channels that are made available on MVPDs without an extra subscription charge – what is generally referred to as basic cable – should also be placed under the same simple bright line rules broadcasters submit to – using their use of the public right of way and spectrum (for satellite delivery) as a quid pro quo between the programmer and the public upon which to hang the regulations.

Anyway, that’s all pure speculation. At the very least, sudden, swift and heavy punishment for fleeting material must go away, or it puts all live broadcasting at risk. The old policy of issuing a simple admonition for on-air accidents must be restored.