FCC makes its indecency case to the Supreme Court


The Federal Communications Commission is arguing there are no constitutional problems with its indecency policy, and that an appeals court erred in striking down its finding on indecency that broadcasters argued changed the rules on fleeting expletives. FCC says its enforcement policies are entirely within the bounds of the Constitution and are necessary to protect children.

Programming from Fox and ABC was on the table, and numerous broadcasters have weighed in on the case in their support.

FCC said its jurisdiction over indecency granted during the Pacifica/George Carlin case was permitted by the court due to broadcasters’ status as an “intruder” into the privacy of a citizen’s home, and the fact that intrusive programming could be accessed by children only underscores the FCC’s obligation to police such content.

RBR-TVBR observation: As we’ve noted many times, we do not believe that broadcasters entirely object to operating under some content rules – they simply must be spelled out clearly and enforced consistently if six-figure fines and possible loss of license are a consequence of straying over the line.

The FCC has been arguing that it is perfectly within its rights to nail broadcasters for fleeting expletives. But for years, such incidents did not result in any punitive action above and beyond a possible admonition.
It’s not like producers of a live event had any idea that an individual in a free country who is near a live microphone is going to suddenly erupt in foul language – that can happen any time, anywhere, and those doing the uttering are not by any stretch limited to rock stars who proudly live on the outer fringes of polite society. Top political leaders are also guilty of such slip-ups.

Does anybody remember when they first broadcast Tom Hanks’ “Saving Private Ryan”? The decision was made to do it, expletives included, and the FCC was asked in advance if this would be one of the exceptions in which context would permit the airing of bad words.

First of all, it begs the question why they are OK in the context of this movie, but not OK in the commentary of George Carlin, which was at its root a commentary on American attitudes to language. Carlin used humor to get his point across, but at its roots it was a serious point and it resonates to this day.

Anyway, the FCC refused to rule in advance! Broadcasters deciding to take their chances and run the movie intact were risking punitive action by so doing.

If the FCC cannot even come clean and clear the air in a clear and well-defined incident such as this, how can anybody possibly expect the FCC to run a clear and consistent indecency enforcement policy?
Somebody needs to figure out a way to right up indecency regulations that are minimal and have lines that are as bright and easy to follow as possible, and they should further take into account the fact that the role of MVPD program outlets and internet sources should also be considered. If they are not, then maybe it’s time to cut broadcasters completely loose as well.

If such a task is even undertaken, it will lengthen this endless proceeding even more. But the bottom line, to us, is that it is the way to go – the Supremes should uphold the appeals court and send the FCC back to the drawing board.