The indecency court battles between broadcasters and the FCC have largely been about former Chairman Michael Powell’s sudden change in the enforcement of fleeting infractions in the wake of the Janet Jackson Super Bowl incident. The FCC is going back to the drawing board, this time with the public properly invited.
The FCC’s loss at the Supreme Court in FCC v. Fox Television Stations did not result in its loss of authority to punish broadcasters for indecent content; however, the loss is forcing the FCC to make sure the rules are as clear as possible. Further, they must provide for stakeholder and public input prior to implementation, the step that Powell skipped back in 2004 when he adopted a zero-tolerance stance with regards to certain fleeting expletives.
The FCC’s first step has been to clear out 70% of about a million indecency complaints that have either passed the statute of limitations, were not actionable under the rules at the time or in light of court decisions since; or for other reasons.
Now the Commission is seeking comment on whether or not it should change the rules or leave them as they are. It specifically mentions its questions on the appropriate policy for dealing with fleeting expletives.
It will open the window for comment as soon as its request for same is published in the Federal Register.
RBR-TVBR observation: The fact that proper procedure will be used will not make indecency any easier to enforce unless the FCC and interested parties can come up with some kind of bright line boundary on content that most are comfortable with. This is of course much easier said than done. But the goal should be to eliminate as much gray area while remaining as true to First Amendment principals as possible.