Fleeting case, briefly


A consortium of state broadcaster associations has weighed in with the Supreme Court in the case pitting Fox (and implicitly, all broadcasters) against the FCC. And another brief has surfaced, authored by no less than two former FCC chairmen along with one of the longest-serving commissioners.

The latter group features Mark Fowler, Newt Minow and James Quello among other experts. They note areas of disagreement amongst themselves, then state, “but we are of one view on the issue before this Court: the FCC’s new indecent policy overreaches the agency’s statutory and constitutional authority.” They say that not only are they well aware of the Pacifica case, many were directly involved in it. They note that “…we have been dismayed by a series of recent decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming. Unless the FCC’s current indecency enforcement policy is halted, it will greatly curtail live broadcasts of virtually any event. It will also unbalance competition in media, by imposing far more stringent content rules on one group of competitors (broadcasters) than on other media, and for no compelling policy reason.”

They compare the FCC’s actions to a “…Victorian crusade. To effectuate its new clean-up-the-airwaves policy, the Commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, and even noncommercial documentaries.”

Pacifica, they argue, did not give the FCC license to go after all borderline speech – it said the Carlin monologue did not qualify as purely prurient obscenity, but did give the government to impose relatively mild “time and place” restrictions on language such as Carlin’s, “…the time being the period when children were likely to be in the audience, the place being radio and television broadcasts.” They note with alarm that current Chairman Kevin Martin is in favor of extending the restrictions to other media, and say that Martin’s notion is “novel,” and without judicial precedent.

The associations’ effort references a filing from Gregg P. Skall and Peter Guttman of Womble Carlyle Sandridge & Rice PLLC. “On pain of fines of $325,000 per incident, radio and television stations across the Nation are now forced by the FCC’s fleeting expletives policy to engage in expensive monitoring and policing of live broadcasts lest a stray Anglo-Saxon word slip out, no matter how isolated and no matter how lacking in sexual or excretory meaning in context,” wrote the trade organizations. “

For many broadcasters, the chilling effect is profound and discourages live programming altogether, with attendant loss to valuable and vibrant programming that has long been part of American culture. Nothing in FCC v. Pacifica authorizes or requires this result. Pacifica allowed the FCC to sanction indecent language only where it was so repetitive and sexual and excretory in meaning as to amount to ‘verbal shock treatment.’ Pacifica expressly declined to assess the First Amendment treatment appropriate to a mere “occasional expletive.” They note that it becomes risky for stations to provide “…live news, sports, talk and entertainment programming,” even though we live in a time when parents have more tools at their disposal to control what their children see and hear than ever before.

The trades point out that the overriding effect is to cause many broadcasters to completely abandon live programming. It says the use of tape delay is cumbersome, expensive and by no means foolproof, since it still relies on human intervention.

RBR/TVBR observation: We are very pleased to see opposition to Martin on this coming from those who have occupied the same chair. We join these distinguished individuals in urging the Supreme Court to uphold the fully rational results arrived at in this case at the appellate level.