Former FCC Chairs assail indecency enforcement before SCOTUS


The politics of Newt Minow (left) and Mark Fowler (right), both former FCC chairmen, are quite different; they led the FCC during different eras and faced different issues. But they agree that the agency’s treatment on indecency enforcement has come off the rails and are saying us much in support of broadcasters in a friend of the court brief submitted to the US Supreme Court.

Opening their argument, they stated, “The FCC’s policy towards broadcast indecency has evolved from a restrained effort to regulate clear, flagrant instances of indecent language by a handful of broadcast licensees and performers into an ever-expanding campaign against ordinary radio and television programming. In pursuit of a policy of protecting children against exposure to offensive language, the Commission has embarked on an enforcement program that has all the earmarks of 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 non-commercial documentaries.”

They said there are no “discernable standards,” and as a result broadcasters are forced to steer far clear of what is perceived to be the danger area which might provoke an FCC over-response, damaging their freedom of expression and overlaying intolerably vague standard atop the First Amendment.

They said the content the FCC is trying to keep of broadcast is available in mere seconds by switching to MVPD or internet programming. “The First Amendment cannot tolerate discrimination against one of several like speakers. It is time for this Court to declare that the same First Amendment principles apply to all media.”

Also contributing to the effort are Distinguished University of Virginia Law Professor Emeritus and former FCC Commissioner (1976-78), Glen Robinson, and three former senior officials including the iconic General Counsel in the late 1960s, Henry Geller, the Agency’s Chief of Staff to Fowler, Jerald Fritz (1985-87), and Senior Advisor to Chairman Al Sikes, Kenneth Robinson (1989-93).

The full brief can be read in the upper right column of this page as a pdf attachment:

RBR-TVBR observation: We can say it in one word: Bravo!