Legal eagles comment on FCC indecency appeal


Attorneys writing on legal blogs have weighed in on the FCC’s plan to seek a writ of certiorari in order to appeal the Second Circuit indecency ruling in front of the Supreme Court. The immediate take away is that there will likely be no immediate developments as this story unfolds.

David Oxenford, of Davis Wright Tremaine LLP, used his Broadcast Law Blog platform to recap the FCC filing with the Supreme Court, and didn’t have a whole lot to add. He did note that the Supremes do not have to listen to this case, but the publicity factor may cause them to put it in play. He also said that SCOTUS moves slow, and noted that we may still be talking about this one a year from now.

Writing for SCOTUSblog, Goldstein Howe & Russell P.C. attorney Lyle Denniston wrote that the FCC lost in the lower court because it ratcheted up its enforcement on fleeting incidents without warning, and then the full body of FCC indecency enforcement came into play because the lower court found the rules in general to be vague to the point that broadcasters cannot know how to comply with them.

Denniston wrote, “The Second Circuit Court, ruling last July — for a second time — in a case of words of profanity uttered by performers during two Fox TV awards shows, struck down the FCC’s ‘indecnecy’ policy as a whole, finding it too vague to inform broadcasters of what was allowed, or not.”

Denniston suggested that the infamous Janet Jackson case may soon follow the Fox fleeting expletives and the ABC bared buttocks that are currently on the table. He also said that there is no timetable applicable to the issue at this point.

RBR-TVBR observation: We seem to have a reasonable lay grasp on this issue, based on what we’ve been reading. Broadcasters do not routinely go over the content line, and have never petitioned for the total elimination of indecency regulation to the best of our knowledge. But the FCC, in an attempt to suddenly shift gears in its reaction to fleeting expletives, managed to bring the entire unwieldy indecency regimen into question.

We have a situation where Congressional panic in the wake of the Jackson incident put a new $325K indecency fine on the books – a steep penalty indeed when nobody can even define the crime.

We do know this – steep punishment for fleeting unscripted expletives has a chilling effect on the broadcast of live programming. President George W. Bush even uttered an expletive within earshot of a live mic during his tenure at the White House. Even as Congress was overreacting to Jackson with its new fine, the FCC was busy overreacting with its new fleeting expletive crackdown. If it had just not gone there at all, it might have the rest of its indecency policy in place and in force even as we speak.