Networks take aim at basic pillars of indecency law


The big four networks are seeking a lot more than just reinstatement of the FCC’s long-standing exception to its indecency rules for “fleeting” utterances. Filings made Friday with the US Supreme Court challenge the current validity of past decisions by the High Court which provide the basic underpinnings for the law against broadcast indecency – which is, after all, a legal exception to the First Amendment. In the three decades since the Supreme Court last ruled on broadcast indecency, much has changed, with the proliferation of cable, satellite Internet and other media delivery systems. Thus, the networks argue that broadcasting is no longer uniquely available to children, who are supposed to be protected by the indecency statute, nor does the spectrum scarcity justification for special regulation of broadcasting apply in today’s world.

“The FCC is not applying any predictable or even discernible standards but rather is picking and choosing which of these mainstream shows to punish based on wholly subjective notions of what is ‘patently offensive’,” Fox said in its latest brief urging the Supreme Court to rule that the FCC was arbitrary and capricious in its finding that fleeting comments by Nicole Richie and Cher during “Billboard Music Awards” telecasts were indecent. In doing so, the FCC did not fine Fox, but served notice – without undertaking any public rulemaking – that it was abandoning its long-held policy that fleeting instances of indecency were not actionable.

Harkening back to the Supreme Court’s 1978 ruling that it was proper for the FCC to fine Pacifica Foundation’s WBAI-FM New York for broadcasting George Carlin’s “Filthy Words” recording, spelling out the “seven words you can’t say on television,” Fox argued that broadcasting is no longer uniquely pervasive, but rather that children could just as easily be exposed to indecent material by other media, such as cable, satellite TV and the Internet, which are not subject to FCC regulation of indecent content. That directly challenged one of the basic underpinnings of the landmark ruling which upheld the indecency statute by a narrow 5-4 margin.   

In their joint brief supporting Fox, NBC, CBS and ABC agreed that there was no discernable rhyme or reason to the FCC’s indecency enforcement policy. But they went much further, challenging not only the Pacifica decision as being outmoded, but the Red Lion Decision as well. That 1969 Supreme Court ruling had upheld the Fairness Doctrine (since struck down by the FCC itself) on the basis that the Commission had authority to regulate broadcast content due to the scarcity of spectrum. The networks called that an “antiquated notion” and said neither Red Lion nor Pacifica can justify FCC regulation of broadcasting content in today’s media environment.  

RBR/TVBR observation: We have maintained for many years that it was high time for the Supreme Court to get back into the indecency arena and rein in an FCC that is wildly out of control. Whatever the outcome of this court case over Fox’s airing of a couple of cuss words in a live awards show, the verdict can only be good for broadcasters. The High Court will either toss out the indecency law all together – leaving control over program content where it belongs, in the capable hands of broadcasters – or give the FCC some much lacking clear guidance on just what it can and cannot do as a regulator. In the latter case, at least broadcasters would have some way to predict where the Commission draws its indecency line.