The Department of Justice, arguing for continuing the authority of the FCC to enforce decency standards on broadcast outlets, made the case that tossing the rules for television would mean tossing the rules for radio as well, despite the many instances of “vile and lewd material” that has been aired on that medium. In fact, DOJ noted that the very starting point for the whole body of indecency casework was Pacifica, concerning a radio broadcast of George Carlin’s Seven Words routine.
Solicitor General Donald B. Verrilli Jr. made the case against radio. A big part of his argument was that there was no argument on the part of broadcasters involved in the case on radio’s behalf – it was all centered on television programming.
He said that radio remains ubiquitous and accessible, and unlike television, cannot be harnessed by parents with content blocking tools.
Verrilli argued, “And the Respondents are arguing in this case that Pacifica ought to be overruled because the circumstances that justified its rule no longer obtain. I want to put a marker in at the outset here with respect to radio because I do think it’s quite important, that they haven’t made any argument that those circumstances are any different with respect to radio. It’s just as ubiquitous as it was. There isn’t even any argument that there is blocking technology available. I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the Respondents are making here.”
He suggested the situation with radio was quite different from television, since radio stations are not generally accessed side-by-side with material from other audio distributors as in the case on a video-oriented MVPD service.
Responding to questioning from Justice Samuel Alito on whether the Supreme Court could find the FCC out of order on the television side, but justified in continued indecency enforcement on the radio side, Fox’s attorney Carter G. Phillips said, “Absolutely, Your Honor, because there are fundamentally different media and there are different protections and the circumstances are different and the Court has recognized that media have to be evaluated individually.” He noted that the most of the major change in the competitive landscape over the last 30 years has been on the television side.
For those interested in reading the entirety of the proceeding, the Supreme Court has already made a transcript of the arguments available.
RBR-TVBR observation: The discussion of radio in this proceeding is further evidence of the difficulty of crafting workable indecency regulations – both sides of the argument agreed that what may work for one medium may not for the other; that a separate set of rules may need to be crafted. Whatever happens, can both sides also agree, at the very least, that the current system is completely unworkable?