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FCC needs to decide how to respond to court tossing indecency rules

The Federal Communications Commission has to decide whether it's better to switch or fight.

A decision by a U.S. Court of Appeals tossing out the FCC's indecency regulations has put the regulatory agency's oversight over content on broadcast television and radio in limbo. 

GENACHOWSKI The FCC has not said how it will respond to the ruling by a three-judge panel of the U.S. 2nd Circuit Court of Appeals in New York that its indecency rules are "unconstitutionally vague and chilling." In a statement, FCC Chairman Julius Genachowski said, “we’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the 1st Amendment.”

The FCC basically has only a few choices. It can appeal the ruling to either the full court of the 2nd Circuit or take it to the Supreme Court. It can rewrite its indecency rules, which would still likely face challenge by the broadcast industry, or it can do nothing (though that seems highly unlikely). Though Genachowski does not appear to be as aggressive about indecency as his predecessors Kevin Martin and Michael Powell, it seems highly unlikely that the agency would walk away from any role in monitoring content on broadcast television.

Another factor that may determine how the agency proceeds is the outcome of its separate battle with CBS over that network's broadcast of the 2004 Super Bowl halftime show, in which one of Janet Jackson's breasts was exposed. The FCC and CBS are currently waiting playing that fight out in the 3rd Circuit in Philadelphia.

The decision by the 2nd Circuit Court of Appeals was in response to a fight between the FCC and Fox Broadcasting over so-called fleeting obscenities. The FCC decided in 2004 that it would go after TV stations for indecency violations in cases when, during a live broadcast, an obscenity went out over the air. The decision came after Fox aired awards shows in 2002 and 2003 in which swearing by Cher and Nicole Richie was not bleeped in time by the network. U2 singer Bono also got NBC in trouble with the FCC for swearing during a Golden Globes telecast. 

Fox cheered the decision and CBS was encouraged by it, but some media watchdogs expressed concern about what the ruling would potentially mean for the content on broadcast television.

"The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people," said Tim Winter, president of the Parents Television Council, which often is critical of content on television. "For parents and families around the country, this ruling is nothing less than a slap in their face," he added.

TV viewers and radio listeners are not likely to see any immediate change as a result of the court ruling, especially because it is likely that this legal battle is far from over. Broadcast television has gotten much racier over the last two decades in response to competition from cable television, which does not have to comply with the FCC's indecency rules. 

Ultimately, broadcasters are wary of offending advertisers who sometimes steer clear of risque content. The envelope is pushed, but only when someone is willing to pay the bill for it.

-- Joe Flint

Photo: FCC Chairman Julius Genachowski. Credit: Gary Friedman/Los Angeles Times.

Comments () | Archives (6)

This is a process, a legal process which must be allowed to run its course. The Supreme Court temporarily abdicated its decision making power to a lower court, and the lower court expressed its opinion. It made law. Now the regulations can be appealed again, rewritten and challenged, or forgotten. Personally, I think the TV stations should show some adherence of moral behavior and better regard the impression TV makes on children. That's not likely, knowing how ratings drive programming, and pushing the envelope tends to produce higher ratings.

Regulation is necessary, or soon we'll have our broadcast air filled with God knows what. The F.C.C. is charged with controlling what is broadcast. One can only hope they put more effort into precision wording of their regulations so those regulations are equally applied, fair, morally sensitive, and upheld. Viewers (taxpayers) certainly pay the FCC Commissioners enough money to expect this quality of effort.

Censorship is for Socialist/Communist/Fascist governments. Stand up for freedom of speech.
If you don't like it, don't watch. It will self regulate.

Mr. Flint's article was one of the most complete reports in the US today about this issue....the FCC will not say squat until it also gets a decision from the 3d Circuit in Philly, which is considering related Indecency appeals from FCC decisions...the only thing I would add is that, if the FCC wants to appeal any of these Court of Appeals decisions to the Supreme Court, it will likely need to get the "permission" to file such appeals from the Justice Department -- and DOJ probably will not make such a call without consulting (informally) with the White House. So, for this nonsense, for these FCC favors for the religious right to continue, Obama will have to approve -- let's hope that Obama does not disappoint us on this matter also.

Robert, thanks for the nice comment. Figuring all this out is a big headache and I'm not sure I have it down yet.

Look, I am a parent of a 9 year old daughter. Do i always agree with what is on TV? No. However I know that the bottom line is that the bucks stops with me. If I am concerned with what is on TV I do the prudent thing, I change the chanel. Usualy her mother and I will preview a show when it comes on TV, before she gets to whatch it. And we then make an infomed dicision on weather or not our duaghter will get to what a certain show.
We are the parents and we as parents have the responcibility to bring up our child right. not the government. For those that feel that the goverment should control what hits the airwaves, be careful of what you wish for. This is a slippery slope.

I'd be happy if the FCC just let this ruling stand, and crafted some decency regulations which actually MEAN something. Its current policy of "It is prohibited to broadcast anything which we happen to find indecent, based largely on what we had for breakfast this morning" needs to go away.

I know it will be a bit of work to craft regulations that are sufficiently clear and specific to pass constitutional muster, but it will be better for everyone in the long run.


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