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

July 13, 2010 |  5:36 pm

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.

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