Broadcast networks had their day in court Tuesday, asking the government to get out of the content regulation business, but it doesn't appear that they made much headway.
During a Supreme Court hearing to decide the fate of the Federal Communications Commission's indecency rules, the justices expressed a preference to keep broadcast television cleaner than cable, where the expletives fly and a bare body part pops up every now and then.
Broadcasters use the public airwaves, and the “government can insist on a certain modicum of decency,” said Justice Antonin Scalia. Chief Justice John Roberts added, “All we are asking for is for a few channels” where parents can be assured that their kids will not hear profanity or see sex scenes.
The broadcast industry has been battling the FCC over these rules for decades. Howard Stern's infamous fights with the FCC ultimately played a part in driving the shock jock to unregulated satellite radio. Television broadcasters have clashed with the FCC over issues ranging from brief flashes of nudity to the occasional swear word.
These current arguments involve ABC and Fox, though NBC and CBS are also in favor of gutting the indecency rules and support their competitors in this fight.
ABC's case grew out of a $1.4-million fine the FCC levied on the network and some of its affiliates in 2008 for a 2003 episode of the police drama "NYPD Blue," in which the buttocks of actress Charlotte Ross were visible to viewers. ABC fought the fine, and last January, the U.S. 2nd Circuit Court of Appeals in New York threw it out.
Fox's fight has to do with profanity incidents in 2002 and 2003, when Cher and Nicole Richie cursed during live awards shows. The curses were not bleeped. In 2004, the FCC ruled that Fox could be fined for indecency violations in cases in which a vulgarity was broadcast during a live program. While the FCC never followed through with a fine, Fox has fought that ruling and -- as was the case with ABC -- the 2nd Circuit Court sided with the network.
The FCC then appealed both rulings to the Supreme Court, which tied the cases together.
For broadcasters, being free of content regulations would allow them air more racy content. Cable networks such as HBO and FX are not regulated by the FCC, and their programming is more adult in language and nudity. The willingness of cable TV to push the envelope in ways broadcast TV can't has allowed them to syphon away both viewers and advertising dollars.
"We're hopeful [the case] will go our way," said ABC Entertainment President Paul Lee, when asked about the case Tuesday at the semiannual Television Critics Assn. Press Tour in Pasadena.
Some media watch dogs fear the worst if the high court either tosses the rules or makes it tougher for the FCC to enforce them.
"If the Supreme Court rules in favor of the networks, the American people are going to get a rude awakening when broadcast TV becomes indistinguishable from Cinemax, HBO or something even more explicit," said Tim Winter, president of the Parents Television Council, which is in favor of tougher enforcement of the FCC's indecency rules. "Children, parents, families and indeed all Americans deserve better use of the airwaves that they own.”
Broadcasters have already become much more permissive regarding content. While not as extreme as cable in regard to language and nudity, shows such as CBS's "Two Broke Girls" and ABC's "Desperate Housewives" are fairly provocative.
Supreme Court seems reluctant to take on indecency rules
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-- Joe Flint and David G. Savage
Photo: The Supreme Court. Seated are Clarence Thomas, from left, Antonin Scalia, John Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Standing are Sonia Sotomayor, from left, Stephen Breyer, Samuel Alito Jr. and Elena Kagan. Credit: Pablo Martinez Monsivais / Associated Press