Reaction Rolls In As High Court Takes Profanity Case

FCC, PTC praise Supremes; NAB says it supports review; MAP says expected decision does not mean court is ready to reverse.

By John Eggerton -- Broadcasting & Cable, 6/27/2011 11:43:19 AM

The Federal Communications Commission and Parents Television Council were understandably pleased Monday that the Supreme Court had agreed to decide whether a lower court was right to rule the FCC's indecency enforcement regime unconstitutionally vague and chilling. The National Associaton of Broadcasters said it supported a congressional review, but that broadcasters would continue to program responsibly, while Media Access Project was pleased the review was confined to indecency and not broader regulation.

The FCC had sought the High Court hearing and PTC had argued that it was necessary if the government were going to have power to regulate indecent content on the airwaves.

"We are pleased the Supreme Court will review the lower court rulings that blocked the FCC's broadcast indecency policy," said an spokesperson for the FCC in a statement. "We are hopeful that the Court will affirm the Commission's exercise of its statutory responsibility to protect children and families from indecent broadcast programming."

"On behalf of families across the country, we extend our thanks to the U.S. Supreme Court for agreeing to take up broadcast decency," said PTC President Time Winter. "The High Court will have the opportunity to reverse misguided Second Circuit Court of Appeals rulings that would open the floodgates for graphic nudity and some of the harshest profanity in the English language," he said.

The Second Circuit ruled that the FCC's indecency enforcement regime was unconditional generally and specifically as applied to an indecency finding against Fox for swearing on the Billboard awards program and for scripted nudity on NYPD Blue.

The Justices are not expected to make a decision until spring of 2012, so he FCC's indecency enforcement authority remains pretty much in limbo."NAB supports a constitutional review of the FCC's enforcement of program content rules," said NAB spokesman Dennis Wharton. "As broadcasters, we will continue to offer programming that is reflective of the diverse communities we serve. Responsible programming decisions by network and local station executives, coupled with program blocking technologies like the V-chip and proper guidance of children by parents and caregivers, are far preferable to government regulation of program content."

Media Access Project, which represents the Center for Creative Voices in Media and the Future of Music Coalition and had asked the court to reject the appeal on behalf of both, had expected the decision, and pointed out that accepting the appeal does not mean the court is necessarily looking to reverse the lower court.

"It is hardly a surprise that the Supreme Court decided to hear this case," said Andrew Jay Schwartzman, SVP and policy direct. "This action does not suggest that the Court is inclined to reverse the lower court's decision.  The Court almost always hears appeals when a federal policy has been declared unconstitutional."

"It is noteworthy - and encouraging - that the Court limited its review to the specific question of whether the FCC's policies violate the Constitution. Several of the broadcasters in the case had invited the Court to consider the constitutionality of the entire scheme of broadcast regulation.  MAP's clients argued against this, because it is the wrong question, and the wrong case, to take up that question."