NAB Says FCC Indecency Enforcement Regime Is Void for Vagueness

Broadcasters have been left guessing by the FCC's contextual approach to enforcement

By John Eggerton -- Broadcasting & Cable, 11/10/2011 7:18:35 PM

The National Association of Broadcasters says the FCC's indecency policy is void for vagueness, chills protected speech and that the commission's authority to regulate content is limited, but it is not taking aim at the underpinnings of indecency regs or broader content regs.

That came in an amicus brief to the Supreme Court supporting ABC and Fox. The FCC's indecency findings against them were overturned by the Second Circuit court of appeals, but the FCC and Justice have asked the Supremes to overrule those decisions.

In its brief, NAB said broadcasters have been left guessing by the FCC's contextual approach to enforcement, which it argues is instead the FCC substituting "subjective judgments about what content it deems valuable, and what content valueless."

NAB also complained that the FCC has failed to act on petitions to reconsider notices of apparent liability, which it says appears to be an attempt to "ensure that its most vulnerable orders never leave the Commission and thus can never be reviewed by a court. Under this regime, broadcasters cannot be sure exactly what the law is and consequently steer far clear of anything that is even arguably indecent."

NAB says the indecency policy is discouraging coverage of some live local news. "Fearing major fines as a result of live coverage of an event at which a passing expletive may be uttered or nudity fleetingly depicted," NAB said, "broadcasters are reluctantly choosing not to cover certain kinds of events or air certain types of stories or programs at all."

The association also pointed to what it said was a history of discriminatory enforcement of its policy, finding naked buttocks on NYPD Blue indecent, but not other nudity.

But NAB is not arguing for getting broadcasters out from under indecency or content regs entirely. "We do agree with the networks and the Second Circuit that the FCC's indecency policies are unconstitutionally vague and chill broadcasters' protected speech. However, we do not call for the overturning of Pacifica or Red Lion," said NAB spokesman Dennis Wharton.