Indecent Proposal

Networks tell Supreme Court it is time to deep-six long-standing justifications for broadcast content regulation

By John Eggerton -- Broadcasting & Cable, 11/14/2011 12:01:00 AM

Spectrum scarcity? Broadcasters have been hearing the echo of that phrase for years. More recently, those words have been driving the current FCC effort to move broadcasters off a third of their remaining spectrum so that wireless companies can have more room.

The future broadband-connected world depends on it, they are told at almost every turn. And the broadcast network beef remains: If they are going to be left with less spectrum to compete against all those new digital services, at least they should be able to compete with the same kind of programming the competition—cable, satellite, the Internet—is delivering to the vast majority of households, and yes, households with little kids and grandparents, without any FCC thumb on the scale.

Spectrum scarcity has been one of the keys to the FCC’s justification of broadcast content regulation in general, and more recently its crackdown on Janet Jackson’s breast, Charlotte Ross’ butt and Cher and Nicole Richie’s mouths as part of its pursuit of fleeting nudity and profanity.

But just as local broadcasters are pushing back on the scarcity argument for spectrum reclamation, Fox, CBS, NBC and even ABC are sticking their collective heads out the window, as Peter Finch advised everyone in Network, saying (to paraphrase) we’re sick and tired and we’re not going to take it anymore.

Broadcasters now have their best opportunity in years to try to get the government out of their boardrooms and their viewers’ bedrooms, and most of them are shooting for the moon. Over the past few weeks, Fox, CBS and NBC have all told the Supreme Court it is time to get out of the content regulation business, given the vaunted new media competition the FCC is itself spurring through its broadband deployment efforts, which have dominated the commission’s attention.

“Today, broadcasting is neither uniquely pervasive nor uniquely accessible to children, yet broadcasters are still denied the same basic First Amendment freedoms as other media,” said Fox, NBC and CBS in a joint filing. “This Court’s pronouncements from 1978 continue to bind the lower courts as they attempt to reconcile the FCC’s increasingly aggressive suppression of broadcast speech with the fundamental notion that government censorship of speech—all speech—is the core of what the First Amendment was intended to prevent.”

ABC took aim at indecency enforcement’s underpinnings in a separate filing.

The FCC has been sending something of a mixed message regarding the issue, depending on the venue. When the commission is pushing for more spectrum for wireless broadband, the FCC’s message is that broadcasting is now only delivered to a fraction of the country, with the rest of the people getting their TV stations over cable and satellite and, increasingly, the Web.

But when it is making its case for regulating content, broadcasters seem to grow in FCC lawyers’ estimation. This from the FCC’s Supreme Court appeals: “Although substantial numbers of households now subscribe to cable or satellite, broadcast programming has retained a dominant position in the media universe. Broadcast television continues to be used in approximately 19.6 million households who do not subscribe to cable or satellite services, and in 14.7 million more households that subscribe to cable and satellite but that are not connected to those services.”

While the Fairness Doctrine was scrapped from the FCC’s playbook in 1987 and from its rule book earlier this year, its precedent for upholding content regulation lives on in the Red Lion decision, the Supreme Court ruling upholding the FCC’s ability to regulate content—in this case, an affirmative obligation to provide access—on the grounds that it was a scarce public resource.

The “uniquely pervasive” phrase stems from the 1978 Supreme Court Pacifica decision that the FCC could prevent broadcasters from using George Carlin’s seven dirty words vocabulary, based on the theory that broadcasting was, among all media, uniquely pervasive and could be regulated for the sake of children.

The National Association of Broadcasters is not prepared to join the networks in seeking to overturn indecency regs. “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 an NAB spokesman.

Religious broadcasters are even less enthusiastic for unfettered broadcast content. The National Religious Broadcasters sided with the FCC in defense of its indecency policy, telling the courts that while they generally are against unreasonable interference, they wanted some government restraint of indecency for the sake of kids.

While NAB is not pushing the FCC to get out of the content reg business altogether, the networks are making no bones about it: “The Court should announce firmly and finally that the time for treating broadcast speech differently than all other communications is over.”

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton