Minow, Fowler: Strip FCC of Indecency-Enforcement Authority
Former FCC chairmen Newton Minow, Mark Fowler, former commissioner James Quello ask Supreme Court to strip FCC of power to regulate indecency entirely.
By John Eggerton -- Broadcasting & Cable, 8/8/2008 7:01:00 AM
A trio of former Federal Communications Commission chairmen, including the most iconic critic of TV content and a symbol of deregulation, joined to ask the Supreme Court to strip the FCC of its power to regulate indecency entirely, saying that it is on a "Victorian crusade" that hurts broadcasters, viewers and the Constitution.
Former Democratic chairman Newton Minow may have famously dubbed TV a "vast wasteland" back in the 1960s, but he is ready to let TV programmers in this century have more say over content if the alternative is the current FCC.
Seconding that opinion was former Republican chairman Mark Fowler, who once likened TV to a toaster with pictures and became a symbol of the deregulatory 1980s.
Also weighing in on a brief to the court Friday, a copy of which was obtained by B&C, was James Quello, former acting chairman and longest-serving Democratic commissioner.
Citing the predictions of a political scientist back in the early 1980s, they called the Supreme Court’s 1978 Pacifica decision that justified the FCC's indecency-enforcement powers a legal time bomb that had exploded into radical censorship.
They argued that the commission "has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies and even noncommercial documentaries.”
"I thnk it is an incredible statement from FCC chairmen who have been some of the architects of the indecency policy and who are now saying that this is out of control," said First Amendment attorney John Crigler, a partner with Garvey Schubert Barer in Washington. "The enhanced indecency standard was created under Mark Fowler, and here he is saying "boy, this train is way off the tracks.'"
The trio were joined by other former FCC commissioners and staffers including Henry Geller, former general counsel at the FCC; Glen O. Robinson, a former commissioner and said to be principal author of the brief; Kenneth G. Robinson, a former FCC legal adviser; and .Jerald Fritz, senior VP and general counsel for Allbritton Communications. They filed an amicus brief Friday in the FCC's challenge to a lower-court ruling that the commission's indecency finding against swearing on Fox awards shows was arbitrary and capricious and a violation of the Administrative Procedures Act. That act requires regulators to sufficiently justify their decisions and forewarn regulated industries.
The chairmen agreed that it violated the act but, like the broadcast networks in their brief to the court, said the Supremes needed to go farther.
They said the court's work would be incomplete if it simply struck down the "fleeting expletives" policy, arguing that the FCC's indecency calls in cases of nudity and nonfleeting profanity were inconsistent and that the commission was using "context" as a "talisman to ward off serious questions about the extreme subjectivity of the agency's determinations."
Also mirroring the arguments of ABC, CBS, Fox and NBC, the chairmen argued that broadcasting is no longer uniquely pervasive or accessible to children given the Internet and multichannel video.
"It is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality," they said. And that means getting the FCC entirely out of the business of regulating indecent content, they added.
"As former regulators, we appreciate that the FCC is in an uncomfortable position, buffeted by the turbulent passions of anxious parents and threats from excited congressmen,” they added. “But that is precisely why the matter must be taken out of the agency’s hands entirely."
The Parents Television was disheartened by the bipartisan attack on the indecency enforcement regime. It was PTC's content commplaints that helped prompt the FCC's crackdown on fleeting nudity and profanity.
“The brief filed by the former Chairmen is disappointing, especially given the disparity of the co-signers," said PTC President Tim Winter in a statement. "Newt Minow was the single greatest FCC advocate for the public interest and for children, and Mr. Fowler was perhaps the worst. Personally, I have relied on Chairman Minow’s book, Abandoned in the Wasteland: Children, Television, and the First Amendment, as my textbook and guiding foundation as a media advocate for children and families,” he said.“With that said, we respectfully disagree with the essence of the brief announced today. We strongly support the efforts of the FCC to respond to the wanton acts of the broadcast networks and we believe the principles of the Pacifica decision are as relevant today as they were when the decision was issued."
