Having talked to smarter people than I am, which is a large and deep pool, here is what I think the FCC may do now that the Supreme Court has dispensed with the indecency challenges — in broadcasters’ favor, sort of, though the net is that the FCC still has indecency enforcement authority and, if the Chief Justice is any judge (and he clearly is) the freedom to use it on fleeting content.
In a statement Friday, Chief Justice John Roberts appeared to give the FCC leave not to put out its most recent iteration of indecency enforcement for comment or revision by signaling the commission has already served notice that fleeting expletives and images are not exempt from enforcement.
So far, the only grounds for reversing those FCC indecency decisions that have been upheld by the courts are that the FCC simply did not let broadcasters know in advance that it was cracking down on fleeting expletives and images, not that there was anything wrong with them doing that.
The Chief Justice’s concurring statement would appear to free the commission immediately to start dismissing some of the million-plus complaints it has kept in the hopper while the wheels of justice ground exceedingly slow. That would show the commission was being evenhanded while moving on complaints that have held up license renewals. That would also avoid delaying that housecleaning process by months while it weighs comments it has already heard over years of court battling.
It could also put its regime out for comment at the same time if it were of a mind to change anything, or simply in the interests of being, or appearing, open and transparent.
I don’t see the commission coming out with an indecency fine or finding soon, perhaps not until after the chairman’s anticipated departure after the election. He has not said he is going, but most FCC watchers in Washington expect it, and there have been a host of exits of top advisers and bureau chiefs in the past few months.
I don’t think the chairman wants his own Michael Powell/Janet Jackson moment, nor has he seemed to be gung-ho for ramping up indecency enforcement beyond the FCC’s backing of court appeals.
The saner course would be to clear out the complaints he can, which is in keeping with pressure from Congress to act on complaints and petitions in a timely and reasonable and open and transparent and consumer-friendly and job-creating and data-driven and broadband-deploying way, and leave the hot potato of the next indecency fine to someone else.