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FCC Still Has Eyes for Janet

Fox also spars with agency over profanity 9/19/2009 02:00:00 AM Eastern

The new FCC under Chairman Julius Genachowski gives no sign of letting go of Janet Jackson's breast.

The commission last week strongly defended the $550,000 indecency fine it leveled against CBS, saying “[The FCC] reasonably determined in this case that the graphic and shocking, albeit brief, exposure of Janet Jackson's bare right breast to a nationwide audience composed of millions of children and adults was indecent.”

But the FCC also asked the Third Circuit Court of Appeals to allow it to investigate further to prove its assertion that CBS had the means to block the reveal and chose not to do so. “The evidence in this case strongly suggests that CBS had access to video delay technology at the time of the 2004 Super Bowl,” the commission said.

CBS has stayed mum. It will have its say later this month when its briefs are due to the court.

Don't look for the FCC to start fining stations, however. While it has a backlog of indecency complaints in the hopper—a caseload that grew considerably in the first quarter of the year (see sidebar)—three cases remain unresolved by the courts. And the commission will likely have to bide its time until it has more solid legal footing.

But anyone looking for a kinder, gentler FCC when it comes to pursuing indecent broadcasts, fleeting or otherwise, did not find it in the FCC's strong defense of the indecency call first made under Republican ChairmanMichael Powell and defended by his successor, Kevin Martin.

This was only one of several briefs filed last week as the isssue revved up again in the courts. In addition to the FCC's defense of the Jackson fine in the Third Circuit, Fox filed its brief in the Second Circuit, taking aim at the FCC's profanity finding against it.

Some members of the creative community are warning that if the courts go where the majority of broadcast networks want them to on the indecency enforcement issue, TV stations could lose their licenses and their spectrum.

Fox has continued to push for equal First Amendment rights for broadcasters vis-à-vis other media, such as pay TV and print. But the FCC wasn't going in that direction.

Both appeals courts had reversed the FCC indecency findings, calling them arbitrary and capricious, but the Supreme Court disagreed. Now it is up to those courts to square their decisions with the high court or give a better rationale for their own conclusions that the FCC was off track.

In its brief, Fox asked the Second Circuit to consider the constitutional underpinnings of indecency regulation, saying there was no longer any justification for not giving broadcasters the same indecency protection as other media. It also said that the FCC's pursuit of fleeting indecencies was ready for a fall: “[T]he Supreme Court's reversal of this Court's prior administrative law decision merely puts the FCC's newly expanded indecency regime on temporary life support. It does nothing to heal the terminal condition of the FCC's efforts to regulate the content of broadcast speech.”

A Fox spokesperson said the FCC—even under current indecency rules—was out of line to conclude that swearing by Nicole Richie and Cher in broadcasts of the 2002 and 2003 Billboard Music Awards shows was indecent. Its principal argument is that the finding was unconstitutional because to be found indecent, the broadcaster must have acted with “scienter,” which it says means “knowledge of and intent to broadcast the specific content that is alleged to be indecent—not just the intent to broadcast the program regardless of the actual content.”

Red Lion Could Bite Back

Filing in support of Fox, the Center for Creative Voices, whose representatives include producers Steven Bochco and Vin Di Bona, said that arguments by NBC, ABC and CBS against the spectrum-scarcity justification for regulation could wind up creating “chaos.”

The argument took advantage of a hot-button issue with broadcasters—that the endgame of the FCC's concentration on freeing spectrum for advanced wireless broadband could threaten their own spectrum holdings: “[T]o the extent that reconsidering Red Lion [the Supreme Court's Fairness Doctrine decision] could undermine the reigning 'scarcity rationale,' government may be required to stop licensing speakers and to permit all Americans to use all of their airwaves to speak.”

The groups don't suggest that is a terrible thing, saying that “since fewer than 15% of Americans receive broadcast programming over the air [rather than through cable or satellite], the government would be unable to justify its gross misallocation of valuable spectrum to television broadcasting and to the vast white spaces designed to protect those unwatched signals.” In fact, they give broadcasters another dig, adding that “the real economic value in broadcast stations now derives from their must-carry rights for cable and satellite.”

But since the brief's primary mission was to steer the court away from Red Lion, the groups concluded that “whether or not unlicensed uses should be expanded and licensed uses reduced as a policy matter, this Court should not now decide this issue as a constitutional matter.”

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