Indecent Exposure

Broadcasters try to show legal flaws in FCC’s ‘bygone’ policy 7/08/2013 12:01:00 AM Eastern

Broadcasters sought and got an extension from
the FCC to file comments on indecency enforcement,
but when they did finally weigh in, it was essentially
with one main message: Broadcasting is no longer the
uniquely ubiquitous or accessible medium that the Supreme
Court used to justify subjecting it to content regulations
that are not applied to others.

The Big Four networks and the National
Association of Broadcasters, as well as some
station groups filing comments independently,
all pointed to the rise of multiple
platforms as arguing for a more restrained
enforcement policy. Broadcasters said
the FCC’s approach should have clearer
guidelines and stricter requirements for
actionable complaints—and preferably the
entire regime and whether it is even constitutional
to apply the regs should be rethought.
The commission has proposed going after only
“egregious” complaints, though that in itself raises some questions
about what different FCCs would find “egregious.”

Here are some highlights from the comments, led off by
Fox, which has been the most unrelenting broadcaster in its
calls for the FCC to cool it. Reply comments are due July 18.

Fox: “[We urge] the Commission to conclude that it is legally
required, and logically bound, to cease attempting to
enforce broadcast indecency limits once and for all. Time
and technology have marched inexorably forward, but the
Commission’s untenable effort to define indecent content
through a hodgepodge of inconsistent and uneven rulings
remains stuck in a bygone era.”

National Association of Broadcasters: “In the 35
years since the Supreme Court’s decision in FCC v. Pacifica,
the rationale for broadcaster-specific limits on ‘indecent’
speech has crumbled under the weight of changes in technology
and media consumption. Specifically, with regard
to the government’s concern that children may be exposed
to adult-oriented or otherwise inappropriate material, there
is no principled way to focus solely on broadcast content.
Children in particular enjoy unfettered access to content
via devices that they carry in their pockets and backpacks….
In this environment, the constitutionality
of a broadcast-only prohibition on indecent
material is increasingly in doubt.”

NBCUniversal: “If Pacifica’s premises were
ever accurate, they assuredly are not true
today. Broadcast TV is not a uniquely pervasive
presence in the lives of 21st Century
Americans; in today’s world of cable and satellite
television and the Internet, it is just one
among many methods by which viewers access
the programming they prefer. Nor is broadcast
television uniquely accessible to children compared
to other media, especially in light of new technology and
industry initiatives that empower parents to control what
their children watch.”

Joint Broadcasters filing (including Allbritton, Cox,
Media General, Meredith):
“Joint Broadcasters commend
the FCC for tackling this difficult issue, one fraught with
constitutional concerns. Given these constitutional issues and
technological developments over the last several decades, it is
highly conceivable that the FCC may not be able to derive a
judicially sustainable indecency enforcement policy.”

CBS: “The day when a child watching television was almost
certain to be watching broadcast television has long since
passed. The continued constitutionality of a regulation intended
to protect children from indecency in the audio-visual
media that omits cable television acknowledged to be at least
as ‘pervasive’ as broadcasting is subject to serious doubt.”

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