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The Big Muddle - Broadcasting & Cable

The Big Muddle

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The bottom line, after the swirl of activity surrounding the court's decision to let the FCC reconsider its profanity enforcement policy, while for the time being staying some–or maybe all–of that enforcement is that what broadcasters can and cannot say on TV is still clear as mud, maybe even less clear.

The mud is higher priced, of course, having been strained through law firms and judges' offices, but it is still mud.

Broadcasters are right to be hopeful, though. Stays don't happen every day, and they imply that the court thinks broadcasters can win their challenge to the crackdown on cussing, and that to allow the FCC to continue to enforce its policy could cause irreparable harm.

But as to what this remand means for what broadcasters can say in the interim? The court has succeeded in staking out a position equipoised on the fence, with equal weights in each hand reaching out to both sides.

It is a decision that can be parsed many ways, but don't look for the FCC to test it for fear of guessing wrong. That means, practically speaking, a lull in the war on profanity, despite the FCC's warning.

The court said in granting the stay that it was the one the FCC said in oral arguement it could live with, which the FCC said is a narrow stay that does not give broadcasters a free pass on language. But the court also invoked the Golden Globe standard, which makes the other side see the stay as a gutting teh FCC's new "fleeting profanity" enforcement regime.

You pays your money and you takes your choice.

The old policy had been that fleeting profanities uttered by, say, lottery winners, first responders in crisis, athletes at almost any moment, were not presumptively profane, with profanity pretty much confined to diety-invocations, though that smacks of an unseparate church and state.

That was the policy applied to singer Bono's enthusiastic expletive over winning an award, whose broadcast by NBC was not found to be profane. But under pressure from Congress, that decision was reversed and a new policy set that some swearing would be presumptively profane no matter how adjectival or fleeting, a policy the FCC tried to make even clearer–ha, ha–with its March decision finding four broadcasts profane.

Instead, it was mud pies for supper again.

Until now, when the court has signaled that they aren't necessarily profane, but might still be depending on what the FCC decides after taking another 60 days to reexamine them. But that does not necessarily mean the FCC couldn't find something profane in the interim in a context other than that applied in the four decisions, unless it does mean that, as some attorneys and hopeful broadcasters hope. Got it? Good. Explain it to me.

Broadcasters delaying or preempting CBS' 9/11 over swearing aren't taking any chances, the ones I talked to saying they will not change course in light of the court decision.

Can't say as I blame them. Tough to see the road ahead when the windshield is covered with mud or a mud-like substance in which the FCC is now deep in and getting deeper. And, to quote Pete Seeger on CBS, was it? "the big fool said to push on."

By John Eggerton

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