CBS: FCC Should Adopt 'Egregious Case' Indecency Enforcement Policy - Broadcasting & Cable

CBS: FCC Should Adopt 'Egregious Case' Indecency Enforcement Policy

Says that fleeting nudity, like fleeting profanity, should not be actionable
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"The Commission should proceed against alleged
broadcast indecency only in the most egregious cases -- that is, where the
elements of graphic explicitness, 'dwelling or repetition' and a context
evincing a lack of serious purpose are all present. That was the bottom line
for CBS in June 19 comments to the FCC on its indecency enforcement regime.

Reform is clearly needed, said CBS, given that
"scores" of license renewal applications remain held up over
indecency complaints. "More restrained enforcement is necessary if any
order is to be brought to the chaotic state of indecency regulation," CBS
added.

The FCC sought comment on whether to formalize its current
"egregious cases" approach, undertaken
under former FCC chairman Julius Genachowski
. That approach is more like
the pre-Golden Globes/Janet Jackson decisions, when fleeting nudity and
adjectival profanity was not actionable.

CBS says a return to that approach is the best way to go,
and that it should apply to both live programming and scripted programming.
"A government agency should not be distinguishing between the isolated use
of the word 'bulls**t' in a police drama and much stronger language in the
broadcast of an Academy Award winning movie or CBS's
Peabody Award-winning documentary about the events of Sept. 11
.

CBS suggests that given that broadcast is no longer uniquely
pervasive and with the advent of new blocking technologies, there is
"grave doubt" that the FCC can devise "any enforcement
policy" that will pass First Amendment muster. CBS suggests the FCC's only
hope of rationalizing an indecency enforcement policy to the court is by
adopting a more restrained approach and only going after the most egregious
violations.

If it does so, says CBS: "It need not be
concerned that doing so will make of broadcast television some sort of
red-light district. That has not happened with respect to the post-10 p.m.
"safe harbor," and it will not happen in daytime, or primetime..."

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