Coalition of Creatives Say FCC Profanities Pursuit is Violation of Speech Rights

Media Access Project warns networks of government reclaiming station licenses

A coalition of writers, producers, musicians and other creative types told a federal appeals court Wednesday that the FCC's pursuit of fleeting profanities is a violation of the First and Fifth Amendments and should be invalidated.

It also looked to throw a scare into broadcast networks/station owners by suggesting that the strategy by three of the four networks to challenge the underpinning of FCC regulations would open the door to the chaos of the government reclaiming their station licenses and using that spectrum for wireless broadband and other advanced services.

That warning came in a brief filed by public interest law firm Media Access Project Wednesday on behalf of the Center for Creative Voices and the Future of Music Coalition.

Members of the coalition include Steven Bochco, Warren Beatty, Vin Di Bona, Diane English, and Tom Fontana.

They are backing Fox's challenge of the FCC's fleeting profanity finding against swearing in a pair of awards shows. The Second Circuit Court of Appeals threw out that finding as arbitrary and capricious, but the Supreme Court reversed that call and remanded the case back to the Second Circuit to try again.

Fox and its supporters' briefs in the case were due to the court Sept. 16. Fox had not made its brief available at press time.

The FCC's pursuit of fleeting curse words is unconstitutional, the groups claim, because it chills speech, which in turn "interferes with the process of artistic and creative expression."

But the groups also say that the court can correct the FCC's errant aim without undermining the Pacifica case upholding the FCC's indecency enforcement authority, or the Red Lion decision that supports FCC regulation of the airwaves based on scarcity.

But even without assailing Pacifica, the groups made it clear they thought the way the FCC has interpreted its indecency enforcement authority is way off base.

"The FCC's framework for evaluating indecency is hopelessly vague and cannot be reconciled with existing case law," they said.

The brief was careful not to ask the court to either endorse or reject the Red Lion decision, saying that it was "irrelevant" to indecency regulation. What was relevant was Pacifica, they said, but advised the court it didn't need to go there to conclude the FCC was wrong.

It warned of dire consequences of even raising Red Lion in dicta, which is non-precedential portions of a decision. "Questioning Red Lion, even in dicta, could upset all broadcast ownership limits, broadcast must-carry rights, spectrum build-out provisions, political content obligations, and the wide range of spectrum policy decisions," they said. "It could also require the FCC either to justify every existing spectrum license under strict scrutiny, or to justify any change to existing licenses under intermediate scrutiny. Either result would throw media, Internet, and spectrum policy into chaos."

The brief pointed out that while NBC, CBS and ABC have all suggested the Supreme Court should reconsider the scarcity rationale for indecency enforcement, it suggested they might not like the result.

"[T]o the extent that reconsidering Red Lion 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, it gives broadcasters another dig saying that "the real economic value in broadcast stations now derives from their must-carry rights for cable and satellite. This misallocation of spectrum resources cannot be justified under any heightened scrutiny."

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."