Deadlock on Fleeting Indecency

FCC, Supreme Court and broadcasters march toward decisions
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As the fourth anniversary of the Janet Jackson Super Bowl incident approaches, the FCC, Fox and its Hollywood allies and the Supreme Court seem to have come to a “malfunction junction.”

The FCC's indecency crackdown on fleeting indecency and profanity remains on hold, though the FCC late last week flexed its muscles on non-fleeting content. And Fox and other interested parties are set to weigh in at the Court on the commission's defense of the crackdown—by asking the Court not to step in.

Meanwhile, with the FCC still awaiting a decision on CBS' Court challenge to the Super Bowl incident, broadcasters and their celebrity guests are relatively free to speak their minds on-air as lower-court challenges tie the commission's hands.

The Parents Television Council (PTC) called on its members to complain to the FCC two weeks ago after Diane Keaton dropped an F-bomb during ABC's Good Morning America. PTC Director of Public Policy Dan Isett says that at presstime, “thousands” of members had filed formal complaints, but they don't figure to trigger any action, at least in the near term. The FCC's hands are effectively tied when it comes to cracking down on content. That's been the case since a court took the commission to the justice system's version of the woodshed for not sufficiently justifying its decision to reverse course on fleeting swear words.

FCC Chairman Kevin Martin said as much to reporters recently when he conceded, “The commission's pending litigation has impacted our ability to take action on a whole host of issues.”

Before last week's proposed $1.4 million fine against ABC stations for a 2003 episode of NYPD Blue, No indecency fines had been issued since March 2006, though CBS recently settled a license challenge related to the record $3.6 million fine for Without a Trace. And a raft of radio-related indecency fines have also been stuck in the pipeline for several years.

The FCC appealed for help to the Supreme Court, with the responses by Fox and others opposing the commission content crackdown due this week. CBS' appeal of that fine is also in court, with the Second Circuit Court of Appeals' ruling expected imminently.

Opponents of the FCC's indecency crackdown have looked for the right case to take to the Supreme Court in hopes of loosening the commission's grip on TV and radio content. But neither Fox nor the Media Access Project, which represents a group of TV and movie content creators, believes the profanity decision fits that bill.

They believe there is little chance of the Court hearing the FCC's appeal. And the Second Circuit has yet to weigh in on the related Jackson case. Also, even if the Supreme Court took the case, it would not have to address the broader question of the constitutionality of the FCC's indecency enforcement regime. Broadcasters, therefore, have little to gain from a challenge.

And broadcasters are hardly out of the woods. The PTC has ramped up its pressure on advertisers, including asking GMA advertisers last week to rethink that show, says Isett.

The FCC has been hedging its bets as well, points out John Crigler, a partner with Garvey Schubert Barer. The commission has increasingly been requiring broadcasters facing indecency complaints to waive the FCC's statute of limitations on acting on those complaints as a condition of getting their licenses renewed. If that continues, it won't much matter if the FCC's hands are tied. Such a statute would give the commission a couple of clubs to wield against stations when cases are eventually settled.

Isett is, of course, supportive of such a decision. As he puts it, anything that “leaves the door open” to indecency enforcement helps.

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