The FCC is preparing to make its case in court again for finding CBS stations in violation of its indecency rules for airing Janet Jackson's fleeting nudity during the Super Bowl back in—can it be—2004.
Two days after the FCC's brief is due on Jackson Sept. 14, Fox's brief is due in the remand of the FCC's decision on profanity in its awards telecasts.
In both cases the courts had ruled the FCC decision arbitrary and capricious. But after the Supreme Court ruled that the FCC had sufficiently justified its fleeting profanity decision, both were sent back to their respective courts.
Then there is the indecency finding against a blurred backside in NYPD Blue, which has yet to come out of the Second Circuit.
These old indecency enforcement cases will be a test of how the new FCC approaches the issue.
We share the concern expressed by some First Amendment attorneys that the FCC could be laying the groundwork for the defense of broader enforcement.
Its recent report on content control technologies said that TV was “uniquely pervasive,” but did not confine that to broadcast, as the Pacifica Court did when it used that term in 1978.
Instead, the report talked about both broadcast and pay TV.
It may seem like picking nits, but all the commissioners signed off on the report and the chairman is a Harvard lawyer, so language matters. Commissioner Robert McDowell, for one, said his approval was not to be read as any change in his view of the FCC's enforcement authority.
An FCC spokesman explained that TV and broadcasting were used interchangeably in the report. But there is a huge legal distinction between broadcast TV, which the FCC regulates for sex and profanity, and cable and satellite TV, which it does not.
The good news is that FCC Chairman Julius Genachowski's history suggests a preference for parental and industry solutions to content control, rather than government. But he has also said that the justifications for regulating content remain.
FCC indecency complaints were up dramatically in March, probably partly due to Parents Television Council complaints about a Family Guy episode, though a representative told B&C PTC's contribution was only a little over 7,000 of the 180,000 total.
Whatever the reason, big complaint numbers and court reprieves should not encourage the commission to resume a crackdown that chilled speech to sometimes ludicrous extremes.
The court only said the FCC's defense of its fleeting indecency enforcement was not arbitrary and capricious. It did not say it was wise policy, which it is not.
The FCC should keep its eye on broadband and its hands off content.