FCC Defends ABC, Fox Indecency Decisions to Supremes

Defends scarcity argument for content regs, says the Second Circuit Court of Appeals was off base with vagueness standard
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The FCC has filed its petitioners brief to the Supreme Court defending its indecency decisions against Fox and ABC -- nudity on NYPD Blue and swearing in the Billboard Awards shows.  The government sought the High Court review after the Second Circuit Court of Appeals threw out both those decisions as unconstitutionally vague.

The FCC took 54 pages or so to defend its 10-word conclusion: "The judgment of the court of appeals should be reversed."

The Fox and ABC decisions were rolled into one appeale are before the Supreme Court for a ruling on whether the FCC's indecency enforcement regime is unconstitutionally vague, as those lower courts held.

The nut graph on the FCC's argument is that their indecency policies are constitutional as applied in those three cases as well as on their face. Commission lawyers invoked the compelling interest in protecting children, stood by the scarcity rationale for content regulation, and said the availability of alternatives like cable (which is available in most homes and is not under indecency regs) does not change the fact that broadcast programming "maintains a dominant presence in American life and culture." (editor's note: Broadcasters fighting for their spectrum might want to save that quote)

The FCC says the Second Circuit got it wrong when it found the policy unconstitutionally vague.

"In addressing respondents vagueness challenges, the court of appeals never asked what should have been the dispositive question," said the FCC, "whether Fox and ABC had fair notice that the expletives and nudity in the broadcasts under review could violate the commission's indecency standards." The FCC's answer is that they obviously did. "Fox could not reasonably have believed that the concededly gratuitous broadcast of the F-Word and the S-Word during primetime awards shows with millions of children in the audience would not be considered indecent."

"Those words have long been a focus of the FCC's indecency enforcement efforts, and they featured prominently in the Carlin monologue itself," said the FCC. "The networks' own internal standards generally prohibit broadcast of those words, and Fox edited them out of the relevant awards-show broadcasts when they aired on tape delay in later time zones. "

The FCC says that instead, the Second Circuit based its decision on "the policy's application to broadcasts not before the court and on perceived inconsistencies between those applications."

In overruling the FCC's findings on vagueness, said the FCC, the court "relied on FCC indecency orders involving news, public affairs programming, or artistic necessity. Those orders did not create any meaningful uncertainty as to the legal status of Fox's own broadcasts, however, because there is no reasonable argument that Fox's awards-show broadcasts fell into any of those categories."

As for actress Charlotte Ross' naked behind on ABC, the FCC said that network had plenty of notice as well.

"The Commission long ago warned broadcasters that the televising of nudes might well raise a serious question of unlawful indecency, even if the images lack 'prurient appeal,'" said the FCC, citing a 1960 programming inquiry. "Although the FCC has not categorically treated all images of nudity as indecent, the 'voyeuristic' images contained in ABC's broadcast cannot reasonably be analogized (as ABC suggests) to a scene involving nude concentration camp prisoners in a broadcast of the film Schindler's List."

The FCC defended its contextual approach to its indecency enforcement "duty" upheld by the Supreme Court's own Pacifica decision -- a decision some broadcasters want this Supreme Court to rethink.

The FCC suggested broadcasters should be well aware of the commission's regulatory authority over them and of what it expects on the indecency front. "The FCC enforces its broadcast indecency regulation only against broadcast licensees, who are highly sophisticated entities that operate in a heavily regulated market," said the commission. "Those licensees can reasonably be expected both to pay particular attention to the agency's explication of its indecency standard and to be familiar with "contemporary community standards for the broadcast medium."

The commission said it has the discretion to find against swearing that is not as repetitive as George Carlin's was in the Pacifica case, or nudity "that is not 'highly sexualized' or that appears on screen for only seven seconds."

FCC lawyers said the First Amendment does not prevent it from protecting children and that broadcast programming remains uniquely accessible to kids. "Millions of households in which television sets are present do not subscribe to cable or satellite services and therefore receive only broadcast programming. Broadcast programming also remains uniquely accessible to children, in part because its availability to children does not depend on any affirmative conduct by parents (such as subscription to a particular cable channel) beyond the initial acquisition of a television or radio."

In fact, the FCC said that the availability of alternatives actually helps its case, "mitigating concerns regarding broadcast regulation since both viewing adults and content creators have a greater range of opportunities to access and convey programming that is not appropriate for children." And broadcasters themselves are not prevented from airing indecent material, the FCC added, so long as they do it in the 10 p.m. to 6 a.m. safe harbor. "Regulation of indecent material has been a defining feature of broadcasting since the medium's very inception, and it is one of the enforceable public obligations that broadcasters accept in return for their free use of the public's airwaves," it said.

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