FCC Hacks Away at V-Chip

Commission argues it's obligated to protect kids from profanity
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The FCC thinks the V-chip isn't much help in preventing kids from seeing programs that may have dicey content. And in a filing to a federal court last week, FCC lawyers say that the commission itself plays something of an in loco parentis role to help parents, even if parents won't help themselves.

The commission said it was only trying to give broadcasters more guidance on its definition of indecency in ruling that Fox's Billboard Awards live telecasts in 2002 and 2003 were indecent.

Although the FCC says those utterances—“fuck” by Cher in 2002 and “fucking” and “shit” by Nicole Richie a year later—violated FCC rules, no fine was levied. That's because the incidents happened before the FCC gave notice that it was cracking down on “fleeting expletives” in the wake of U2 singer Bono's use of the phrase “fucking brilliant” on a live Golden Globes telecast on NBC in 2003.

Big Four Challenge

But Fox, CBS, ABC and NBC challenged the FCC's indecency rulings, which they find vague and contradictory.

Broadcasters prefer the ratings system and descriptors—L, V, etc.—that can be used in conjunction with the V-chip, and they argue that their system is a less restrictive means of regulating content. “Less restrictive” is the measuring stick the FCC is required to employ when regulating broadcast speech.

But if the broadcasters' argument flies, it could undercut the FCC's ability to regulate broadcast content, period.

The FCC held its ground last week. It said the V-chip is ineffective and the ratings confusing. Beyond that, it said, the V-chip would not have helped because the Billboard broadcasts were “misrated.” And more broadly, it argued, the chip is insufficiently understood by parents.

A First Amendment attorney who has handled indecency cases says the FCC's brief was well-written but its case was weak. Another attorney predicts the case would have to get to the Supreme Court before it's ultimately resolved.

The industry has mounted a PR campaign to tout V-chip to viewers. But there's not much evidence many parents use it.

The FCC said it has “independent and compelling interest in preventing minors from being exposed to indecent broadcasts.” It also maintained last week that it was justified in decreeing cussing on the Billboard Awards telecast indecent. Nothing in broadcasters' arguments since then has swayed it from that opinion, it said, and nothing prevents it from levying hefty fines if it chooses.

Earlier, the FCC changed its mind over indecency rulings against CBS for allowing a guest on The Early Show to use the word “bullshitter,” because a news show deserves wider berth. On technical grounds, it also backed down on ABC's NYPD Blue for allowing the use of the same root word.

Indeed, the networks say, the FCC's crazy quilt of indecency rulings confuses programmers.

The FCC insisted that broadcasters have “only limited First Amendment protection” and that it gave the industry fair warning that it was changing policy on swear words.

Its filing last week also argued that, although Fox had pointed to other swearing that had passed FCC muster—in Saving Private Ryan, for instance—the network had not even tried to defend the artistic merits of stars' swearing extemporaneously on the Billboard Awards telecast. Fox had no comment on the FCC brief.

The FCC said the “f-word,” when used as an intensifier—for example, in Bono's remark—is still covered by the indecency definition because its intensity “derives from its implicit sexual meaning.”

Because broadcast spectrum is a scarce resource, the commission said, broadcasters' First Amendment protection is limited and justification for speech regulation need only be substantial and the means narrowly tailored, rather than the “least restrictive means” test applied to other forms of speech regulation.

Narrowly Tailored

The FCC argued that its indecency approach is narrowly tailored to satisfy the compelling government interest in protecting children. It also points out that indecency rules don't apply to shows airing after 10 p.m., indicating that the commission is not being overly restrictive.

The commission asked the court to uphold its “reasonable assessment” that contemporary standards, “no matter how loosely viewed, simply do not permit entertainers gratuitously to utter the 'f-word' and 's-word' in awards shows broadcast on national television at times when a substantial number of children are certain to be in the viewing audience.”

Broadcasters will have a chance to respond. Meanwhile, the FCC has a deadline of Dec. 26 to respond to the CBS challenge of its $325,000 Janet Jackson fine. As one FCC staffer put it, “Merry Christmas.”

E-mail comments to jeggerton@reedbusiness.com

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