Indecent Exposure

Broadcasters try to show legal flaws in FCC’s ‘bygone’ policy
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Broadcasters sought and got an extension from the FCC to file comments on indecency enforcement, but when they did finally weigh in, it was essentially with one main message: Broadcasting is no longer the uniquely ubiquitous or accessible medium that the Supreme Court used to justify subjecting it to content regulations that are not applied to others.

The Big Four networks and the National Association of Broadcasters, as well as some station groups filing comments independently, all pointed to the rise of multiple platforms as arguing for a more restrained enforcement policy. Broadcasters said the FCC’s approach should have clearer guidelines and stricter requirements for actionable complaints—and preferably the entire regime and whether it is even constitutional to apply the regs should be rethought. The commission has proposed going after only “egregious” complaints, though that in itself raises some questions about what different FCCs would find “egregious.”

Here are some highlights from the comments, led off by Fox, which has been the most unrelenting broadcaster in its calls for the FCC to cool it. Reply comments are due July 18.

Fox: “[We urge] the Commission to conclude that it is legally required, and logically bound, to cease attempting to enforce broadcast indecency limits once and for all. Time and technology have marched inexorably forward, but the Commission’s untenable effort to define indecent content through a hodgepodge of inconsistent and uneven rulings remains stuck in a bygone era.”

National Association of Broadcasters: “In the 35 years since the Supreme Court’s decision in FCC v. Pacifica, the rationale for broadcaster-specific limits on ‘indecent’ speech has crumbled under the weight of changes in technology and media consumption. Specifically, with regard to the government’s concern that children may be exposed to adult-oriented or otherwise inappropriate material, there is no principled way to focus solely on broadcast content. Children in particular enjoy unfettered access to content via devices that they carry in their pockets and backpacks…. In this environment, the constitutionality of a broadcast-only prohibition on indecent material is increasingly in doubt.”

NBCUniversal: “If Pacifica’s premises were ever accurate, they assuredly are not true today. Broadcast TV is not a uniquely pervasive presence in the lives of 21st Century Americans; in today’s world of cable and satellite television and the Internet, it is just one among many methods by which viewers access the programming they prefer. Nor is broadcast television uniquely accessible to children compared to other media, especially in light of new technology and industry initiatives that empower parents to control what their children watch.”

Joint Broadcasters filing (including Allbritton, Cox, Media General, Meredith): “Joint Broadcasters commend the FCC for tackling this difficult issue, one fraught with constitutional concerns. Given these constitutional issues and technological developments over the last several decades, it is highly conceivable that the FCC may not be able to derive a judicially sustainable indecency enforcement policy.”

CBS: “The day when a child watching television was almost certain to be watching broadcast television has long since passed. The continued constitutionality of a regulation intended to protect children from indecency in the audio-visual media that omits cable television acknowledged to be at least as ‘pervasive’ as broadcasting is subject to serious doubt.”

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton

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