It is not unfair for the government to restrict what broadcasters can air during the daytime, and their argument that they are at a competitive disadvantage versus unregulated cable content comes despite the fact that they own "significant" portions of that cable content.
That was the Parents Television Council's take on the appeals court smackdown of the FCC's indecency decision against swearing in a Fox awards show, which is being reviewed by the Supreme Court at the FCC and Justice's request.
In an amicus petition in support of the government and its regulatory regime Wednesday, PTC said the decisions were neither an affront to expression or a muzzle on speech.
"Instead," they said, "it is about whether [the FCC's statutory authority to regulate indecency] is to have any continuing vitality in affecting what the broadcasters can send into America's homes, or whether, as respondents seem to argue, the indecency statute is a polite fiction that can be safely ignored." PTC, not surprisingly, wants the Supreme Court to reverse the Second Circuit and uphold the constitutionality of the FCC's policy, which the FCC defended in its brief with the court last week.
It was complaints by PTC members that encouraged the FCC to crack down on fleeting and scripted nudity and language, that and pressure from Congress.
"Broadcasters are not unfairly put upon by not being able to broadcast whatever they want until after 10 p.m. each day," said PTC. "Nor are they really at a competitive disadvantage with cable; they own significant portions of the cable spectrum and therefore control and sometimes even create the very cable content that they contend so disadvantages them as broadcasters. They cannot with a straight face point to their often coarser fare on cable as a reason to permit them to do the same on broadcast television."
The Supreme Court has been asked to rule on whether the FCC's indecency policy is unconstitutionally vague, as the Second circuit concluded, with the Fox case combined with a fine against ABC stations for partial nudity in an episode of NYPD Blue because the court threw out that decision given its Fox finding.
Also at issue, but not (yet) before the court, is the higher-profile Janet Jackson Super Bowl reveal indecency fine against CBS stations, since that fine was also under the indecency enforcement policy at issue. It was the Supreme's initial decision that the FCC's was not procedurally void -- it did not reach the constitutional question -- and remand to the lower courts that prompted the Second Circuit to come back with the finding on constitutional grounds.
The Jackson remand is still stuck at the Third Circuit, which had oral argument and asked for supplemental briefs but has still made no decision on whether that circuit, too, thinks the indecency enforcement regime, either as applied or generally is unconstitutional.