While the Second Circuit Court of Appeals has clearly signaled that it still has major problems with the FCC's fleeting-profanity enforcement regime, the Third Circuit has quietly signaled that it may be going in another direction on indecency. At stake is what degree of leeway broadcasters will have from the government to compete with other media not subject to similar content regulation.
The Third Circuit is set to hear oral re-arguments on Feb. 23 about CBS stations' liability for broadcasting Janet Jackson's 2004 Super Bowl reveal. Just as the Second Circuit had done with the FCC's profanity ruling against Fox, the Third Circuit initially threw out the commission's indecency finding against CBS, concluding that its fleeting-nudity enforcement represented an arbitrary and capricious change in policy.
And just as the Supreme Court ruled in April 2009 that the FCC had justified its fleeting-profanity decision against Fox and sent the case back to the Second Circuit, it also kicked the Jackson case back to the Third Circuit, advising it to explore how the Fox ruling might apply.
In a sign that the Third Circuit has taken that to heart, the court issued a request for more information on a point in an FCC brief that invokes the Supreme Court's Fox ruling. In that brief, the FCC notes that the Court had found it was “entirely reasonable” for the commission to conclude that non-literal uses of “offensive words” (an f-word as an adjective) did not need to be uttered repeatedly to meet its indecency standard, which considers a single literal utterance (referring to the act of copulation) as indecent.
The FCC argued in the brief that the Supreme Court “recognized that the commission had up until then established an exception that applied 'only' to 'nonliteral uses of offensive' words, and thus did not cover images.” There was no fleeting-images exception, the FCC argues, so its indecency finding against the Jackson nudity was not a reversal of a nonexistent fleeting-exception policy.
The Third Circuit wants input on what effect the Supreme Court language has on its conclusion that going after fleeting nudity did run contrary to long-standing policy.
“Petitioners are directed to file a letter-brief addressing Respondents' argument that the Supreme Court's account of the history of the FCC's indecency policy in FCC v. Fox Television Stations undermines this court's earlier conclusion that the pre-Golden Globes safe harbor for fleeting material was not limited to nonliteral expletives,” wrote Chief Judge Anthony Scirica in asking for their input on the point. The appeals court has given the parties until Jan. 29 to weigh in.
“This is a really small point,” says one veteran First Amendment attorney representing opponents of the FCC's indecency crackdown, but adds, “The question from the Supreme Court was: Does anything in the Fox case change what [you] did before? It certainly is an indication that they at least have some suspicion that the Fox case does bear on it.”
The Third Circuit's interest may just be in covering its bases, says another First Amendment attorney. But it could also signal that it is looking for a way to confine its decision to the procedural issues that produced its initial arbitrary-and-capricious conclusion, and not get to the fundamental First Amendment challenge broadcasters are making to indecency enforcement in general. After all, courts tend to avoid getting into constitutional issues if a narrower interpretation is available.
The Second Circuit heard arguments on Jan. 13. The judges there suggested, as they did in original argument, that the FCC would have a tough time justifying its decision on First Amendment grounds because of its apparent vagueness.
In the meantime, the FCC still has more than a million indecency complaints it has yet to tackle. While FCC Chairman Julius Genachowski has said they are not in abeyance while the courts weigh the issues, the practical effect is that broadcasters are still unclear as to what they can and can't broadcast, and those who have complained have yet to receive a response.
FCC Minds the Kids
While “protecting” kids from fleeting nudity and profanity is on the FCC's to-do list, it is not the only content-control issue on its radar screen.
Just last week, FCC Chairman Julius Genachowski talked up a new study from the Kaiser Family Foundation that showed a dramatic rise in media consumption among youth 8 to 18, and cited both the dangers and opportunities amid this explosion in digital media. That shout-out is telling because the FCC previously used a similar Kaiser study to explain why it was launching a wide-ranging review of its kids-TV rules, a review one ad-industry lobbyist called the most sweeping in recent memory.
It wasn't clear whether broadcasters should be relieved or offended, but the chairman indicated that broadcasters should not be counted on to provide educational and informational programming. In remarks at the study's unveiling in Washington last week, Genachowski, who worked to implement the Children's Television Act as a top FCC staffer in the 1990s, said the study underscores the FCC's effort to update that act for the digital age.
“We know why educational and informational programming on broadcast television has historically been a challenge,” he said. “The business model lends itself to the opposite. If you have a business model that is premised on aggregating the largest possible audience, it doesn't make sense for folks in that business to wake up every day to say, 'How exactly do we educate 5-to-8-year-olds?'”
However, the country has decided that broadcasters have to do it anyway, Genachowski added, hence the Children's Television Act, which requires TV stations to air a minimum of three hours of educational programming a week and limits the commercials in that programming. “But as we implement those, we have to understand that we are fighting against a business model that quite understandably wants to push broadcasters in a different direction, hence the tension, hence progress is slower than we would like.”
One positive note for advertisers concerned about the FCC's kids media inquiry: The commission has extended the deadline for comment by one month, to Feb. 24, after those advertisers asked for more time to make their case.