The 2004 Janet Jackson- Super Bowl reveal seems like ancient history. But when the Third Circuit Court of Appeals hears new oral arguments in the case on Feb. 23, the future of broadcast television will be very much at stake. Whether or not this court, and ultimately the Supreme Court, decides to uphold the FCC’s authority to regulate fleeting indecency will impact not only broadcasters’ bottom lines, but their ability to compete in a multi-platform media world.
First, there’s the matter of the fine. When CBS stations were cited for broadcasting Jackson’s “wardrobe malfunction,” the fine was $550,000. Thanks to legislation to increase the penalty tenfold, the same fine would cost CBS more than $5 million today.
But the ongoing regulatory uncertainty has been costly in and of itself. The FCC has a backlog of well over a million indecency complaints, as well as TV station licenses up for renewal, that are awaiting some regulatory clarity. And networks have already taken expensive precautionary measures.
“This completely unpredictable regulatory regime does impact people,” says a veteran indecency attorney who asked not to be identified. “It requires spending a lot of time and money on [tape] delays, which always work erratically.”
BROADCASTERS MAY NOT BE ALONE
But if the court upholds the FCC’s ability to levy hefty fines for fleeting images and language, broadcasters may not be the only ones looking over their shoulders. As the saying goes, once you see the camel’s nose enter the tent, the camel can’t be far behind. So the commission, emboldened by the courts, may seek to extend its regulatory powers over content into other media, including cable, satellite and the Internet— something broadcasters would applaud.
The prospect of the FCC regulating content in other media has come up as the commission considers its regulatory responsibility to children. FCC Chairman Julius Genachowski continues to promote parental choice, but the FCC is trying to figure out how it may need to regulate kids content differently in the digital age. (Coincidentally, the deadline for filing comments in the kids content-control inquiry is Feb. 24, the day after the Jackson arguments.)
Even so, the distinctions between broadcasting and other video-delivery media are blurring. The FCC is pushing for a universal set-top that would unite cable or satellite and broadband on the home TV set. The goal is to promote broadband adoption, since 99% of the country has a TV set. And if broadcasters can convince wireless companies to put TV tuners in subscribers’ devices, the distinction between video-delivery services will shrink even more.
John Crigler, a partner at Garvey Schubert Barer who has represented Pacifi ca in indecency cases, says that is a real possibility. “If the FCC’s authority to regulate broadcasting is upheld, there may be a push, even by broadcasters, to extend that authority to all media just on a competitive basis,” Crigler says. “I never thought it was a great argument, but broadcasters have in the past, from time to time, said, ‘Well, if you are going to regulate us, regulate cable and satellite so we all play by the same kind of rules because we are all competing for the same listeners and viewers.’”
LEVELING THE PLAYING FIELD
And full First Amendment protection for broadcast content isn’t just about constitutional bragging rights. If broadcasters could escape regulatory scrutiny—or at least not suffer it alone—they would be free to compete on a more level playing field with other platforms on which content is not regulated.
That doesn’t mean suddenly airing full-frontal nudity, which broadcasters already can do (but choose not to) after 10 p.m. It means having the creative freedom that producers like NYPD Blue creator Stephen Bochco says the FCC crackdown has denied them.
As it stands, according to the veteran indecency attorney, broadcasters likely couldn’t get away with airing the most acclaimed drama in recent years, AMC’s Mad Men, given its depiction of liberal alcohol and tobacco use and serial infidelity.
“Producers would rather have an environment where they are less constrained,” the lawyer says. The decisions in the Jackson case and the still-unresolved Fox profanity case could determine whether that sort of creative environment—lately so commonplace in the realm of cable programming—can exist on broadcast television.