In a Public Notice released earlier this week announcing a new rulemaking (NPRM), the Federal Communications Commission finally got around to revisiting its long-standing indecency rules. The NPRM is in response to the Supreme Court's decision last September in FCC v. Fox Television where actions taken against broadcasters airing fleeting expletives were determined improper for lack of notice that such brief utterances violated FCC policy. Bono, Cher and the producers of NYPD Blue breathed a brief sigh of relief.

The FCC Chairman had already ordered the FCC's Enforcement Bureau to cull the backlog of more than one and a half million complaints principally by dismissing complaints that were beyond the statute of limitations or where the record was inadequate or too stale, or that involved cases outside FCC jurisdiction, or otherwise determined not to be suitable for further enforcement. Instead, the Enforcement Bureau is to focus on "investigating egregious indecency cases." This refocus, we believe, is also the result of budgetary reductions and simply inadequate staffing at the agency. After all, more than 1,500,000 complaints built-up before the Supreme Court said anything to call the FCC's current policies into question.

So, going forward, the FCC will try to figure out what should be done:

  • Whether the full Commission should make changes to its current broadcast indecency policies or maintain them as they are?
  • Should the Commission treat isolated expletives in a manner consistent with the 1987 Pacifica Foundation, Inc., decision (“If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.”)?
  • Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)?
  • Or should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?

One note of caution: current substantive indecent policies remain in place while the FCC tries to figure out where it is going.

And, since the Supreme Court did not find the FCC's policies unconstitutional, the FCC can still try — as it suggests — to come up with a policy that is understandable, puts broadcasters on notice and is otherwise consistent with the First Amendment. And, not unexpectedly, supporters of strict enforcement are already weighing in. Parents Television Council President Tim Winter, for example, stated:

“On behalf of millions of families, the PTC firmly believes that the FCC should not limit indecency enforcement only to 'egregious' vs. isolated instances. The FCC is supposed to represent the interests of the American public, not the interests of the entertainment industry.

Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course which will guarantee nothing but a new rash of new litigation.”

After the Commission basically punted during the numerous court challenges over the last several years, Chairman Genachowski's successor will be the one to wrestle with this problem.