The deadline for comments on the FCC’s indecency rules was extended until June 19, confirmed in a notice published in the Federal Register this past week. Given this extension, it is worth reviewing what the FCC proposed to do in this proceeding, as there is a significant amount of misinformation circulating in certain publications and in rumors floating around the Internet about the scope of the proceeding and the FCC's intent in launching its inquiry. In preparation for a recent interview that I did with a talk show on a Midwestern radio station, I was pointed to articles that suggested that the FCC was proposing to allow swearing and nudity on broadcast television, and how that is eliciting tens of thousands of comments from the public (see, for instance the articles here and here). Some other articles and blog posts have gone further, making it sound like the FCC was looking to turn the broadcast airwaves into some sort of adult movie paradise, as if someone at the FCC had woken up one day and thought that such a relaxation of the rule would be a good idea. While these claims make for interesting reading, the truth is much more boring, and demonstrate that the FCC has little choice but to ask for these comments.
As we wrote here, the FCC’s inquiry is initially limited – principally asking for comments on the FCC’s policy on fleeting expletives – those times, usually in a live broadcast, where a single profane word or phrase slips out onto the airwaves. The Commission also invited comments on other aspects of the rules but, other than the fleeting expletives (and a reference to fleeting, nonsexual nudity – like the bare butt that was the subject of the NYPD fine that caused the Commission much consternation in the Courts), that’s all that the Public Notice specifically addresses. While certainly more issues may arise, they arise in this context of dealing with these fleeting incidents, not as part of an attempt to turn broadcast TV into some X-rated video service. And the issues are not being tackled as an attempt to corrupt public morality, but instead because the FCC has to clarify these rules after the Supreme Court found last summer that it had not adequately justified the more aggressive posture that it took on indecency in the last decade.
The Supreme Court case arose out of incidents on two television shows – the Billboard Music Awards and tan episode of NYPD Blue. In the awards show, certain on-stage performers, in their excitement over being before the crowd and winning an award, used language that was perhaps a bit too colorful for the broadcast airwaves. Prior to the last decade, such a slip would have resulted in a nasty letter from the FCC, but usually nothing more. In the last decade, the Commission became more aggressive in its enforcement, issuing fines for even a one-word slip, fines that totaled hundreds of thousands of dollars when the use of these words occurred on a network program that was carried on hundreds of stations.
But, as even Chairman Genachowski, the immediate past Chair of the FCC, apparently recognized in a tweet addressing the use of one of the prohibited expletives by Red Sox slugger David Ortiz in an on-air statement addressing the Boston crowd at the first baseball game at Fenway Park after the Marathon bombing, sometimes the use of these words is understandable, excusable, and perhaps even appropriate. Whether the hard and fast, one strike and you are out rule that had been adopted by the FCC might be too harsh is the subject of the proceeding - and has been the subject of much questioning and litigation since it was adopted. Critics point to seemingly inconsistent application of the policy (e.g. resulting in fines where certain words were used in the PBS documentary series "The Blues", but not when those same words were used in a Memorial Day airing of "Saving Private Ryan", with an introduction by Senator John McCain).
But whatever the merits of the issues, the FCC is not doing this proceeding as part of a conspiracy to open the airwaves so that anything goes, but instead because it pretty much has to do so in order to apply any penalties at all for indecency violations. The Supreme Court ruling last year left the FCC without any clear standards in place to address any violations that might occur. Because it effectively has no clear policies, it has hundreds (perhaps thousands) of station license renewal applications pending well beyond their normal processing dates, or money sitting in escrow deposited by FCC licensees who had unresolved complaints pending against them when they went to sell their broadcast stations (the FCC requiring selling licensees to enter into "tolling agreements" and to make deposits to be held and applied should fines be imposed at some point in the future for these past violations). Without clarifying its policies, the FCC has no way to deal with the pending complaints.
The Court order is what is the being addressed by the FCC – not some voluntary attempt by the regulators to impose some wholesale deregulation of the airwaves. While it certainly is possible that constitutional issues may be raised, as they are in any discussion of regulation on speech, the FCC's request, as we wrote when it was released, is limited to looking for comments on egregious cases. As is the case with basic cable, which is not subject to the indecency rules, most media outlets, even when freed of government regulation, do not degenerate into the morass that some of the commenters appear to fear. But the FCC is not proposing to go even that far. The comments now due on June 19 can address the real issues before the FCC – not some imagined parade of horribles.