After years of high-profile incidents and multiple legal challenges, the Federal Communications Commission is considering an update to the agency’s broadcast indecency policies.
The FCC Enforcement Bureau and the Office of General Counsel are seeking public comment on whether to keep the current rules in effect or to make changes to the policy on isolated expletives and fleeting instances of nonsexual nudity.
The agency’s authority to regulate indecency was upheld by the U.S. Supreme Court in the infamous 1978 case FCC v. Pacifica Foundation, which involved George Carlin’s “Seven Words You Can Never Say On Television.” While enforcement of the FCC’s policy has waxed and waned over the years, the agency addressed several high-profile incidents during the terms of President George W. Bush, most notably the Super Bowl “wardrobe malfunction” involving Janet Jackson (and Justin Timberlake), for which the agency fined CBS $550,000.
The agency also warned a broadcast network when Cher and Nicole Richie uttered expletives at the Golden Globes ceremony, and it warned and later fined ABC more than $1 million over a seven-second image of nudity on NYPD Blue. The broadcasters challenged the FCC’s rules, calling them “arbitrary and capricious,” in litigation that twice went all the way up to the U.S. Supreme Court. In 2009 the justices upheld the agency’s ban on fleeting indecency and declined to address the broadcasters’ First Amendment challenge to the policy.
On remand, the U.S. Court of Appeals for the Second Circuit held that the agency’s rules are “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue.” But when the case returned to the Supreme Court last year, the justices again sidestepped the issue and found that the agency’s enforcement policy was “vague” and failed to satisfy the due process rights of broadcasters.
In light of the Court’s decision, FCC Chairman Julius Genachowski (who resigned and will be leaving in the near future) instructed Commission staff “to commence a review of the Commission’s broadcast indecency policies and enforcement to ensure they are fully consistent with vital First Amendment principles.”
In a statement, the FCC said it is seeking “comment on whether the full Commission should make changes to its current broadcast indecency policies or maintain them as they are. For example, should the Commission treat isolated expletives in a manner consistent with its decision in Pacifica Foundation or 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? As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives? Commenters are invited to address these issues as well as any other aspect of the Commission’s substantive indecency policies.”
Comments will be accepted until May 20.
To read the FCC’s press release, click here.
Why it matters: The agency noted that as a result of the Court’s decision, it stepped up enforcement actions and closed more than 1 million complaints since September 2012, “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent.” If the agency chooses to update the broadcast indecency policy – a move that will likely be welcomed by broadcasters – we will continue to follow the story.