It’s not taking long for Congress to move to overturn the broadcast networks’ big court victory over the Federal Communications Commission’s “fleeting expletive” policy.
A week after a Senate panel turned away on procedural grounds one attempt to reverse June’s appellate court ruling, the Senate Commerce Committee today without debate sent similar legislation to the Senate floor.
Sponsored by Sen. Jay Rockefeller, D-W.Va., the legislation requires the FCC to “maintain a policy that a single word or image may constitute indecent programming.”
There is some dispute over whether the legislation truly overturns the court’s ruling.
The FCC, under pressure from Congress, has been stepping up its regulation of expletives as part of expanded indecency enforcement in the wake of incidents like the Janet Jackson 2004 Super Bowl halftime show. Broadcasters have been fighting the changes, arguing they reverse 30 years of FCC policy and are unconstitutional because it’s not clear what is and is not allowed.
The court case overturned the FCC’s determination last year that Fox’s airing of comments by Nicole Richie and Cher during live broadcasts of the 2002 and 2003 Billboard Music Awards amounted to indecency.
That ruling said, in part, that the FCC hadn’t provided adequate reason for changing its previous policy. The new legislation would allow the FCC to say the change was a result of direction from Congress.
Some lawyers today said the legislation still doesn’t answer the court’s other concern—that the policy isn’t constitutional, because enforcement standards are too vague.
“It’s not entirely clear that it entirely overrules the case,” said Marvin Johnson, First Amendment counsel for the American Civil Liberties Union.
Sen. Rockefeller and FCC Chairman Kevin J. Martin said they were hopeful the legislation would send a clear message.
“I appreciate the actions which affirmed the Commission’s ability to protect our children from indecent language and images on television and radio,” said Mr. Martin. “Significantly, members of Congress stated once again what we on the Commission and every parent already knows: Even a single word or image can indeed be indecent.”
Sen. Rockefeller called the FCC’s move to act on fleeting expletives “long overdue.”
“This legislation is a small but critical step in making sure that the airwaves remain free of words and images that are patently offensive to the vast majority of Americans,” he said. “If the Federal Communication Commission can not enforce its own rules, than I’m concerned that parents will be held hostage to those who wish to flagrantly disregard the spirit of the family hour and the intent of the TV rating system.”