Indecency Fight Likely to Linger Past Election

By Ira Teinowitz

An appellate court’s decision overturning the Federal Communications Commission’s fines for the Janet Jackson Super Bowl “wardrobe malfunction” could push the indecency fight to post-Bush versions of the FCC and Congress.

The panel of the 3rd Circuit Court of Appeals in Philadelphia overturned the FCC’s indecency fine of $550,000 against 20 CBS stations, saying the FCC hadn’t provided adequate notice to broadcasters that it was changing its standards on how it would view “fleeting” images of nudity, and that it hadn’t thoroughly established that CBS was responsible either by inadequately supervising Ms. Jackson and co-star Justin Timberlake or acting “recklessly” by failing to have in place technology to censor their live performance.

Lawyers and former FCC officials said the decision’s timing, together with the Supreme Court’s plan to hear oral arguments on a different indecency case this fall, suggest the FCC could be forced to temporarily hold off crafting new indecency rules. Even a slight delay could push a vote past the Jan. 20 inaugural.

“What it will do is force the FCC to focus on providing the broadcast industry more notice of the standards going forward,” said William Kennard, a former FCC chairman and now managing director of telecommunications and media for the Carlyle Group. “That is what the court decision was all about: ‘You didn’t provide adequate guidance.’”

He suggested drafting the new guidance will take time and noted, “We have a presidential election coming up. You might have different points of view depending on who is in office.”

Congressional sources said although some legislators support regulations giving the FCC greater authority to act on indecency—perhaps against cable as well as broadcasters—the ruling arrived just as legislators are ready to depart for the August recess. With the political campaign likely to keep any fall session short, several legislative aides said action isn’t likely until next year.

Still, there is interest in acting on the issue.

“I am disappointed that this court decision would make it difficult for the FCC to make use of the tools that they have long had to do the job that Congress and the public have long expected [them] to do,” said Sen. Jay Rockefeller, D-W. Va.

Sen. Sam Brownback, R-Kan., called broadcast licenses “public property.”

“It is a privilege for broadcasters to use those public airwaves,” he said. “We ask that broadcasters keep their content free from indecent, obscene and profane speech during hours when children are likely to be watching. Broadcasters who do not abide by such guidelines should be held accountable and should face suitable fines.”

How much the ruling alters TV programming is even less certain because the appellate court didn’t directly examine the content of the Super Bowl halftime show.

The court overturned the fines because the FCC didn’t give stations enough notice of its new aggressive indecency stance and because it never demonstrated that stations or CBS were responsible for the performers’ actions, directly or by not taking sufficient preventative steps. The court never got to the First Amendment questions of whether the FCC could act if better notice were provided and whether in fact the stations were responsible.

That still leaves intact the message that five FCC commissioners—Republicans and Democrats—originally sent: The content of the Janet Jackson halftime show was indecent.

“This decision doesn’t address whether it was indecent or not,” said Kenneth Howard, a former FCC aide who is now a partner at Washington law firm Baker Hostetler. “It doesn’t clear up the state of FCC enforcement and does not provide clear guidance.”

Mr. Kennard, speaking last week as a surrogate for Sen. Barack Obama at a policy forum sponsored by the Minority Media & Telecommunications Council, didn’t rule out the possibility that an FCC under Mr. Obama would impose indecency fines. He said Mr. Obama has been much more focused on giving parents better tools to control content—such as better content ratings and more effective V-chips—than on limiting content.