It’s decision time for Federal Communications Commission Chairman Kevin J. Martin, as two courts stand ready to determine whether his high-stakes crackdown on broadcast indecency will leave broadcasters or the FCC crippled.
In what is shaping up as the biggest test of the FCC’s indecency authority since the Supreme Court ruled that a radio station could be fined for airing George Carlin’s seven dirty words monologue more than a quarter-century ago, the courts could either sharply rein in the FCC and potentially move broadcast TV rules closer to the more relaxed standards of cable, or open the door wide to additional FCC actions.
On Dec. 20, a three-judge panel of the 2nd Circuit Court of Appeals in New York will hear oral arguments on Fox Television Stations’ challenge of an FCC ruling that Cher’s and Nicole Richie’s comments during the Billboard Music Awards shows in 2002 and 2003 were profanity and violated indecency rules.
Then early next year, a panel at the 3rd Circuit Court of Appeals in Philadelphia is due to hear CBS’s challenge of the FCC ruling fining 20 of its stations a total of $550,000 for the 2004 Super Bowl half-time show that featured Janet Jackson’s infamous “wardrobe malfunction,” which the FCC said violated indecency rules.
“This matters a great deal both because it really is having a great impact on the program content and the day-to-day lives of creators,” said Andy Schwartzman, executive director of the Media Access Project, representative for the Center for Creative Voices, which has intervened in the case. The center represents directors and producers of TV content.
Mr. Schwartzman said Congress’ decision to increase FCC fines together with the networks’ use of veteran Supreme Court legal counsel indicates the importance the networks place on the cases and the possibility they could head to the Supreme Court.
David Hudson, a research attorney with the First Amendment Center in Nashville, called the cases “hugely important.”
“We’ve seen an upsurge in indecency regulation in the last five years. This goes to the heart of important First Amendment issues about what some people find offensive,” Mr. Hudson said. “If the FCC wins, it will put a chill on the broadcast medium. In an attempt to sanitize the airwaves, it would diminish creativity.”
Advocates of the crackdown dispute that.
“It is bogus. It is pathetic that the genius of Hollywood sees a need to throw this up as an excuse,” said Tim Winter, executive director and president-elect of the Parents Television Council. “They can be as graphic as they want after 10 p.m.”
The FCC crackdown began in 2004 under former Chairman Michael J. Powell in the wake of the Janet Jackson incident.
After first acting on radio cases, the FCC reversed an initial staff decision and in March 2004 cited as indecent rock singer Bono’s comment during an NBC telecast of a Golden Globe Awards show that the award was “f-ing brilliant.” In September 2004, the FCC fined the CBS stations over the Janet Jackson incident and in October of that year it fined Fox stations over a “Married … With Children” episode.
Mr. Martin became chairman in March 2005 and a year later the FCC unveiled an omnibus order resolving 300,000 complaints that was intended to provide broadcasters new guidance. The order said some incidents weren’t indecent while others were and warranted fines, and ruled that Cher’s and Ms. Richie’s language was indecent, but withheld fines.
Most of the cases involving fines remain at the FCC awaiting petition for reconsideration rulings and stymieing broadcasters’ attempts to challenge them in court. NBC and other networks have responded by entering the Fox case.
“This is about principle and what is happening, the effect it is having on what we do,” said one broadcast industry lawyer.