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Congress Mulls Obscenity

Jun 9, 2007  •  Post A Comment

Even as broadcasters celebrate a court decision overturning the Federal Communications Commission’s new policy prohibiting even fleeting obscene words on broadcast TV, some legislators are moving to buttress anti-indecency rules.

An aide to Sen. Jay Rockefeller, D-W.Va., confirmed last week that the lawmaker is considering a measure that would give the FCC additional authority to regulate the expletives. The indecency provision would be added to legislation the senator is already preparing that is aimed at beefing up the FCC’s authority to regulate media violence on broadcast and cable TV.

“The senator is reviewing the [court] decision,” said the aide. “He is going to look at what may be needed to ensure that the FCC has the tools needed to get the job done to enforce indecency and violence.”

Sen. Rockefeller’s media violence bill is slated for a Senate hearing in late June, which means any additional legislation would have to be filed in the next two weeks.

Several lobbyists and broadcast lawyers said they have received indications that other media-regulation legislation could be forthcoming, but details and the key sponsors could not be confirmed last week.

After last week’s decision by the Second U.S. Circuit Court of Appeals overturning the FCC’s policy permitting censure of fleeting obscenities, legislators began rattling their swords.

Immediately after the ruling Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, urged the FCC to appeal it to the Supreme Court.

The ruling was received as a victory by broadcasters trying to parry FCC Chairman Kevin J. Martin’s obscenity campaign. Some FCC watchers said the possibility of legislation and uncertainty over how the FCC will try to overturn the decision makes the ruling’s eventual impact difficult to gauge.

“I think calling it a huge victory for broadcasters or the death knell for regulation are too much one side or another,” said Gloria Tristani, a former FCC commissioner who now works as a lawyer in private practice.

Lawyers also said that while the decision related to live content—specifically statements presenters made during Fox’s telecast of the Billboard Music Awards and NBC’s telecast of the Golden Globes—courts could broadly interpret the ruling, expanding its effect by applying it to utterance of profanities in movies and other programming.

In striking down the FCC’s “fleeting expletives” policy, the divided three-judge panel issued a stay on its enforcement unless the FCC can provide better justification. The court expressed considerable doubt that any limit on “fleeting expletives” would meet First Amendment scrutiny.

The FCC has through July to decide whether to appeal the decision to the full roster of Second Circuit judges. The agency could instead try to provide the court better justification for its enforcement stance or ask the Supreme Court to hear an appeal.

Several broadcast and consumer group lawyers, who didn’t want to comment publicly, said the ruling’s impact could also depend on how the Third Circuit Court of Appeals rules in CBS’s challenge of the FCC’s fines imposed in the Janet Jackson Super Bowl incident. A three-judge panel of the Philadelphia court is due to hear oral arguments in that case Sept. 11.

Mr. Martin’s strong statement last week in response to the ruling — in which the profanities uttered on the shows are repeatedly cited — may be an indication of his frustration over the case. (To read the statement in its entirety, go to http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-273602A1.pdf.)

The statement prompted surprise in Washington. One lobbyist said it was the strongest statement he has seen in the capital from a government official in more than 20 years and termed it hardly “chairmanesque.” A Washington lawyer said colleagues initially thought it might be a well-written parody of Mr. Martin’s reaction.

Mr. Martin was chairman when the FCC issued the ruling the court overturned—that Fox stations violated indecency rules in airing comments from Nicole Richie and Cher on the Billboard Music Awards. But it was Mr. Martin’s predecessor, Michael J. Powell, who was chairman when the FCC, in what was seen as a reversal of policy, overturned a decision by the commission’s media bureau to declare that rock singer Bono’s use of a fleeting expletive was subject to FCC enforcement.

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