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New Indecency Rule Roils TV Regulation

Jun 9, 2007  •  Post A Comment

Broadcast networks are breathing a bit easier in the wake of a federal appeals court decision last week that overturned Federal Communications Commission indecency findings against Fox Broadcasting for airing so-called “fleeting expletives” during live broadcasts.
While the broadcasters expressed relief in measured statements following the news, they are keeping safety nets in place on live programming.
CBS planned to impose a several-second delay on its broadcast of the Tony Awards, scheduled for last night. Fox pretaped a performance of Green Day, a rock group known for dicey lyrics, for its “American Idol” finale in May.
The outcome of the fleeting expletives controversy has yet to be seen, as the U.S. Court of Appeals for the 2nd Circuit vacated the indecency finding against Fox and told the FCC to go back and justify its decision. The networks have argued all along that they are the best line of defense against indecency because they know their advertisers and their audiences and what attracts or repels them.
Now FCC Chairman Kevin Martin must decide, presumably with the approval of the Justice Department’s Solicitor General’s Office, whether to better explain the agency’s sudden change in policy a few years ago that spurred the findings of indecency against Fox. Until 2004, the agency let fleeting expletives slide.
CBS has a date next month in Philadelphia with the U.S. Court of Appeals for the Third Circuit to make its case that it shouldn’t be subject to a fine of $555,000 for broadcasting a quick glimpse of Janet Jackson’s breast during the 2004 Super Bowl.
Neither CBS affiliates, who are not automatically indemnified by the network if fined for material that originated on the network, nor the National Association of Broadcasters, which would like CBS to rejoin the lobbying group, have filed “friends” briefs in the Super Bowl case. Barring changes of heart in those quarters, the network will argue its case without allies.
Washington media lobbyists hesitate to extrapolate from the Second Circuit’s ruling in favor of Fox on the fleeting expletives issue to predict how the Third Circuit might rule in the CBS/Jackson case.
In the Fox case, all four broadcast networks’ affiliate groups withdrew friend-of-the-court briefs. That’s despite the fact that local stations, which every day produce hours of live local news that could be vulnerable to someone uttering something considered indecent, arguably had more riding on the fleeting expletives outcome than did Fox.
Some industry people familiar with the situation, who declined to comment on the record, say that the FCC may have convinced the affiliates it would be unwise for them to stick their necks out on the indecency issue because they have other business issues before the commission.
FCC spokeswoman Tamara Lipper said she was unable to speculate about why affiliates had withdrawn their briefs. She declined to comment further.

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