Supreme Court case tests FCC’s power to police TV indecency

Daily News Article   —   Posted on January 10, 2012

*The Federal Communications Commission (FCC) is an independent agency of the U.S. government…with the majority of its commissioners appointed by the current President.  The FCC was established by the Communications Act of 1934…and is charged with regulating all non-federal government use of the radio spectrum (including radio and television broadcasting), and all interstate telecommunications (wire, satellite and cable) as well as all international communications that originate or terminate in the U.S.

(by Robert Barnes, WashingtonPost.com) LOS ANGELES – …The Supreme Court is set to hear arguments [today, Jan. 10] about whether the FCC should still have a role in policing the nation’s airwaves or whether its indecency regulations violate guarantees of free speech and due process.

The networks have argued successfully in lower courts that in a revolutionized world in which they exist “side by side” with cable channels that are beyond the FCC’s regulation,  singling them out is…unconstitutional.

“Today, broadcasting is neither uniquely pervasive nor uniquely accessible to children, yet broadcasters are still denied the same basic First Amendment freedoms as other media,” Washington lawyer Carter G. Phillips, who represents Fox [Broadcasting] and other networks, told the [Supreme] Court in a brief.

“To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other, fully protected sources [“protected” from government regulations on indecency],” he wrote.

The Obama administration is defending the FCC’s powers. If anything, it told the court, the new media world requires continued federal oversight of the public airwaves to provide a haven for parents and children from the anything-goes world of cable and the Internet.

“Generations of parents have relied on indecency regulation to safeguard broadcast television as a relatively safe medium for their children,” U.S. Solicitor General Donald B. Verrilli Jr. wrote in the government’s brief.

The “uniquely pervasive” language in Fox’s brief comes from the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, in which it upheld the [FCC’s] decision that an afternoon radio broadcast of comedian George Carlin’s 1973 monologue about words that could not be said on television violated indecency standards.

The court found that the FCC was within constitutional boundaries to police the radio and television airwaves during the times children would probably be listening, which was interpreted between 6 a.m. and 10 p.m.

Parents Television Council President Tim Winter said that even though nearly nine of 10 households have cable, broadcast channels remain paramount [predominant; number one]: The [majority] of the country’s most watched shows reside there, commanding the most money from advertisers and bringing the highest salaries to the stars and producers.

With the right to the public airwaves, Winter said, come responsibilities.

“If they want to be indecent, as we’ve said in the past, they can wait until 10 o’clock and be as indecent as they want,” Winter said.

…………………….

The cases before the Supreme Court concern the FCC’s role in policing the airwaves for material that describes or depicts “sexual or excretory organs or activities” and is “patently offensive as measured by contemporary community standards for the broadcast medium.”

After Fox broadcast award shows in which Cher and Nicole Richie [used expletives], the FCC announced in 2004 that it was changing its policy so that even one-time utterances of profanity could be penalized.

The Supreme Court ruled 5 to 4 in 2009 that the agency was within its rights as a matter of administrative law to change its policy to protect the public against what Justice Antonin Scalia called “foul-mouthed glitteratae from Hollywood.”

But justices sent the case back to the U.S. Court of Appeals for the 2nd Circuit in New York to determine whether there were constitutional problems with the [FCC’s] actions.

That court agreed that there were. It said the [FCC’s] context-heavy determinations about indecency mean that broadcasters “are left to guess” when profanity and nudity might be deemed appropriate or punishable.

For example, the FCC allowed the profanity in an ABC broadcast of the movie “Saving Private Ryan” but disallowed some of the same words in a PBS documentary on blues singers.

So the Fox profanity cases are back at the Supreme Court, along with ABC’s challenge of an FCC decision that a seven-second camera pan of an actress’s bare [bottom] in a 2003 episode of “NYPD Blue” violated the indecency standards. That resulted in a $1.2 million fine for 40 ABC affiliates that aired the show (including a Texas station owned by a subsidiary of The Washington Post Co.).

The court’s deliberations this time will focus on whether the FCC’s indecency regulations violate the First Amendment and the Fifth Amendment’s guarantee of due process.

In the 2009 case, Justice Clarence Thomas voted with the majority but said the court should reexamine the [1978] Pacifica decision. “Traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were,” he wrote.

And Justice Ruth Bader Ginsburg, in dissent, said that when the court considers constitutional questions, “we should be mindful that words unpalatable to some may be commonplace for others.”

In their briefs, the networks say worries about what they will show if the FCC’s regulations are struck down are overblown. They are free to show whatever they want after 10 p.m., and it is not comparable with what is on cable, they say.

Winter said the networks “know they would not win in the court of public opinion,” but he is not as confident about the high court.

“The amount of content that used to be considered too much for broadcast is now ubiquitous [common; frequent],” he said. “They are editing into shows the harshest profanities with bleeps. What will happen is that those bleeps will go away.”

The cases are FCC v. Fox Television Stations and FCC v. ABC.

Copyright 2011 The Washington Post.  Reprinted from the Washington Post for educational purposes only.  Visit the website at washingtonpost.com.