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‘Fleeting’ radio and TV indecency rules finally get their day in court

Starting this Tuesday, the Supreme Court will finally begin hearing arguments in Case No. 10-1293, better known as Federal Communications Commission, et al v. Fox Television Stations, Inc., et al.  The case will revive a discussion, and hopefully start a process to determine, on what federal indecency restrictions should be placed on radio and television broadcasters.  While Janet Jackson’s infamous Super Bowl performance is certainly at the forefront of many of these discussions, this case will specifically look at the “fleeting expletives” uttered by Cher and Nicole Richie at the Fox-televised Billboard Music Awards in 2002 and 2003, respectively.

Interestingly, former FCC Chairman Michael Powell, who championed the enforcement of fines on broadcasters who aired fleeting expletives unbleeped, commented that he wouldn’t be so quick to discipline networks in today’s environment.  From

…[T]he FCC said in 2004 that it would begin punishing broadcasters for fleeting expletives — one-time utterances on live shows.

Powell said in an interview this week that he now regrets that vote, saying, “if I were voting again, I would have dissented.” He also questioned the logic behind singling out broadcasters for scrutiny at a time when cable and satellite television reach at least 85 percent of American homes.

“I’ve always been deeply troubled by the way the First Amendment changes when you change channels,” said Powell, now president of the National Cable & Telecommunications Association in Washington, which represents Fox Networks Group along with cable operators.

The Supreme Court case concerns incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F— ‘em. I still have a job and they don’t.” A year later, Richie said, “Have you ever tried to get cow s— out of a Prada purse? It’s not so f—ing simple.”

The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines. Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.

The case will also look at a scene involving brief nudity on a 2003 episode of “NYPD Blue.”

(Sidenote: Howard Stern famously challenged Michael Powell [link opens MP3 file] regarding his indecency rulings and fines on KGO’s “The Ron Owens Show.”  Although a bulk of the conversation concerns Stern’s questioning of Powell’s political credentials, it’s still an interesting listen on indecency enforcement nearly 8 years later, whether you’re pro- or anti-Stern.)

Of course, the upcoming ruling will also affect radio broadcasters, who are under essentially the same indecency guidelines as their television counterparts.  The Obama administration has stated in court that broadcasters should present a “relatively safe medium for…children.”  One hopes, however, that while this case looks at off-the-cuff profanity, the FCC will begin to move closer to specific guidelines so broadcasters can be certain what is, in fact, deemed indecent and what isn’t.

As stated in the Bloomberg article, a federal appeals court stated that the FCC indecency rulings were too inconsistent, and that broadcasters “are left to guess” what will be enforced by the FCC and what will pass without a fight.  Incidentally, this is the same issue that plagued the UK’s Ofcom, who announced in October 2011 that they “intend to publish guidance by the end of the year to clarify the rules in the broadcasting code.”  As far as I can tell, this year-end deadline has come and gone without further explanation of said rules.

As we being another all-important election year, I’m hopeful these cases will be addressed in a timely, yet through, fashion.  Then again, we’re still talking Cher saying the f-word, once, on live television almost ten years ago, so I’m not holding my breath.

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