FCC Will Examine Potential Changes to Broadcast Indecency Regulation

Janet Jackson Justin Timberlake Wardrobe Malfunction - P 2011
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Janet Jackson Justin Timberlake Wardrobe Malfunction - P 2011

As President Barack Obama prepares to tap a successor to Federal Communications Commission Chairman Julius Genachowski, the agency is adventurously investigating potential big changes to its regulation of indecency on broadcast airwaves.

According to an advance copy of a document set to be published on Friday in the Federal Register, the FCC's Enforcement Bureau and the Office of General Counsel is seeking comments on whether it should maintain current protocol or change with the times on issues including isolated expletives on TV and fleeting instances of non-sexual nudity.

The call for comments will surely invite attention from broadcasters who have fought several high-profile legal battles in recent years.

Broadcasters believe that it's time for a change.

In 1978, in FCC vs. Pacifica Foundation, the Supreme Court took a look at comedian George Carlin's famous monologue, "Seven Words You Can Never Say On Television" and considered the government's role in regulating indecency over the public airwaves. Supreme Court Justice John Paul Stevens upheld the FCC's authority while preaching some vague restraint. "We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene," he wrote.

In the 1990s, the FCC became more relaxed on the indecency policing front, but then George W. Bush took office and Janet Jackson's breast was bared during a "wardrobe malfunction" at the Super Bowl. The FCC warned Fox over expletives uttered by Cher and Nicole Richie at the Golden Globes, and also fined ABC for fleeting nudity on the drama NYPD Blue.

Fox and other broadcasters then filed a lawsuit against the FCC for imposing rules that were "arbitrary and capricious."

The litigation danced up and down the appeals courts, heard by the Supreme Court twice.

In 2009, U.S. Supreme Court Justice Antonin Scalia upheld the FCC's ban on fleeting indecency, speaking about “foul-mouthed glitteratae from Hollywood,” but declining to issue a broad ruling on the First Amendment challenges brought by broadcasters.

After being remanded down to the 2nd Circuit, the judges there hinted that it was time for a change. "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus," wrote Circuit Judge Rosemary Pooler in 2010.

Then last year, writing for the majority, Justice Anthony Kennedy disappointed many broadcasters by not overturning Pacifica on constitutional grounds, but handed them a more narrow win anyway, saying that the FCC indecency enforcement was "vague" and had violated broadcasters' due process rights by not providing "fair notice" of clear rules.

The FCC says it has now reduced its backlog of broadcast indecency complaints by 70 percent -- more than one million complaints in total. Now, the agency is considering what to do going forward.

According to a summary of its comment-seeking:

"The Federal Communications Commission Enforcement Bureau and Office of General Counsel seek comment on whether the full Commission should make changes to its current broadcast indecency policies or maintain them as they are. For example, should the Commission treat isolated expletives in a manner consistent with its decision in Pacifica Foundation, Inc., or instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the 'Golden Globe Awards' Program? As another example, should the Commission treat isolated (non-sexual) nudity the same as or or differently than isolated expletives."

Written comments are being taken for the next 30 days. Reply comments can be filed for the next 60 days. Here's further information.

Email: eriq.gardner@thr.com; Twitter: @eriqgardner