With Indecency Appeal Likely, FCC May Start Rulemaking
The FCC probably will appeal to the Supreme Court its legal defeat over a policy of censuring broadcasters for airing one unintentional curse word during a show (CD July 14 p1), veteran industry lawyers and executives predicted. Many of them, and others we surveyed, also think the commission will at around the same time re-examine through a rulemaking what’s called the fleeting expletives policy. Career staffers continue to sort through filings against stations airing Fox programming over a Jan. 3 episode of American Dad, matching viewers’ complaints with the broadcasters in their markets, commission and industry officials said.
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A result of the FCC’s appeals court defeat is that the backlog of at least 1.4 million complaints (CD June 18 p9) is growing, and quick action to whittle it down is unlikely, commission and industry officials said. “There are going to be a million and a half complaints pending for a while,” said broadcast lawyer John Crigler of Garvey Schubert, who has worked on other indecency cases. He and others said the FCC may not decide whether to appeal until the 3rd U.S. Circuit Court of Appeals in Philadelphia decides whether the commission had authority to fine CBS $550,000 for Janet Jackson’s breast-baring during the 2004 Super Bowl halftime show. “I'm not expecting very much to happen until we hear from the 3rd Circuit, and I think that’s why most lawyers are telling their clients not to go hog wild yet” and start airing sexually explicit material, Crigler said. “It’s a little too early to celebrate."
A rulemaking and appeal is favored by Commissioner Michael Copps, as he signaled in criticizing the ruling on Fox v. FCC by a three-judge panel on the 2nd U.S. Circuit Court of Appeals in New York (CD July 15 p16), commission and industry officials agreed. “Everyone would benefit from some clarity here” through a rulemaking, said Policy Director Dan Isett of Parents Television Council, whose members filed complaints against the Billboard Music Award shows in 2002 and 2003 that were the subject of the court case. The high court could consider a consolidated CBS and Fox case, he said: Once the 3rd Circuit decides, “there is too much at stake for the court to remain silent on.” Chairman Julius Genachowski and aides would need to devote considerable attention to pursuing a rulemaking, which he may not want to do given his broadband priorities, commission and industry officials speculated.
A dual approach to indecency would give the commission a backstop while pursuing an appeal, by examining a new policy, perhaps a return to the past when stations were fined for only repetitive use of swear words or showing nudity. The Supreme Court last year sent the Fox case back to the 2nd Circuit on administrative grounds, in a victory for the commission, so the high court probably would agree to hear oral argument on the lower court’s ruling on constitutional grounds, indecency experts agreed. The risk is that the court could decide that its 1978 Pacifica ruling no longer applies to broadcasters, removing indecency entirely from the commission’s authority. Some in industry said they'd like to see that. “The notion that because of this court decision broadcasters are going to be dropping F-bombs in prime time is just silly,” an NAB spokesman said. “We could do that now if we wanted to after 10 p.m. and you don’t see that happening on Letterman or Leno or uncut Hollywood movies or naked women cavorting on-screen."
No conclusion about what the FCC should do has been drawn by the Office of General Counsel (OGC), which is considering legal responses, and the Enforcement Bureau, which deals with indecency complaints, commission officials said. Some commissioners have received briefings from OGC officials on the case, but the office hasn’t indicated which tack it thinks best, officials said. The bureau continues considering what do to in light of the 2nd Circuit opinion and is working with other offices to figure out the next steps, a spokesman said.
"I think they haven’t made up their mind, because it’s a big issue,” said George Washington University Professor Jerome Barron, who teaches constitutional law and has written about indecency: “They may be afraid of an appeal because an appeal may mean everything is thrown out.” A rulemaking could mean that the FCC would return to enforcement of previous rules on indecency, he said, and an appeal to the full 2nd Circuit is a possibility. A request to appeal is due within 90 days after the 2nd Circuit’s ruling July 13, said Senior Vice President Andrew Schwartzman of the Media Access Project, representing artists siding with Fox in that case. The solicitor general, the official who would seek the appeal, can request more time, and the high court usually grants such requests, other lawyers said.
There was a move afoot to reduce the FCC indecency backlog at the bureau by dismissing filings against pay-TV programming or broadcast programs shown late at night or early in the morning, when indecency rules don’t apply, commission officials said. That approach seems to have been put aside for now, and the commission seems unlikely to issue additional fines or dismiss pending cases, commission and industry officials said. That could extend to the American Dad show, and the bureau may not propose to impose fines over the program even after matching complaints against it to local stations, they said.