With the Super Bowl soon to kick off in Houston, the New York Times just ran a story (here) recalling that during the last Super Bowl held in Houston, the notorious “wardrobe malfunction” occurred. The article highlighted the NFL’s concerns since then in picking halftime performers. To readers of this blog, that incident raises a whole host of other issues, as it triggered a re-examination of the FCC’s indecency rules which, 13 years after the incident, does not appear to have any end in sight. The Super Bowl incident, as well as various other instances of “fleeting expletives” that slipped out during TV awards shows, led to numerous FCC fines in the early 2000s, and a long string of court appeals thereafter. These court appeals culminated in a Supreme Court decision throwing out the FCC’s fines against broadcasters, not because the FCC did not have the authority to issue fines for indecent conduct, but instead because the FCC did not give adequate notice to stations as to what was permitted and what was prohibited as it had not adequately explain why it had decided to abandon its prior policy of just issuing admonitions to stations that had inadvertent fleeting indecency slip-ups.
After the Supreme Court’s decision almost 5 years ago, the FCC initiated a proceeding to re-examine its indecency rules which drew broad comment and much controversy (which we wrote about here and here). But no resolution to that proceeding has ever been reached (see our article here reacting to a Washington Post article asking what the current bounds of broadcast indecency are). In the last several years, but for one $325,000 fine for what the FCC believed to be an egregious violation of the rules, we have not seen much indecency enforcement out of the FCC. Will that change in the next administration? That is one question to which we don’t have the answer – as indecency is a notoriously difficult area in which to make rules. Limits are hard to define, and it is extremely sensitive politically to adopt positions relaxing any FCC enforcement. Perhaps it won’t be until the next wardrobe malfunction or the next egregious violation that we will see any further clarification of the FCC’s indecency rules.