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The deadline for comments on the FCC’s indecency rules was extended until June 19, confirmed in a notice published in the Federal Register this past week. Given this extension, it is worth reviewing what the FCC proposed to do in this proceeding, as there is a significant amount of misinformation circulating in certain publications and in rumors floating around the Internet about the scope of the proceeding and the FCC’s intent in launching its inquiry. In preparation for a recent interview that I did with a talk show on a Midwestern radio station, I was pointed to articles that suggested that the FCC was proposing to allow swearing and nudity on broadcast television, and how that is eliciting tens of thousands of comments from the public (see, for instance the articles here and here). Some other articles and blog posts have gone further, making it sound like the FCC was looking to turn the broadcast airwaves into some sort of adult movie paradise, as if someone at the FCC had woken up one day and thought that such a relaxation of the rule would be a good idea.  While these claims make for interesting reading, the truth is much more boring, and demonstrate that the FCC has little choice but to ask for these comments.

As we wrote here, the FCC’s inquiry is initially limited – principally asking for comments on the FCC’s policy on fleeting expletives – those times, usually in a live broadcast, where a single profane word or phrase slips out onto the airwaves. The Commission also invited comments on other aspects of the rules but, other than the fleeting expletives (and a reference to fleeting, nonsexual nudity – like the bare butt that was the subject of the NYPD fine that caused the Commission much consternation in the Courts), that’s all that the Public Notice specifically addresses. While certainly more issues may arise, they arise in this context of dealing with these fleeting incidents, not as part of an attempt to turn broadcast TV into some X-rated video service.  And the issues are not being tackled as an attempt to corrupt public morality, but instead because the FCC has to clarify these rules after the Supreme Court found last summer that it had not adequately justified the more aggressive posture that it took on indecency in the last decade.Continue Reading June 19 Comment Date on Indecency Policies – What the FCC is Not Proposing to Do, No Matter What the Internet May Say

The FCC’s indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit – essentially finding that the FCC’s policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited.  After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.  The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue – resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.Continue Reading FCC Decides to Appeal Indency Cases to Supreme Court