Supremes will hear FCC indecency appeal


The Second Circuit Court of Appeals ruled that the FCC rules on indecent broadcast content are unconstitutionally vague and put the entire body of regulation in doubt. The Supreme Court has agreed to take the case on appeal by the Commission.

The specific issue has been the on-air utterance of so-called “fleeting expletives,” along with an incident in a scripted program that included a brief moment of partial nudity.

Broadcasters are held to standards that include avoidance of explicit content designed to shock or titillate during hours when children are likely to be in the audience. Those hours are 6AM-10PM. The FCC is authorized to issue fines of up to $325K for violations.

However, after the infamous Janet Jackson Super Bowl incident, then FCC Chairman Michael Powell overrode FCC policy on fleeting expletives, which are essentially slip-ups or unplanned and non-repetitive moments of profanity that traditionally had been dealt with via admonitions. Broadcasters objected that the new lack of tolerance combined with the possibility of six-figure fines makes all live programming risky and chills program content.

Further, the gray areas inherent in any kind of content regulation, and a long history of inconsistent enforcement of the rules, made them impossible to follow.

The FCC told the Supreme Court that the Second Circuit went too far in its recent ruling and threatened to completely eliminate its ability to keep objectionable content off of the airwaves during the 6AM-10PM time period.

The Court will take up the case in its next term, which begins in October.

NAB EVP Dennis Wharton commented, “NAB supports a constitutional review of the FCC’s enforcement of program content rules. As broadcasters, we will continue to offer programming that is reflective of the diverse communities we serve. Responsible programming decisions by network and local station executives, coupled with program blocking technologies like the V-chip and proper guidance of children by parents and caregivers, are far preferable to government regulation of program content.”