June 21, 2012

Broadcasters won a narrow victory over the Federal Communications Commission today, but the U.S. Supreme Court did nothing to clear up which expletives are or are not allowed over the air. The court ruled in a case called FCC V. Fox Television Stations, but it avoided the key questions about what power the government should have to ban certain words or images from the airwaves.

This case wasn’t about expletives in news broadcasts, and the FCC has tried to assure journalists that they’re not the target of its indecency rules. But broadcasters have been worried because the agency has changed its mind before.

The FCC had cited Fox and ABC for three incidents that happened on the air. In two cases Fox aired live expletives that were uttered on awards shows; in the third case ABC aired video of a nude female’s buttocks for seven seconds on the show “NYPD Blue.”

The FCC issued new standards after these incidents aired; the court said it can’t apply those standards to incidents that occurred before the rules were in place. The court did nothing, however, to inform broadcasters what should be allowed.

The FCC wants to ban so-called “fleeting expletives,” things that an athlete may say in a live locker-room interview or a passerby might say in a live broadcast. A fleeting expletive is different from a planned event like a swear word in a movie or even ABC’s image of a naked behind.

Broadcasters argued in briefs that they might stop airing live broadcasts if the FCC enforced the “fleeting” rule, aimed at unplanned expletives uttered just once.

They have been especially frustrated that the FCC would not tell them in advance whether they’d get in trouble for airing something, such as when they asked about airing “Saving Private Ryan.”

Dennis Wharton, executive vice president of communications for the National Association of Broadcasters, responded to the court’s ruling:

NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content. … We don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers.

As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children.

The court offered no guidance on what would happen if another actor were to swear on live TV, which is what Nicole Richie and Cher did on the Fox awards shows, and what Bono did in another incident.

While the FCC’s rules are in question, as they are now, it seems unlikely that the agency will take on any further enforcement actions.

Networks, television stations and professional organizations like the Radio and Television Digital News Association (RTDNA) and the NAB all filed friend-of-the-court briefs in the case, asking for clarity and guidance. They also said that imposing a video/audio delay system on broadcasters would be too costly to install and monitor.

Moreover, the broadcasters said they were confused by FCC rules that appear to allow, for example, the “F word” to be uttered during an airing of “Saving Private Ryan” but not in a comedy show.

Consider, for example, whether this video would be allowable under the FCC rules. It is the U.S. Second Circuit Court of Appeals hearing on the case, aired by C-SPAN. The judges use words in the courtroom that the FCC would consider to be at least indecent, if not obscene. Indecency rules, enforced against broadcasters for decades, have applied only between the hours of 6 a.m. and 10 p.m. So if the FCC’s standards applied to this court hearing, it could only air after 10 p.m. and before 6 a.m., not as a daytime news program on an over-the-air station.

Background resources

The SCOTUS Blog, which tracks cases step-by-step

Amicus Briefs in Support of the FCC Enforcement:

Merit Briefs for the Respondents:

Amicus Briefs in Support of the Respondents

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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