Broadcaster Fines for Indecency Seen Easing as U.S. High Court Takes Case
Broadcasters’ Indecency Threat May Ease on High Court Review
At the 2002 Billboard Music Awards, Cher referred to critics of her work by saying, “F-- ‘em. I still have a job and they don’t.” Photo: Kevin Winter/FOX/Getty Images.
At the 2002 Billboard Music Awards, Cher referred to critics of her work by saying, “F-- ‘em. I still have a job and they don’t.” Photo: Kevin Winter/FOX/Getty Images.
Broadcasters' Indecency Threat
Michael Ginsberg/ABC via Getty Images
Dennis Franz, left, and Jimmy Smits investigate the murder of two roommates in "NYPD Blue."
Dennis Franz, left, and Jimmy Smits investigate the murder of two roommates in "NYPD Blue." Photographer: Michael Ginsberg/ABC via Getty Images
The U.S. Supreme Court may loosen or eliminate restrictions on indecent broadcasts as it decides if regulators improperly penalized News Corp. (NWSA)’s Fox and Walt Disney Co. (DIS)’s ABC for shows involving foul language and nudity.
The justices yesterday said they will consider whether the Federal Communications Commission’s indecency policy, which calls for fines of up to $325,000, violates First Amendment guarantees of free speech. The case stems from expletives uttered on two Fox network award shows and from a scene with a naked woman on ABC’s “NYPD Blue.”
“The commission’s ability to continue to regulate in this area at all is clearly on the line,” Harry Cole, an Arlington, Virginia-based broadcast lawyer with Fletcher, Heald & Hildreth, said in an interview. The case calls into question “the FCC’s ability to regulate indecency -- that is, dirty language -- on any broadcast station, TV or radio” as well as nudity, Cole said.
In another free-speech case, the court yesterday struck down a California law prohibiting sales of violent video games to minors. On a 7-2 vote the justices rejected the state’s contention that violent games are akin to sexual materials, which the government can restrict to protect children.
Parents Television Council, which lobbies against what the group considers to be indecent programming, is glad the Supreme Court took up the FCC case because it may correct “woefully misguided” lower-court rulings, Tim Winter, president of the Los Angeles-based group, said in an interview.
FCC Backlog
Affirmation of the FCC’s position by the high court could clear the way for the agency to consider more than 1 million indecency complaints lodged in recent years and not acted upon as courts consider the law, Winter said.
A backlog of broadcast indecency complaints had reached 1.4 million before “a portion” were dismissed for having been “defective on their face,” FCC Commissioner Robert McDowell, a Republican on the Democrat-led body, told Congress on May 13.
The Supreme Court review follows an appeals court ruling that the FCC’s indecency policy was unconstitutionally vague. The FCC wants the court to affirm its “exercise of its statutory responsibility to protect children and families,” Neil Grace, an FCC spokesman, said in an e-mail yesterday.
News Corp. (NWS)’s Fox and Walt Disney Co.’s ABC say the court should overturn decades-old rulings that give the FCC more authority to regulate programming on broadcast stations than on cable or satellite networks.
First Amendment
“We are hopeful that the court will ultimately agree that the FCC’s indecency enforcement practices trample on the First Amendment rights of broadcasters,” Scott Grogin, a Fox spokesman, said in an interview.
“The FCC’s current indecency enforcement policies are unconstitutional” and the episode of NYPD Blue was not indecent, Julie Hoover, a spokeswoman for ABC, said in an interview.
The National Association of Broadcasters “supports a constitutional review” of the FCC’s rules, Dennis Wharton, a spokesman for the Washington-based trade group, said in an e- mail. Members include ABC, Fox, Comcast Corp. (CMCSA)’s NBC and CBS Corp. (CBS)’s CBS network.
“Responsible programming decisions” and technologies such as the violence-blocking V-chip in TV sets “are far preferable to government regulation of program content,” said Wharton.
The justices will consider the FCC case in the term that starts in October.
Seven Dirty Words
One of the Supreme Court rulings under attack is a 1978 decision that said the FCC could take action against a radio station for airing comedian George Carlin’s “Seven Dirty Words” monologue during the afternoon. The court said FCC regulation was warranted because broadcast television and radio had a “uniquely pervasive presence in the lives of all Americans” and were “uniquely accessible to children.”
The case centers on First Amendment issues that the high court opted not to resolve when it temporarily revived the FCC’s anti-expletive policy in a 2009 ruling. Justices in both the majority and dissent in that case pointed to free-speech concerns about the crackdown.
The 2009 decision stemmed from an agency crackdown on broadcasters after celebrities used vulgar language on three live awards shows in 2002 and 2003. Regulators said in 2004 that for the first time they would punish broadcasters for so-called fleeting expletives.
Nicole Richie
Two of the incidents involved Fox. In one, at the 2002 Billboard Music Awards, Cher referred to critics of her work by saying, “F--- ‘em. I still have a job and they don’t.”
Nicole Richie used expletives as a presenter on the same show a year later. “Have you ever tried to get cow s--- out of a Prada purse?” she said. “It’s not so f---ing simple.”
The FCC concluded that the broadcasts violated its indecency regulations, though the agency said it wouldn’t impose a fine because the incidents took place before the change in policy. Federal law lets the FCC impose fines of $325,000 on each station that airs indecent material between 6 a.m. and 10 p.m.
The 2nd U.S. Circuit Court of Appeals in New York said last year that the FCC had been inconsistent in the way it applied its rules. The panel pointed to the FCC’s decision not to take action over ABC’s airing of “Saving Private Ryan,” a movie that repeatedly uses the same words.
In the “NYPD Blue” case, the FCC is attempting to impose penalties totaling $1.2 million on more than 40 ABC-affiliated stations. The disputed episode showed a woman’s buttocks while she was in the bathroom and then, when a young boy inadvertently walked in, a frontal view as she covered her breasts and pubic area.
The 2nd Circuit voided the ABC fine in a separate ruling in January.
The case is Federal Communications Commission v. Fox Television Stations, 10-1293.
To contact the reporters on this story: Todd Shields in Washington at tshields3@bloomberg.net; Greg Stohr in Washington at gstohr@bloomberg.net
To contact the editors responsible for this story: Allan Holmes at aholmes25@bloomberg.net; Mark Silva at msilva34@bloomberg.net
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