A new twist of uncertain significance unfolded in broadcasting’s indecency saga last week, when a federal appeals court in New York gave the FCC an additional 60 days to reconsider earlier rulings on four cases involving curse words on TV.
While the commission reviews its decisions, the court ordered, their enforcement will be stayed.
Part of the FCC’s indecency crackdown, the four decisions in March — appealed by the ABC, CBS, NBC and Fox networks — are based on its 2004 Golden Globes ruling. The commission said it would no longer excuse “fleeting” curse words, as it had for years. It found that any broadcast of “fuck,” and by extension “shit,” was presumptively indecent.
The broadcasters cited in the four cases were not penalized for rough language in NYPD Blue, The Early Show and other programs because the shows at issue actually aired before the FCC issued the Golden Globes decree. The networks appealed anyway, saying the commission had exceeded its authority.
It is unclear whether last week’s court-ordered stay applies only to the cases at issue or to other cases as well. (The commission took a narrow view, but others involved in the case read the order as a broader suspension of the Golden Globes standard.)
Whatever its meaning, the ruling may signal a shift favoring broadcasters in a regulatory face-off that even one of the FCC’s own commissioners suggested has become untenable.
“You don’t grant a stay if you don’t find some merit in the appeal,” says Andrew Schwartzman, president of Media Access Project. The nonprofit telecomm law firm joined the broadcasters’ side on behalf of the Center for Creative Voices in Media.
With broadcasters finally taking the commission to court on past indecency decisions, everything from the protocols and fines to the FCC’s powers to enforce decency in broadcasting could be up for review.
The upshot: After declining to review its controversial crackdown, the FCC may have to defend it in court, where almost anything could happen.
“It’s really a roll of the dice when you go in front of a court with a difficult case like we’ve made for ourselves,” FCC Commissioner Jonathan Adelstein told Terry Gross last week on Fresh Air. “If we’re overturned by the court, we don’t know what the implications could be. It’s very possible that they could constrain our authorities in ways that are broader than we currently envision. So it’s a dangerous thing.”
Observers don’t expect the networks to back down. Broadcasters think it’s unfair for the FCC to single them out for penalties when it doesn’t try to regulate cable or satellite TV channels. They say the new maximum fine of $325,000 has chilled constitutionally protected speech and seem eager to plead their cases.
In addition to the dirty words cases in the New York court, CBS is appealing its fine for the infamous Janet Jackson Super Bowl halftime exposure in the 3rd Circuit Court in Philadelphia later this month.
“A tipping point is imminent in the sense that the FCC’s indecency fines, and its indecency standard, are being subjected to judicial scrutiny,” says John Crigler, a First Amendment attorney with the firm of Garvey Schubert Barer. “The fact that broadcasters are getting their day in court has given them some courage.”
What does this all mean for public broadcasters? Schwartzman says the stay in the New York ruling suggests the court “may be having a hard time with the Golden Globes standard,” and that may bode well for San Mateo pubTV station KCSM, which was fined for a too-early broadcast of rough language in The Blues.
NPR may also benefit indirectly if the commission eases up (or is forced to do so) on fleeting dirty words. The FCC received complaints about the radio net’s July broadcast of President Bush saying “shit” during a chat with British PM Tony Blair. (Adelstein said the incident could make a good test case for the commission.)
FCC-watchers are still speculating about what the commission will do next year, when Ken Burns’ occasionally salty World War II doc The War is slated to air.
“Is that going to be judged based on the Blues standard or the Saving Private Ryan standard?” wonders Jonathan Rintels, executive director of the Center for Creative Voices in Media. The Steven Spielberg war film aired unedited in 2004 without penalty.
Last month, PBS backed off an earlier self-defense edict that producers pixelate cursing mouths in addition to bleeping bad words. That precaution no longer seemed necessary in light of more recent FCC rulings, spokeswoman Lea Sloan said. But PBS is still preaching caution, especially in light of the steep fine levels.
The network and other public TV leaders last month filed a brief supporting KCSM and urging that the commission defer to broadcasters’ editorial judgment. Margaret Tobey, communications attorney with Washington’s Morrison & Foerster LLP who crafted KCSM’s appeal, pro bono, likes the station’s chances. “But we’re committed to taking this to the court of appeals if it comes to that,” she says.
One thing seems certain: The issue isn’t going away anytime soon and no edgy program is safe from complaint.
This week, many CBS affiliates plan to air unedited versions of the documentary 9/11, which includes onlookers cursing as the towers collapse, to commemorate the fifth anniversary of the terrorist attacks. The American Family Association has already pledged to bombard the FCC with complaints.
posted Sept. 21, 2006
Copyright 2006 by Current Publishing Committee