Broadcasters and the government squared off last week over the constitutionality of the FCC's indecency enforcement regime. It was the first time the High Court has agreed to weigh in on the constitutionality of indecency regs for broadcasters since George Carlin cursed his way into the regulatory record books in the Pacifica case in 1978.
The high court has already held that a ban on indecent cable speech is unconstitutional-in the so-called Playboy case-and threw out an Internet decency law, but broadcasters remain subject to FCC content calls in an age of increasingly seamless video delivery over multiplatforms that the viewer will be ever more hard-pressed to distinguish between.
At stake is what local TV stations can say and show on the airwaves alongside their unregulated digital competitors, as well as over $1 million in fines against ABC stations, and station license renewals-some 300-plus by ABC's lawyers' count-and station deals that have either been held up or conditioned thanks to such complaints.
In last week's oral argument, held beneath neoclassical friezes featuring naked buttocks and breasts-a point ABC attorney Seth Waxman made to the Justices-the court appeared both reluctant to cut broadcasters loose from the FCC's indecency enforcement regime entirely, yet also suspicious of the kind of content calls the commission was justifying. Among them: fining ABC stations for seven seconds of partial nudity for NYPD Blue after previously finding over 40 seconds of nudity, including full frontal, in Catch-22 to be not indecent. Justice Ruth Bader Ginsburg said that had the appearance of arbitrariness, while Justice Elena Kagan suggested that by the FCC's reckoning, the only person who could swear was Stephen Speilberg, a reference to the pass the FCC gave to the language in Saving Private Ryan.
At issue are the Second Circuit Court of Appeals decision in cases involving fleeting profanity on Fox awards shows, and scripted nudity-Charlotte Ross' naked backside on former ABC drama NYPD Blue. Ironically, the Janet Jackson Super Bowl halftime reveal that is the highest-profile FCC indecency call of all is not the subject of the review, since the Third Circuit had not rendered a verdict when the Supreme Court review was sought.
Whatever the court decides will obviously have bearing on that latter case and its $550,000 fine since it involved the FCC's decision to pursue "fleeting" nudity after years of not doing so.
Justice Sonia Sotomayor did not participate in the decision to hear the case, and won't help decide it. She is a former Judge on the Second Circuit Court of appeals, though she was not on the panels that decided either case.
Her absence means that broadcasters only have to convince four justices, not five. A split decision would leave the lower court decisions in place. Those decisions were that the FCC's indecency finding against Fox stations' awards show swearing and indecency fines for ABC stations for Charlotte Ross' naked backside were unconstitutionally vague and chilling.
That, however, would free the FCC to try to come up with new regs that were constitutional, meaning the backlog of complaints would not necessarily be cleared up. Ironically, the complaints will likely be addressed faster if the broadcasters lose, since the FCC could proceed under the current standard.
Broadcasters say they aren't looking for license to go wild on-air, and the National Association of Broadcasters isn't even looking to get out from under indecency regs. But given the rise of over-the-top video and the competition from cable and satellite, broadcasters would benefit from having the chill taken off their content.
In the wake of the FCC crackdown on fleeting nudity in the Super Bowl reveal, for example, NBC nixed a scene in an episode of ER after some affiliates, particularly in the South, were concerned that it showed a fleeting glimpse of a portion of the breast of an 80-year-old woman getting emergency care. Some noncommercial stations deleted language from "Prime Suspect" on Masterpiece Theater (and were criticized by viewers) and even had to consider whether to edit out a nude lithograph from Antiques Roadshow, even though the show had aired months before with no complaint.
Andrew Schwartzman, who represented TV writers, producers and directors supporting Fox and ABC, said it was clear last week that the Justices had concerns about getting rid of the FCC's safe harbor altogether and freeing broadcasters to be as indecent as print or cable or the Internet. But the issue is not only about First Amendment freedom, it is also about money and business.
One broadcast executive with an interest in the outcome speaking on background last week pointed to the station licenses that have not been granted pending resolution of what is, by various accounts, well over a million indecency complaints in the FCC pipeline, as well as the deals involving stations cited in some of those indecency complaints that were conditioned on the buyer waiving the five-year statute of limitations on those complaints.
"We were told in the past, under the previous FCC administration, that if we did not toll indefinitely the statute of limitations our deals would not get done," said the executive. "Even though the statute of limitations is five years, we had to waive that indefinitely to get the deal done."
A veteran broadcast attorney who has argued indecency cases agreed that there have been bottom-line consequences beyond not being able to match cable cuss for cuss. He said that some clients selling stations subject to pending complaints have had to put a portion of the proceeds in escrow to cover a fine, should one eventually be levied.
"These things make buyers nervous," he said, because what buyers like to get is totally unencumbered assets. It comes out of the seller's hide, but any encumbrance makes buyers and creditors skittish. The license will be granted, but there's a cloud.
At last week's oral argument, Justice Kennedy suggested that broadcasters were arguing for the ability of celebs, or wannabe celebs, to curse on-air with impunity.
Both Schwartzman and the veteran attorney say they are concerned the court could lose sight of the fact that the rules affect the little guys. "It is too easy to conclude that this is just about potty-mouthed celebs and ‘who cares,'" said the attorney.
Schwartzman agrees. "As awful as it is, a $375,000 fine is something that Viacom or Fox can manage, unhappily. But these fines are bigger than the budgets at a lot of these stations."
The Supremes will likely decide the case by the end of June, but broadcasters may still not get that vaunted regulatory certainty. "You could get a one-sentence opinion from a 4-4 court affirming the second circuit," says Schwartzman. "Then, presumably, the FCC would issue new guidelines and a new case will be brought that Justice Sotomayor could participate in."
But Schwartzman adds it is tough to predict just how the court will rule. "If ever the ‘it depends' principle applies, it is on this one. It is an absolute black hole for everybody involved."
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