FCC at Crossroads on Indecency Rules – Enforce or Risk Another ‘Nipplegate’?

The commission has shown little appetite for wading into the culture wars, but it may have no choice when it comes to the issue of profanity and nudity

The Federal Communications Commission has spent much of the Obama administration punting on indecency. But now, as a new chairman waits in the wings, broadcasters and advocacy groups are searching for signs about its future direction on the hot-button issue.

Already there have been indications that the FCC is flirting with relaxing standards and limiting its enforcement efforts to flagrant use of profanity or blatant displays of sexuality.

It just ended a request for comments from viewers and members of the broadcast industry in which it floated the idea that it would no longer fine programs featuring fleeting expletives or nudity.

And Tom Wheeler, the former telecommunications executive Obama appointed to take over for departed FCC Chairman Julius Genachowski, hinted during his confirmation hearings in Congress this week that he may take a laissez faire attitude when it comes to cracking down on blue language or content.

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Meanwhile, the FCC did not take a single enforcement action against a network-owned and operated affiliate for indecency or profanity during the first half of President Obama's tenure. During that time, the backlog of complaints swelled, prompting Genachowski (left) to instruct the agency’s enforcement bureau last fall to dismiss roughly a million of these objections, noting the statute of limitations had expired in certain instances.

Some say the commission doesn't have the stomach for a fight that escalated after Janet Jackson‘s Super Bowl nipple slip in 2004, when George W. Bush was president. But there's little question that some of the FCC's reticence has been a legal necessity. Litigation involving the commission’s ability to institute regulations governing broadcast television content has crawled through the court system.

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Indeed, legal and government experts question if the laws themselves are dated in today's media environment. They note that cable and other forms of mass-communication do not have to adhere to the same standards as broadcast TV.

“Broadcasting is this much diminished share of the public’s attention, and while its true that 30 years ago one could make a compelling case about the massive amount of time the public spent watching broadcast media that share is now going to a lot of other media, none of which are regulated in the same way as the broadcasting industry,” Harold Furchtgott-Roth a former FCC commissioner and senior fellow at the Hudson Institute, told TheWrap. 

“You’re setting one standard that doesn’t apply to cable, to the internet, to books and to magazines," he added. "At some point, you have to ask why do we have these profoundly different standards”

Parenting groups and conservative organizations are none too happy with the direction the FCC has taken and worry that the last five years could embolden broadcasters and shows like "Family Guy" to keep stretching the boundaries of what is permissible.

“The new chairman must enforce the law,” Dan Isett, director of public policy at the Parents Television Council, told TheWrap. “It’s not optional. Whether or not the new chairman likes the law or finds it distasteful, he doesn’t get to make that decision.”

"If people think TV is bad, just wait until the day when the FCC sanctions so-called 'isolated incidences' of nudity and profanity," Patrick Trueman, president of Morality in Media, said. "From that day on, the networks will be competing to push the envelope on indecency and nudity, as well as profanity, will be standard fare."

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For his part, Wheeler (right), formerly a cable and wireless industry lobbyist, admitted in his confirmation hearing that as a grandparent there were things on television that made him “grit his teeth,” but he noted that the courts have restricted the FCC’s past efforts to regulate obscene content.

"I do believe, however, that it is possible to call upon our better angels with some leadership," Wheeler said, giving comfort to some in the broadcast industry still reeling from the Bush-era’s Draconian approach to obscenity.

“He’s a guy who I suspect will use the bully pulpit to shame and scold others into raising standards not by regulation but by browbeating,” a television industry insider said.

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He may not have much choice. The courts have put the FCC in a tenuous position when it comes to policing the airwaves, with the Supreme Court itself faulting the commission for being “too vague" in its regulations.

In June, the high court overturned the FCC’s efforts to punch up indecency enforcement. The court ruled that the FCC hadn’t given broadcasters adequate notice in 2004 when it tried to broaden the definition of what represented a violation under then-FCC chairman Kevin Martin and increased fines tenfold to $325,000 per incident. The suit involved penalties brought against networks for on-air profanity uttered by singers like Bono and Cher at live events.

In a setback to broadcasters who had argued that indecency fines interfered with freedom of speech, the high court upheld the FCC’s authority to enforce decency standards, while ruling that it needed to better explain what those standards were.

“The court made it clear that the FCC has to provide adequate notice of what is indecent before it enforces any policy and that’s a  slippery slope,” Tom Davidson, an attorney and the head of Akin Gump’s national communication and information technology practice, told TheWrap. “That’s hard to articulate in a way that will have a wide-ranging impact on broadcasters unless the FCC wants to come up with dictionary of indecent words a la George Carlin.”

Broadcasters and viewers now have an opportunity to respond to comments submitted to the FCC on the issue. But the commission is under no obligation to act on the public’s suggestions in a set amount of time. It is conceivable that the commission will once again allow the issue to wither until another chairman or administration comes into power. 

Most analysts think that the commission will make some tentative steps to provide more clarity about rules and regulations while stopping short of the more zealous approach taken by the Bush-era chairs like Martin. After all, they have to reach some sort of a decision on the more than 5,000 pending indecency cases or risk holding up the license renewals of television channels across the country who will not be granted approval if there are outstanding complaints against them.

“The best bet is that the FCC will attempt to ratchet up enforcement standards to some degree, and it will be litigated by broadcasters, probably successfully,” Andrew Schwartzman, an attorney who has represented writers and directors in indecency cases, told TheWrap. “It may take a while, but the Supreme Court will have to address these standards.”

In a 1964 obscenity case, Supreme Court Justice Potter Stewart famously wrote that "hard-core pornography" was hard to define, but that "I know it when I see it."

Nearly five decades later, that kind of gut assessment about sex and swear words may no longer cut it.

For the Record: An earlier version of this article incorrectly identified the Parents Television Council as the Parent Television Council.