The habit by the FCC of gratuitously fining various US TV networks whenever anyone used a swearword on prime time TV has backfired and been squashed by a US Appeals Court.
The decision, if it is allowed to stand or if is upheld by the Supreme Court on further appeal, will likely lead to a huge repayment of fines from the FCC back to broadcasters, and will go some way to reverse the blind panic of broadcasters who felt they just had to cut virtually every curse out of US broadcast TV, despite the fact that cable and satellite, where people opt to receive the channels through a positive payment, were allowed to carry such content.
The FCC has also, for the past two years, deliberately failed to clarify its policy, saying that the networks should be able to tell what’s decent and what isn’t and leveling spot fines. One such fine led to shock jock Howard Stern being fired and deserting from terrestrial radio to paid satellite radio, taking millions of fans with him, helping to desecrate US radio, while others have involved movie and music stars uttering expletives merely for emphasis at live awards events. Indecency fines went to another level when Janet Jackson allowed her breast to fall out of her garments during a superbowl celebration.
Many networks had taken to showing live events about 10 seconds behind real time in order to be given the chance to ‘bleep’ out expletives.
The court told the FCC that is was out of touch with reality and that these expletives not genuine references to sex or to toilet habits, while the FCC chairman responded that it was in fact the court that was out of touch. By publicly doing so on the FCC web site, Kevin Martin the FCC chair risks contempt of court. He said that he may appeal the decision to a full court of Appeals or take it to the supreme court.
We think that it’s unlikely that the FCC will in fact appeal, because it has so much more to lose. This case was about what is known as ‘fleeting expletives,’ or blurted obscenities, and by not challenging the decision, the FCC may retain its ability to fine TV stations for more considered acts.
The decision came from a suit brought by Fox, CBS, NBC and ABC it was the first decision that has gone against the current administration. Many observers felt that the Bush administration used its influence to see anti-Bush sentiment punished by so called indecency fines, an opinion voiced in the New York Times last year.
The Appeal judges sent the case back to the commission telling it to rewrite its indecency policy. Martin said in his statement that ‘Hollywood will be able to say anything they want, whenever they want.’ Surely that’s what free speech is about?
The Bush administration policy change on indecency has also been seen as a nod to the Christian revival in the US, largely based in the mid-west, and is perhaps little more than a vote catcher, as it was a reversal of decades of relaxation in the indecency laws.
The court also said, ‘We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster. We question whether the FCC’s indecency test can survive First Amendment scrutiny.’
The FCC also pointed in one of its responses to what it said was a potential solution to the issue, by getting Congress to enact laws that mean that parents can block certain channels coming into their homes, implementing the legislation required to offer ‘a la carte’ channel selection.