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4/29/2009 8:00 AM 

In yesterday's decision from the U.S. Supreme Court upholding the FCC's decision to fine broadcasters in several "fleeting expletive" incidents, Justice Antonin Scalia, who wrote the majority opinion, brought up the issue of new technologies that could help broadcasters prevent such utterances from going over the airwaves:

On p. 17 of the opinion, Scalia says:

"The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s stepped-up enforcement policy."

Later on, he rips into Justice Stephen Breyer, who wrote for the minority that:

JUSTICE BREYER looks over the vast field of particular factual scenarios unaddressed by the FCC’s 35-page Remand Order and finds one that is fatal: the plight of the small local broadcaster who cannot afford the new technology that enables the screening of live broadcasts for indecent utterances... The Commission has failed to address the fate of this unfortunate, who will, he believes, be subject to sanction.

 But one can easily debate the logic of the rest of Scalia's argument that follows:

We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood. Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,” and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event.” As for the programming that small stations receive on a network “feed”: This will be cleansed by the expensive technology small stations (by JUSTICE BREYER’s hypothesis) cannot afford.

The entire opinion can be downloaded here in .pdf: http://www.supremecourtus.gov/opinions/08pdf/07-582.pdf

We will be covering this in the May 27 issue of TV Technology with an article on what' technology is currently available to help broadcasters deal with this issue. 

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