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Originally featured on BroadcastEngineering.com
Jun 21

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6/21/2012 10:10 AM  RssIcon

The U.S. Supreme Court has overturned a lower court decision that the FCC’s enforcement of its indecency rules was unconstitutional. The high court, however, did find that the commission failed to give ABC and Fox “fair warning” that they could be fined for so-called “fleeting expletives” and nudity.

The Supreme Court disappointed broadcasters, many of whom had hoped it would strip the FCC of its right to police content on the radio and television airwaves.

“NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content,” said Dennis Wharton, the NAB’s spokesman. “We don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers.

The U.S. Supreme Court has overturned a lower court decision but did find that the FCC failed to give ABC and Fox “fair warning” that they could be fined for so-called “fleeting expletives” and nudity.

“As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children,” he said.

Wharton noted that indecency rules are enforced against broadcasters only between the hours of 6 a.m. and 10 p.m. and suggested the practical impact of a Supreme Court decision may be less dramatic than it may first appear.

The decision came from challenges to the FCC’s indecency rules by Fox and ABC. Broadcasters have long argued the FCC’s rules are vague and unconstitutional. However, the court refused to address whether the rules and the enforcement of them is unconstitutional. It only decided the “fair warning” question of whether broadcasters were warned about “fleeting expletives” and nudity.

“Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague,” wrote Justice Anthony Kennedy.

He added, however, “because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy.”

ABC’s case resulted from a $1.4 million FCC fine for a 2003 episode of "NYPD Blue," a police drama. In that show the buttocks of actress Charlotte Ross was visible to viewers. ABC challenged the fine and the U.S. 2nd Circuit Court of Appeals in New York threw it out.

Fox’s battle emerged from incidents in 2002 and 2003, when Cher and Nicole Richie used profanity during live awards shows. Following the incidents, the FCC ruled that Fox could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. The 2nd Circuit also ruled for the network.

The FCC appealed both rulings to the high court, where the cases were combined.

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