While the over-the-air broadcast industry continues to be bound by vague Indecency Rules monitored and enforced by the FCC, which a federal court has found unconstitutional, the cable industry continues to enjoy the freedom of speech provisions that allow it to distribute pretty much whatever it deems “acceptable.” The justification for the disparity has always been made that terrestrial broadcasters were loaned the wireless spectrum they use to send out its signals for free, while cable has built and paid for its own private wired networks to accommodate its paying subscribers.
While the Supreme Court did not address the First Amendment issue of whether the FCC can constitutionally prohibit fleeting expletives and momentary nudity, it did find that the FCC's enforcement of those policies with regard to these particular shows violated due process, because the networks had no advance notice of them. (by now we all know about the infamous Superbowl XXXVIII “wardrobe malfunction” on CBS in 2004, the 2002 and 2003 Billboard Music Awards shows televised by Fox and a 2003 episode of “NYPD Blue” televised by ABC. In 2010, Texas congressman Joe Barton, then chairman of the U.S. House Energy and Commerce Committee, held talks to discuss the possibility of the extending the federal indecency rules to the cable television industry, but it never really went anywhere.
It’s not that the cable industry is flagrantly flouting the rules. In fact it sometimes polices itself, especially during live events like yesterday’s “121212” concert, from Madison Square Garden in new York, with proceeds going to help survivors of the recent Hurricane Sandy devastation. Carried live on the MSG Network, the concert featured a litany of “A” list stars and the potential for profanity to occur at any moment. And it did, several times.
The problem with the live 121212 broadcast was that the technology to protect against unwanted profanity is there, you just have to use it correctly. The MSG Network apparently had a three second delay in place, but the operator appeared to be slow every time a curse word was uttered and the three-second delay that is designed to bleep out offensive words (or gestures) was often heard three second after the profanity was distributed into consumers’ homes. This show, with all of its preparation and safeguards, was not censored correctly.
The point is that if you are going to go through the trouble of establishing a delay system, it has to be used correctly or the entire purpose is defeated. But if you’re a cable operator, there’s no threat of a fine: no foul, no harm? Even with the profanities out there, the event was held for a good cause, so I guess we should overlook a few slip-ups.
Another thing: Since we’re complaing, why did MSG Networks distribute the concert in stereo only? Those of us with 5.1-channel surround sound systems in our livingrooms were a bit disappotined.