FCC has its say in indecency case

After a who’s who of broadcast industry players criticized their “indecency” findings as unconstitutional, the FCC got its turn last week, arguing to a federal appeals court that its content rules do not violate free speech rights.

As to a ruling involving on-air expletives during the 2002 and 2003 Billboard Music Awards shows, lawyers for the FCC rejected arguments by Fox, broadcaster of the shows, that the citations were unconstitutionally vague. The FCC also argued that Fox failed to show that on-air profanity used by performers Cher and Nicole Richie during the programs were consistent with community standards.

“Nor does it offer any justification — such as artistic necessity — for the use of the ‘F-word’ and the ‘S-word’ by Nicole Richie and Cher,” the FCC said in its brief filed with the U.S. Court of Appeals for the Second Circuit in New York.

The FCC also argued that because broadcast spectrum is a scarce public resource, the First Amendment protection of licensed broadcasters is limited. It contended that justification for speech regulation need only be substantial and the means narrowly tailored, rather than the “least restrictive means” test applied to other forms of speech regulation.

The commission also dismissed the V-chip as an effective protector of children against undesirable programming. The V-chip, the FCC lawyers argued in the brief, would not have helped because the Billboard broadcasts were “misrated.” Also, the FCC said the chip was ineffective and the ratings often inaccurate, and its use was not well understood by parents. Oral arguments in the case are scheduled for Dec. 20.