May 19, 2011: John Garziglia of Womble, Carlyle, Sandridge, and Rice talks this week about the FCC's regulations on indecency. Though he says that nothing has changed for now, if the Supreme Court ultimately upholds the agency's stricter rules, "nothing prevents the FCC from attempting to enforce indecency rules for material that is broadcast now, with potential fines in the hundreds of thousands of dollars."
Radio Ink: What is your latest interpretation of the FCC's indecency rules?
John Garziglia says: The FCC's law on indecency is as it always was. You and I know indecency when we see or hear it, but so do religious organizations, public interest groups, courts, and the FCC. Not remarkably, no one agrees on what it is.
You may recall that in the past year, the 2nd Circuit of the U.S. Court of Appeals threw out the FCC's rules on indecency, saying the rules were unconstitutionally vague. The court stated that broadcasters were uncertain of what programming the commission will find offensive.
Now the FCC and the current administration has sought U.S. Supreme Court review of that 2nd Circuit decision. There is no certainty that the Supreme Court will accept this case.
If the Supreme Court does accept the case, anything could happen. The administration's brief in support of acceptance makes a narrow argument that the 2nd Circuit went far beyond what it was legally allowed to do by looking at whether the FCC's rules were vague as applied to a variety of situations, rather than only reviewing the factual situations before it. Directly before the 2nd Circuit were issues of whether a woman's nude buttocks on NYPD Blue, and celebrities cursing on TV award shows, were indecent under the FCC's rules.
If the Supreme Court does take up the case and upholds the FCC's indecency enforcement, it presumably will have to answer the question why the repeated broadcast of expletives in Saving Private Ryan is not indecent, while the same word uttered by blues musicians on a public television documentary is.
At the same time, however, broadcasters should be aware that certain instances of radio broadcast content does not necessarily bode well for a complete overturning of the FCC's indecency prohibitions. The January 9, 2002 Deminski & Doyle radio show transcript on the FCC's website makes that point rather distressingly (find it by looking at the Deminski and Doyle entry in Wikipedia). The radio show's content that day was so repugnant that it is difficult to imagine any judge, let alone Supreme Court justices, saying that such material should not be actionable when broadcast over the air.
It is impossible to guess which way the Supreme Court will go. The Supreme Court could narrowly decide that the FCC's indecency rules remain in effect due to technical infirmities in the 2nd Circuit's decision, thus side-stepping First Amendment issues for now. This would put off for another day any overall challenge to the FCC's indecency rules.
Or the Supreme Court could uphold the FCC's indecency regulatory regime and, at the same time, ignoring precedent, indicate that our government has the power to expand its indecency purview far beyond broadcasting to encompass cable, DVDs, video games, and the Internet.
For now, nothing has changed for radio broadcasters. While it is doubtful that the FCC will pursue any current complaints of indecency until the Supreme Court has spoken, once the Supreme Court speaks, nothing prevents the FCC from attempting to enforce indecency rules for material that is broadcast now with potential fines in the hundreds of thousands of dollars.
More importantly, with the radio license renewal cycle beginning, no radio station wishes to have its license renewal application held up due to an indecency complaint. Therefore, the prudent broadcaster will enforce programming guidelines that ensure that no programming will even arguably come close to what a religious organization, a public interest group, or the FCC is likely to see or hear as indecent material.
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