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Editorial: Indecency Rules Need to Go

It's timely that a federal court has called into question part of the FCC's indecency policy.

It’s timely that a federal court has called into question part of the FCC’s indecency policy.

In June, an appeals court overturned an FCC ruling against the Fox Television Network, saying the commission’s “fleeting expletive” policy was arbitrary and capricious. The court also included discussion of constitutional flaws in commission policy; this was seen by a number of observers, including RW, as an effort to send a clear signal to the FCC about serious infirmities in its policy.

The court rejected the FCC’s policy imposing liability for the airing of a quick expletive or two. For three decades, before the expletives that were uttered during music awards shows in 2002 and 2003, the commission had exonerated single, fleeting expletives. However the FCC now flat-out prohibits the “F” and “S” words, finding them presumptively offensive, and has reserved the right to go after other words or expressions.

What really need to go are indecency rules themselves. They are a response to pressure groups who claim to support market forces as the best regulation but then go running to government when they don’t like the outcome.

Regardless of how you feel about Don Imus and the way in which he lost his job, the public spoke up in his case. Advertisers and networks got the message and a change was effected without intervention from the FCC.

Chairman Kevin Martin feels it’s his job to “protect families from that kind of language.” Thanks, Mr. Chairman, but we know how to change the channel and where the “off” button is. As Fox spokesman Scott Grogin said, “Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home.”

The FCC was not created to regulate content. Broadcasters are right to push back on attempts to curtail such freedoms.

Members of Congress should remember they are supposed to defend the Constitution, not cave in to special interests with lots of campaign money. It’s time to put an end to the notion that the FCC can or should play the role of “Indecency Nanny” for all of us (though we’re not particularly hopeful, given the recent record of Congress).

The commission faces several choices. It can: accept the court’s remand and try (again) to justify its policy; seek a rehearing from the same panel of judges or before all judges of the court; appeal the decision to the Supreme Court; or accept the decision and revert to its former policy, which is in effect now.

Separately, though it had been almost a year since President Bush signed legislation raising fines for broadcast indecency to $325,000 per occurrence, the FCC only recently adopted rules to implement those fines. The change was published in the Federal Register and July 20 was set as the effective date for the higher fines.

That timing is ironic, since the threat of big fines for a fleeting expletive could be seen as blunted by the court’s rejection of the fleeting expletive policy. The court’s ruling technically does not conflict with increased fine levels; in fact, the commission could impose big fines for a wide range of “indecent” broadcasting that arguably does not fall into the “fleeting expletive” category; but it will be interesting to see if and how the commission decides to impose the larger fines while various aspects of its indecency regime remain under review.

That’s another reason to call into question any enforcement of the commission’s indecency policies for the time being. Should the commission impose extra large fines though its indecency house remains under scrutiny? We think not.

As Ambassador Ogden Reid told broadcaster Bill O’Shaughnessy in a radio interview in 2006, “I don’t like to see speech circumscribed in any way, shape or form. … I’d rather have free speech up or down with a little obscenity, than lose free speech altogether.”

— RW