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Q&A With James Steyer, Common Sense Media

After the Supreme Court ruled Tuesday that the FCC has the authority to regulate so-called fleeting expletives on broadcast television, B&C checked in with James Steyer, CEO and founder of content rating and review company Common Sense Media.

Steyer, a former law clerk and professor at Stanford, gave B&C his take on what the decision could mean for broadcasters and the convergence of media.

The FCC chairman who will most likely be dealing with the fallout of the decision is Julius Genachowski, a friend and long-time colleague of Steyer’s, as well as a founding member of Common Sense’s board (and himself a former Supreme Court law clerk).

Steyer praised the decision, even though his group has advocated for parental control over government regulation. But he says that is because he doesn’t want to take government out of the content-reg equation entirely.

Since Genachowski isn’t talking until he gets confirmed to the FCC post-whenever that may be-let’s hear from that other former law clerk and First Amendment lawyer with Common Sense Media on his resume:

So, give us your read on the decision.

The justices ruled-5-4 by the way-that the FCC had not acted arbitrarily and capriciously in finding that the isolated utterances of the F-word were indecent under the law. So it is a modest negative for Fox and the other TV broadcasters because it preserves pretty broad FCC latitude to regulate their programs for indecency, which can involve considerable fines for each violation, though there was no fine imposed in this case.

Putting on my Stanford professor hat, it is a close and narrow opinion. They explicitly avoided a constitutional decision on this given the lack of a lower court ruling on that issue. They could have adopted a much broader posture, but chose not to. You can clearly see there is a division in the court on the various standards. I think a lot of that is because of the changing nature of the media environment more broadly and the fact that broadcast, cable, online, cell phones, all this stuff is merging and where are the standards. It’s not just TV any more.

So, maybe they are looking for a case where they can address that?

Maybe they are. And you are now going to have a new FCC, with an FCC chairman who is a two-year Supreme Court law clerk [for Justice William Brennan and the outgoing Justice David Souter] and a president who is a constitutional law professor.

The court also found that the FCC did have to meet a higher standard of explanation when it changed a policy, right?

Yes. The decision is good news for successor commissions. A key aspect of the analysis was devoted to establishing that the agency does not bear a higher burden when changing course from previous agency rules. For Julius, that is important because a higher burden would have made it harder to change the rules.

So, what happens now?

It is hard to say because now the decision goes back to the Second Circuit. The Second Circuit offered dicta [opinion outside the actual decision] that the FCC’s actions might be unconstitutional. If you read the [Supreme Court] opinion, they said it is not in front of us but if [the Second Circuit] wants to make a constitutional ruling, they can do it and bring it back here.

Will the Second Circuit address the constitutional question on remand?

I know some of the judges on the Second Circuit. It depends on who they get.

So, in the short term it is a victory for the FCC and their power to enforce. And it is a modest negative because it preserves that latitude. But it is hard to say what the Second Circuit will do.

But it is a five to four decision and their six opinions, which means the judges have very differing opinions. Of course, the underlying issue, you know, given the name of your publication, is that all these platforms are merging, so it is really challenging to have different standards for one than another.

And the Supreme Court could still get to the constitutionality issue in another case.

The Justices have not yet decided to grant cert [hear the challenge] of the Janet Jackson wardrobe malfunction case. There is also a Second Circuit case involving ABC and NYPD Blue. So, these issues are not going away.

And with all the platforms merging, it just makes it more complex from a legal standpoint. It is a challenge to the courts, but also potentially to the FCC under hopefully-soon-to-be-confirmed Julius Genachowski. Six opinions, 5-4, narrow, carefully crafted, very complicated opinion. There is more to come.

Common Sense promotes itself as favoring parental over government control of media content. So why did you praise the decision?

Because you need the FCC to play a role. We believe in empowering consumers to make better decisions, and we work with a lot of cable and satellite and online guys to make those tools available to people so you can choose what you want and choose not to see what you don’t want your kids to watch or listen to. But the FCC has an important role to play, and it’s important that they have the authority to regulate the media from time to time.I think there is a healthy balance between the importance of the First Amendment and empowering consumers to make better choices. But you want an FCC that has the authority to make important decisions on behalf of kids and families, and that is a broader concept than just the individual facts of a case.

I don’t believe it should be solely left up to the market.