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ABC to FCC: Revamp Arbitrary, Inconsistent Indecency Policy

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Add ABC to the list
of networks calling on the FCC to revamp an indecency policy they have no
confidence is still even constitutional.

In its filing to the
FCC on its indecency enforcement policy, ABC echoed the other networks in
saying broadcasting is no longer uniquely pervasive or accessible to children,
which underpins the Supreme Court Pacifica decision that rationalized the FCC's
content regulation authority.

"Changes in the
marketplace and in technology since 1978 have rendered obsolete the basic
assumptions upon which the Supreme Court approved differential treatment for
broadcast 'indecency,'" ABC said.

If the FCC is
determined to continue to regulate broadcast indecency, ABC said, it makes the
following suggestions to make that policy less vague, subjective, inconsistent,
and arbitrary. 

1) "Return to
the former FCC policy that the broadcast of spontaneous, fleeting expletives in
live programming does not violate the indecency rules"; 2) "Clearly exempt
news, documentary, and public affairs programming from the indecency rules"; 3)
"Clearly hold that material is not indecent if it is not both highly
graphic and so sustained or repeated as to constitute verbal or visual 'shock
treatment'"; and 4) "Treat broadcasters' artistic and editorial choices
with great deference and abandon what the Second Circuit has characterized as
the 'artistic necessity' standard, which puts the onus on the

While ABC said that
would take some of the chill off the policy, it "would not eliminate the
inherent vagueness and subjectivity of the indecency rules, nor would they
alter the underlying fact that dramatic changes in technology and the
marketplace since Pacifica have removed the rules' constitutional and public
policy underpinnings."