July 3 was the 30-year anniversary of the Supreme Court's Pacifica decision, which broadcasters are celebrating by trying to get the federal courts to rethink the FCC's enforcement of the indecency rules the court case made into policy.
Broadcasters are united in labeling the FCC's fine of ABC stations for a bare butt on NYPD Blue arbitrary, capricious and unconstitutional. But, sadly, they are not united in pushing for their long-overdue independence from content regulation.
The Supreme Court's decision in Pacifica (based on the late George Carlin's “Seven Dirty Words” routine) upheld content regulation on the grounds that broadcasting was “uniquely pervasive.” Almost 10 years earlier, Red Lion v. FCC upheld content regulation on the grounds that spectrum was a scarce commodity.
We understand that the owners of TV licenses are reluctant to push for complete freedom, since they fear the price they may have to pay. That could include having to pay for their spectrum in an open auction, or the lifting of national ownership caps on the networks, an issue that divides the networks and represented a division between the stations and networks in their respective briefs two weeks ago to the Second Circuit Court of Appeals.
Fox and NBC, for example, argue that the FCC's ban on indecent content can no longer be justified in a world with a V-chip and content ratings system, plus enough choices in content delivery to raise doubts about the “pervasiveness” and “scarcity” arguments. We agree.
It is worth noting that broadcasters don't usually abuse the freedom they already have. In fact, right now, broadcasters can air anything short of outright pornography starting at 10 p.m. without violating FCC rules. But far from suddenly becoming on-air peep shows at 10 p.m., stations continue to program to their audiences' taste, and when they miscalculate, they either adjust or lose that audience. Broadcast and cable programmers certainly aren't perfect; we squirm at language and material that is vulgar, coarse and puerile, aired when kids may very well be exposed to it. Last week on NBC's Celebrity Family Feud at 8 p.m. when kids could certainly be watching (it was a Family feud, remember?), Vincent Pastore (“Big Pussy” in The Sopranos) and Playboy founder Hugh Hefner were guests. So there were loads of double entendres about Viagra, condoms and the slang word for vagina. Indecent? Technically, no. Inappropriate for the hour? Yes, and exactly the kind of material we think many viewers rail against in complaints to the FCC.
That said, the Pacifica decision is ripe for review, but we don't think overturning it strips broadcasters of their special public-interest obligations or protections if that is not a fight broadcasters want to pick. That's because we believe structural regulations on ownership and even affirmative public-interest obligations can be separated from the issue of content regulation. One of broadcasters' public-interest obligations should be to report news and to program entertainment based only on their judgment and the dictates of their audience. They should not be required to kowtow to a standard imposed by a government-appointed regulatory agency's idea of what the public should be allowed to see and hear.
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