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FCC Keeps Its Eyes on the Ball

When the Baltimore Ravens’ winning quarterback Joe Flacco swore on CBS’ air at the end of the Super Bowl, it propelled the FCC into a different, if familiar, kind of game. But the commission under Julius Genachowski seems intent on dodging the pressure to resume its crackdown on indecency and spank broadcasters, and instead keep its attention focused on broadband.

The case of indecency déjà vu all over again came as CBS’ coverage of the big game sparked the ire of the Parents Television Council for a fleeting indecency, à la Janet Jackson at the 2004 Super Bowl. In this case, it was for a couple of profanities in a postgame celebration, one of which echoed Bono’s profanity at the Golden Globes a decade ago that, combined with the Jackson incident, fueled the FCC crackdown.

A CBS source said the network had not received many complaints about the broadcast, but the PTC was planning an online effort to ramp up that number.

The current FCC has spent several years defending previous efforts to regulate fleeting nudity and profanity. But last September, the commission dropped its pursuit of Fox over nonpayment of a 2003 indecency fine for Married by America, dismissing a suit in D.C. District court.

“In the wake of the Supreme Court’s decision in Fox v. FCC, the Commission is reviewing its indecency enforcement policy to ensure the agency carries out Congress’ directive in a manner consistent with vital First Amendment principles,” Genachowski said at the time. “In the interim, I have directed the Enforcement Bureau to focus its resources on the strongest cases that involve egregious indecency violations. We also will continue to reduce the backlog of pending indecency complaints.”

According to sources, the chairman’s point was not that the FCC was going to focus on indecency, but that it was only going to pursue complaints in extreme cases, similar to the commission’s comparatively hands-off policy prior to the ’04 Super Bowl.

The Supreme Court last June vacated a Second Circuit decision that the FCC’s indecency enforcement regime as applied to swearing and nudity on Fox and ABC TV stations was unconstitutional, but concluded that the FCC did not give broadcasters sufficient notice. Chief Justice John Roberts suggested the commission has now served notice and can enforce its policy.

Genachowski, however, would much rather focus on broadband, not broadcasting, decent or indecent.

At presstime, there was no groundswell of attention on the Hill or elsewhere in Washington circles to the swearing by Flacco. By contrast, the Janet Jackson Super Bowl reveal dominated water-cooler conversations in Washington for weeks.

While the Super Bowl is a giant klieg light, a series of profanities on live sports and other programming has made it to air without repercussions at the FCC, including Jane Fonda’s 2008 slip on the Today show while discussing the play The Vagina Monologues, as well as the occasional NFL or NASCAR slip-up. NASCAR did once fine Dale Earnhardt Jr. $10,000 for an s-word uttered in victory lane at Talladega Motor Speedway, a penalty that actually dropped the driver from first to second place in the standings late in the season.

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