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FCC Report Language Troubles Attorneys

The FCC appears to be playing a little fast and loose with legal precedent as it tees up its broader inquiry into controlling content across a range of media platforms. That, at least, is the opinion of some veteran First Amendment attorneys.

Even as the commission released its media management report to Congress two weeks ago, it was already agreeing with a congressional call for more than the requisite survey of the landscape the report provided.

While acknowledging the report failed to answer some key questions, the FCC signaled the additional inquiry. And both the report and the further review are buttressed by language that could lay the groundwork for applying indecency regulations to cable and satellite.

In the report, which was approved unanimously by the five commissioners, the FCC described television as a “uniquely pervasive presence in the lives of all Americans,” attributing the quote to the 1978 Pacifica decision involving airing of George Carlin's “filthy words” routine. It went on to talk about TV as the medium of choice, supporting the claim with statistics that do not separate out broadcasting from cable or satellite, as a preamble to discussing what content control tools are available on both pay and free TV.

The rub in all this is that the FCC put “television” in front of the Pacifica quote in the report, when Pacifica dealt generally with “broadcasting,” and with only over-the-air broadcasting. The Pacifica case, in fact, was about radio.

But by applying the “uniquely pervasive” moniker to all of TV, free and pay, the FCC echoed the longstanding justification for content regulation that has not applied to pay TV media.

“We used the term 'television' and 'broadcast' interchangeably in the report,” said a Media Bureau spokesperson. However, the former was used broadly to include the pay media, which are not under the same regulatory regime.

“[Pacifica] said nothing about television,” said one veteran First Amendment attorney. “It talked generally about the 'unique' nature of broadcasting. To the extent that the commission is saying that now television is [unique], that is an argument, but certainly not one that Pacifica says.”

“I share the concern about this being an FCC feeling unconstrained by statutory limits on what media they can regulate,” said another attorney who has argued many content cases. While the attorney agreed the FCC could be launching a run at regulating pay media, he also believes the commission has misread the meaning of pervasiveness. “As used by Pacifica, pervasive means uncontrollable,” he says, pointing out that the report counts the ways in which viewers have control over content.

The paragraph about uniquely pervasive TV “stands out like a sore thumb,” adds the attorney, further suggesting that the FCC is in the midst of litigation over their indecency enforcement regime and is “trying not to undermine their litigation position” in the report.

Janet Jackson Next

The FCC's brief in the remand of the Janet Jackson indecency finding against CBS stations is due to the Third Circuit Sept. 14, and its brief in the remand of the Fox profanity decision comes at the end of October.

“They could try to make a new case that television [cable and satellite as well as broadcasting] has the same role as broadcasting did in Pacifica, and the court should extend the indecency authority further,” adds another First Amendment attorney who also asked not to be identified.

But he argues that would run afoul of the Playboy case, in which the Supreme Court ruled that a ban on indecent content was overly restrictive given multichannel video providers' existing content-blocking technologies.

Republican commissioner Robert McDowell, for one, said he did not interpret the citation as supporting any broader interpretation. And in a speech last week, Commissioner Meredith Attwell Baker said she saw the report as promoting industry, not regulatory, solutions.

“While I can't speak for my fellow commissioners, in my view the context of that particular quotation is key,” McDowell told B&C. “The sentence in question comes at the beginning of a paragraph devoted to children's use of, and statistics about, television generally. It does not represent my legal interpretation of the reach of the Pacifica case or of the FCC's jurisdiction over the various areas addressed in the report.”

One attorney saw a potential silver lining in the report's wording: the emphasis on television as the “medium of choice” for kids. Given the way children use media, he says, “How can the one-size-fits-all indecency standard be the least restrictive approach?”

The report, as stated, is not the last FCC word on content control. In fact it is more of a first volley. It will take more volleys before—to paraphrase Carlin—the FCC will truly get to the heart of what words you can or can't say about indecency and television.

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