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NAB: Broadcast-Targeted Content Regs Increasingly Indefensible

The National Association of Broadcasters has told the FCC that a broadcast-only indecency policy is increasingly indefensible in a digital world where kids are accessing unfiltered content from a variety of platforms, and says a proposal to only pursue egregious indecency complaints is not enough.

In comments on the FCC's proposal Wednesday, NAB said: "In the 35 years since the Supreme Court's decision in FCC v. Pacifica, the rationale for broadcaster-specific limits on 'indecent' speech has crumbled under the weight of changes in technology and media consumption," pointing out the rise of Internet-delivered video under no such content restrictions. "Specifically, with regard to the government's concern that children may be exposed to adult-oriented or otherwise inappropriate material, there is no principled way to focus solely on broadcast content."

If the FCC does continue to single out broadcasters, NAB said, it must "use language that is as precise as possible and provide relevant examples and context in its policies and decisions." If not, broadcasters should not be subject to liability for "alleged violations."

To create that additional clarity, NAB says, the FCC needs to reverse the Golden Globe decision -- where the FCC overturned a bureau decision and concluded that fleeting, adjectival profanity was actionable. It must also reaffirm that to be actionable, indecency must "describe or depict sexual or excretory organs or activities." That would return enforcement to the more narrow "Pacifica"-based enforcement pre-2004, it says. "Any policies going forward not only must be cautious and restrained, as Pacifica requires, they also must be as predictable, consistent and clear as possible."

NAB says the FCC should also step back from "substituting its own editorial and artistic judgment for that of broadcasters and the creative community," which means not acting unless there is a clear abuse of discretion by broadcasters.