Add former FCC Chairman Michael Powell to the list of folks taking
aim at the FCCs' fleeting indecency policy.
In the wake of the Second Circuit court's decision that the
policy, as applied in a sanction for swearing in a Fox awards show and
generally, was unconstitutional, Powell, in an opinion piece for the New York Times, called the fleeting
expletive policy "a mistake."
That is the policy the FCC under then-chairman Kevin Martin
outlined after Powell's 2004 commission reversed its earlier decision that
swearing by Bono on an NBC awards show was not indecent because it was
fleeting. That policy was then applied to swearing on the Fox awards show.
Powell suggests that reversal was due to political pressure:
"When Bono used profane language on television, my staff ruled that it was
not indecent, and a political firestorm ensued. The Federal Communications
Commission reversed the decision and crafted a new policy that fleeting
expletives could be indecent."
"If the case for lesser speech protection for broadcasting
was ever sound," he wrote, "that case is eviscerated today by the sheer
abundance and accessibility of other media sources, which enjoy full constitutional
Powell joins a parade of former chairmen who have said the FCC's
fleeting indecency enforcement policy is a mistake.
In a friend of the court brief to the Second Circuit while it was
considering the Fox profanity ruling on remand, former Democratic Chairmen
Newton Minow and the late James Quello, and Republican Mark Fowler all
took aim at the policy saying it promoted self-censorship "by risk-averse broadcasters who
choose to steer clear of the landmines that the FCC's uncertain jurisprudence
has created by avoiding anything that might conceivably give offense."
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