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PTC to FCC: Broadcasters Can't Have It Both Ways

The Parents Television Council told the FCC Friday that
it should not turn its current "egregious cases" approach to
indecency enforcement into the de facto standard going forward.

That came in reply
comments to the FCC's request for comment on whether it should indeed make that
the law--OK, rule--of the land when in comes to indecency enforcement. Under
former FCC Chairman Julius Genachowski, the FCC adopted that approach last fall
to try and work through a million-plus complaints that had piled up while it
enforcement authority ws still being argued in various courts.

"[N]o court has
compelled the FCC to make any changes to its indecency rules and doing so now
will continue to cloud the issue and invites further litigation from
broadcasters," said PTC in its filing.

Broadcasters support
the "egregious cases" approach rather than the FCC's previous pursuit
of adjectival utterances and fleeting nudity. In their comments, most have
argued that it no longer makes sense to apply the "uniquely
pervasive" label to broadcasting when it comes to access to content given
the rise of cable and satellite and online video and the explosion of mobile
devices that make a range of content available at the click of a mouse of the
swipe of a finger.

But PTC maintains that
broadcasters are trying to have it both ways, arguing in the indecency docket
that increasingly engaging with nonbroadcast media, while arguing in the
context of incentive auctions that they are a growing over-the-air-only viewing
force to be reckoned with.

The inescapable
conclusion derived from the National Association of Broadcasters own data is
that even in an environment of media proliferation, millions of Americans still
rely exclusively on over-the-air broadcasting," PTC says in it filing.
"Those populations tend to skew younger, have lower income, and be made up
of more minority groups than the population as a whole. In other words, any
would-be changes to the Commission's broadcast indecency rules would
disproportionately affect the poor and minority groups."

Broadcasters have
been using the argument to the FCC that reducing the number of over-the-air
stations via the incentive auctions will disproportionately affect the poor and
minority groups.

"It is our hope
and expectation that the Commission will not confuse what the entertainment
industry and its allied groups want to be the case with what the Supreme Court
actually did (or, more precisely, did not do) in Fox II," said PTC. That is the
Supreme Court ruling that the FCC's fleeting nudity and profanity enforcement
regime was not unconstitutional on its face, only as it had been applied
because the FCC did not make it sufficiently clear to the FCC what content was

"The broadcast
decency law remains in force," said PTC, "and no court
has overturned it or the Commission's rules to implement it. The most recent
Congressional action was to increase ten-fold the fining authority of the
Commission to deal with violations of the law. The public policy on this matter
is clear.

PTC, which encouraged members
to file comments opposing codifying the egregious approach, pointed out that
there were more than 102,000 comments, running 1,000 to one against
codification. The issue has also gotten some attention on Capitol Hill, where
Senator Marco Rubio (R-Fla.) wants to here more from FCC chair nominee Tom
Wheeler on the issue before a full Senate vote on his nomination, likely
sometime in September.