The 2004 Janet Jackson-Super Bowl reveal seems like ancient history. But
when the Third Circuit Court of Appeals hears new oral arguments in the case on
Feb. 23, the future of broadcast television will be very much at stake. Whether
or not this court, and ultimately the Supreme Court, decides to uphold the
FCC's authority to regulate fleeting indecency will impact not only
broadcasters' bottom lines, but their ability to compete in a multi-platform media
First, there's the matter of the fine. When CBS stations were cited for
"wardrobe malfunction," the fine was $550,000. Thanks to legislation to
increase the penalty tenfold, the same fine would cost CBS more than $5 million
But the ongoing regulatory uncertainty has been costly in and of itself. The
FCC has a backlog of well over a million indecency complaints, as well as TV
station licenses up for renewal, that are awaiting some regulatory clarity. And
networks have already taken expensive precautionary measures.
"This completely unpredictable regulatory regime does impact people," says a
veteran indecency attorney who asked not to be identified. "It requires
spending a lot of time and money on [tape] delays, which always work
Broadcasters may not be alone
But if the court upholds the FCC's ability to levy hefty fines for fleeting
images and language, broadcasters may not be the only ones looking over their
shoulders. As the saying goes, once you see the camel's nose enter the tent,
the camel can't be far behind. So the commission, emboldened by the courts, may
seek to extend its regulatory powers over content into other media, including
cable, satellite and the Internet-something broadcasters would applaud.
The prospect of the FCC regulating content in other media has come up as the
commission considers its regulatory responsibility to children. FCC Chairman
Julius Genachowski continues to promote parental choice, but the FCC is trying
to figure out how it may need to regulate kids content differently in the
digital age. (Coincidentally, the deadline for filing comments in the kids
content-control inquiry is Feb. 24, the day after the Jackson arguments.)
Even so, the distinctions between broadcasting and other video-delivery
media are blurring. The FCC is pushing for a universal set-top that would unite
cable or satellite and broadband on the home TV set. The goal is to promote
broadband adoption, since 99% of the country has a TV set. And if broadcasters
can convince wireless companies to put TV tuners in subscribers' devices, the
distinction between video-delivery services will shrink even more.
John Crigler, a partner at Garvey Schubert Barer who has represented Pacifica in indecency
cases, says that is a real possibility. "If the FCC's authority to regulate
broadcasting is upheld, there may be a push, even by broadcasters, to extend
that authority to all media just on a competitive basis," Crigler says. "I
never thought it was a great argument, but broadcasters have in the past, from
time to time, said, 'Well, if you are going to regulate us, regulate cable and
satellite so we all play by the same kind of rules because we are all competing
for the same listeners and viewers.'"
Leveling the Playing Field
And full First Amendment protection for broadcast content isn't just about
constitutional bragging rights. If broadcasters could escape regulatory
scrutiny-or at least not suffer it alone-they would be free to compete on a
more level playing field with other platforms on which content is not
That doesn't mean suddenly airing full-frontal nudity, which broadcasters
already can do (but choose not to) after 10
p.m. It means having the creative freedom that producers like NYPD
Blue creator Stephen Bochco says the FCC crackdown has denied them.
As it stands, according to the veteran indecency attorney, broadcasters
likely couldn't get away with airing the most acclaimed drama in recent years, AMC's Mad Men, given its depiction of
liberal alcohol and tobacco use and serial infidelity.
"Producers would rather have an environment where they are less
constrained," the lawyer says. The decisions in the Jackson case and the still-unresolved Fox
profanity case could determine whether that sort of creative environment-lately
so commonplace in the realm of cable programming-can exist on broadcast
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