I believe I can see the house of cards that is the FCC’s current approach to broadcast indecency starting to fall apart. Today the 3rd Circuit Court of Appeals tossed out the FCC’s $500k fine against CBS for the infamous “wardrobe malfunction” during the Super Bowl half-time show. In its ruling the Court said the Commission’s policy on indecency, especially with regard to fleeting indecency (Janet Jackson’s breast was exposed for 9/16 of a second) is “arbitrary and capricious.”
A major component of this decision is the Court questioning the FCC’s change to treating fleeting indecency much more severely after a consistent record of otherwise “restrained enforcement” since FCC v Pacifica. The FCC tried to justify its crackdown based upon the fact that the Super Bowl half-time incident was visual in nature, whereas its past “restrained enforcement” only regarded spoken indecency.
The Court soundly rejected that argument:
“In sum, the balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion.”
I think this decision does not bode well for the survivability of the FCC’s indecency regime against fleeting indecency and expletives, whether it’s Bono’s f-bomb at the Golden Globes or a woman’s bare buttock on NYPD Blue. Although the true future of this regime is now in the hands of the Supremes, it seems to me unlikely that the SCOTUS will rule entirely opposite of the Circuit Courts in finding the FCC’s approach to “arbitrary and capricious.”
Matthew Lasar and I discussed the state of indecency before this Third Circuit decision on the July 11 radioshow. Matthew said that one worry some media reform activists have is that a Supreme Court judgement against the FCC’s indecency regime might take aim at the foundational decisions establishing the FCC’s domain over the airwaves, such as Red Lion v FCC. Eric Alterman and George Zornick outline this concern in an article for the Center for American Progress.
Yet Red Lion is much bigger than indecency, and it should be possible for the Court to rule against the FCC’s current indecency regime without throwing out the totality of the FCC’s regulatory power over broadcast. Just because the big broadcasters hope to use their case to chip away at Red Lion doesn’t mean the Court will take them up on it.
At the same time, I’m not exactly a fan of the Red Lion decision. Although this is a topic for a much longer treatise, my problem with Red Lion is that it relies primarily on the scarcity of spectrum argument, which is a double-edged sword. While it justifies what is in reality merely limp-wristed FCC enforcement of the public interest, it primarily serves as a method for the dominant broadcasters to retain their oligarchy on the airwaves, keeping potential new entrants–like LPFM–at bay, while reaping enormous profits without paying back one red cent of rent on that valuable spectrum.
Were the FCC something more than a toothless captured regulator and it were willing and able to make good on the public interest bargain promised by Red Lion, then I might be more concerned about that decision’s survival. Instead, clinging to this decision smacks of begging for crumbs–something I have almost no stomach for.
However, I’m not arguing or even necessarily hoping for the Supreme Court to eviscerate Red Lion if it rules against the FCC’s indecency regime. The most likely alternative to Red Lion is an even more toothless FCC armed only to act as security guards for the nation’s media elite. A more rational approach to broadcast spectrum regulation based on public interest and not scarcity is necessary if Red Lion is lost, and I have little confidence we’ll see such an approach in my lifetime.
So, hooray for (fleeting) boobies, and let’s hope they don’t fuck it up for broadcast regulation in total!