FCC Seen Unlikely to Give Indecency Guidance

No items on indecency have been circulated for a vote, and career staff in the Enforcement and Media bureaus and Office of General Counsel appear to have more work to do before deciding on a course of action, commission and industry officials said. It may take a while to reach any decisions, an FCC official said. Industry officials said the commission is unlikely to issue another order giving guidance on what would be considered indecent, as the agency last did in 2004 about a broadcast the year before of Golden Globe Awards on NBC where singer Bono said winning an award was “really fucking brilliant.”

The agency’s expected to set precedent in a more piecemeal way, through individual enforcement decisions, which may come after a hiatus during the Fox I case that came before the Supreme Court in 2009 and Fox II decided last week. The Supreme Court’s 8-0 vote was on due process grounds, fining affiliates of Disney’s ABC for 7 seconds of nudity in 2003 on NYPD Blue, and censuring News Corp.’s Fox for that year and 2002’s Billboard Music Awards. Legal scholars not involved in the case said it was rare for the high court not to also rule on the First Amendment aspects of indecency, since the justices specifically sought briefs on that and the Fifth Amendment. A commission spokesman declined to comment for this story.

Chairman Julius Genachowski and others at the FCC may fear criticism of any new guidance from an appeals court when another indecency case inevitably comes before it, and the same would be true of any commission chairman, lawyers who oppose and back fleeting indecency enforcement said. “There’s a good question I suppose of whether he who sets the schedule will want to jump into enforcement of indecency law,” said President Patrick Trueman of Morality in Media, which last year filed a brief supporting the commission in Fox II (http://xrl.us/bncymq). Genachowski “may feel, ‘Well I'm not going to be around long” since he may leave after the presidential election, “and ‘Do I want to start with a vigorous enforcement program of indecency law, and have that be a legacy?” said Trueman. “That is a worry to us."

It’s more politically palatable for the FCC to tackle the backlog without issuing wide guidance, as it may leave the agency less open to criticism, industry lawyers said. Other court decisions have used indecency policy statements against the commission, and “they may well go back to the unglamorous task of deciding these one by one,” said TV-station lawyer Scott Flick of the Pillsbury law firm. “That may well take a tremendous amount of time. But I think we've reached the point that if you are a network affiliate, you probably have an indecency complaint” pending, he continued. It’s a long shot for the FCC, seeing “the sheer scope” of complaints before it, to pursue broad policy guidance, Flick said. There are also at least dozens if not hundreds of radio stations with pending complaints that also should be addressed, said radio station lawyer David Oxenford of Wilkinson Barker. “I'd love for the commission to come up with a process to get rid of all the pending complaints.”

The commission may move to dismiss complaints made before March 18, 2004, when the Golden Globes order (http://xrl.us/bncytg) found a single curse on a broadcast could be ruled indecent, said Flick and other lawyers representing broadcasters. Morality in Media doesn’t think “we'll need further guidance,” Trueman said. “I'm not sure they have to handle all those” backlogged complaints, he said. The group, Parents Television Council and others will seek to meet with Genachowski and the other FCC members to get the process jump started, Trueman said. “Prudence would dictate they handle many of those that would provide further guidance ... rather than handle all of them” at once, he said of complaints. “They should handle a number of them and pick and choose the ones where they would have precedential value and offer further guidance."

"I also don’t see the FCC kick-starting the complaint process in the short term,” said First Amendment and broadcast lawyer Kevin Goldberg of Fletcher Heald. “I think they're trying to read the court’s language as much as we are to see just how narrowly it can be construed.” One interpretation is the ruling only applies to the Billboard and NYPD Blues shows at issue, Goldberg said. “You could also argue that it would apply to anything before the 2004 Golden Globes decision, which is the cutoff point that the court looked to for notice to broadcasters that they could be subjected to an enforcement action for fleeting expletives. But I'm pretty sure the FCC won’t simply start reviewing all their pending indecency actions.” It would take years for the entire Enforcement Bureau staff to deal with every complaint, said Flick.

One possible wild card is what action the 2nd U.S. Circuit Court of Appeals in New York, which found against the commission, will take given the high court’s remand. The 2nd Circuit may simply remand back to the agency Fox II on the same due process grounds the Supreme Court found against the FCC on, industry lawyers said. “I'm guessing the court is also telling the 2nd Circuit that it should simply and quickly remand these particular actions to the FCC,” Goldberg said.

That the Supreme Court didn’t rule on the First Amendment aspects of the ABC and Fox indecency censures may reflect that the court would have split 4-4 on a free-speech ruling and thus effectively upheld the 2nd Circuit’s decision, law professors speculated. “I suspect it is indeed quite rare, and does indeed fit the 4-4 split theory,” UCLA’s Eugene Volokh said of avoiding a ruling on an issue where briefs were sought by the court. Such scenarios don’t “happen all the time,” said the University of California at Irvine’s Erwin Chemerinsky. “It happens from time to time, especially when the court finds a narrower way to decide a case. What is unusual here is that this is the second time this case has been before the court, and both times it ducked the First Amendment issue. Did they do it to avoid a 4-4 split? Possible, but there’s no way to know unless one talks,” he said of the jurists.