The Washington Post

Supreme Court to hear FCC challenge

The Federal Communications Commission has been fighting for years to be television’s Miss Manners. Now, the Supreme Court may finally lay any question about its role to rest.

The Supreme Court said Monday it would take up a case to determine whether the FCC’s enforcement of broadcast decency rules is constitutional. The court will begin to hear arguments this fall in what is expected to be a fierce battle between the agency and broadcasters over First Amendment interpretations.

The FCC’s role as an arbiter of what is and isn’t prudent to air during hours when children may be watching has come under intense scrutiny. Consumer complaints against content aired on free over-the-air television and radio have skyrocketed in recent years. Janet Jackson’s exposed nipple during a 2004 Super Bowl half-time performance drew half a million complaints alone.

“We are hopeful that the Court will affirm the Commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming,” a spokesman from the FCC chairman’s office said in a statement.

The current rules aim to prevent indecent content — such as nudity and curse words — from appearing on TV between 6 a.m. and 10 p.m. The FCC can impose fines, revoke broadcast licences or deny a renewal application.

Yet broadcasters and some free speech groups say the FCC has gone overboard.

In 2004, the FCC beefed up its enforcement, prohibiting the airing of curse words — known as “fleeting expletives” — that are uttered during live performances. The agency increased fines for violations by 10 times, to a maximum of $250,000 per incident.

Broadcasters including Fox, CBS and ABC protested and waged court battles to challenge the agency’s regulatory powers.

Last year, the Court of Appeals for the Second Circuit in New York sided with broadcasters, saying the FCC’s authority as decency watchdog was vague and that its enforcement could have a chilling effect on the broadcast industry.

Specifically, the appeals court questioned the constitutional authority of the FCC’s enforcement action against Fox for curse words uttered by Cher and Nicole Richie on live awards shows in 2002 and 2003. Earlier this year, the same court overturned the FCC’s fine against ABC for showing the naked backside of a female actress during a 2003 episode of “NYPD Blue.”

Broadcasters said they prefer the use of blocking technologies to prevent indecent content on television.

“We will continue to offer programming that is reflective of the diverse communities we serve,” said Dennis Wharton, a spokesman for the National Association of Broadcasters. “Responsible programming decisions by network and local station executives, coupled with program blocking technologies like the V-chip and proper guidance of children by parents and caregivers, are far preferable to government regulation of program content.”

Cecilia Kang is a senior technology correspondent for The Washington Post.



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