FCC chair's indecency push is slowed

Kevin Martin’s attempts to leverage Janet Jackson’s Super Bowl “wardrobe malfunction” into tougher indecency standards appear to be facing their own two-minute warning.

Two court decisions — one just last week — have set back the Federal Communications Commission’s activism on indecent material. And with the courts fogging the issue, FCC chairman Martin sees time rapidly running out for any concrete action before the impending presidential election.

Martin’s best chance of salvaging his plan lies with the Supreme Court. But that likely won’t happen until after a new president is sworn in next January. Even then, it’s anybody’s guess how the new president — whether it’s Barack Obama or John McCain — would go about implementing the court’s decision.

“I suspect Martin will say, ‘I tried to tighten things up on indecency, but those damn liberal courts stopped me,’ ” says communications attorney John Crigler.

(An FCC spokeswoman said Martin was not available to talk for this article.)

Like any other governmental or corporate leader, FCC chiefs build a legacy on certain issues and accomplishments. For Michael Powell, Martin’s predecessor, they included championing new technologies and a largely self-regulating marketplace.

Martin has acted similarly on new technologies as well as on broadband deployment, but he has also tried to stake a claim on improving indecency enforcement and regulation. The FCC under his watch has issued two significant rulings on indecency that ultimately led to separate federal courts knocking both rulings down.

In February 2006, an “omnibus order” addressed multiple indecency complaints to the FCC. Part of the order cited Fox for two separate instances of fleeting expletives uttered on live broadcasts such as the Billboard Awards.

The second, a month later, involved the Janet Jackson breast flash on CBS during the 2004 Super Bowl halftime show. When the FCC first reviewed the incident in 2004, Powell was chairman; the agency said it was likely indecent and proposed a fine. CBS asked for reconsideration. In March 2006, the FCC — under Martin — denied the request, deemed the flash indecent and said pay up.

Fox and CBS took the FCC to federal appeals court, saying the agency had acted “arbitrarily and capriciously” in ruling that fleeting words and images were actionable. In each case, a three-judge panel ruled notably in favor of the nets.

How notably?

“Behind all the legalese in both decisions, there’s a real skepticism about the FCC regulating indecent content,” says Ken Ferree, a former senior FCC official under Powell who now heads the libertarian Progress & Freedom Foundation. “It’s time to rethink whether the whole scheme even makes sense anymore.”

Though others disagree — curbing indecency under the banner of protecting children has enjoyed legislative backing at times from both Republicans and Democrats — some like Ferree think that’s precisely what could happen when the Supreme Court takes up the appeals court decision in the Fox case of fleeting expletives. Of course, the court could also reverse the decision and uphold the FCC, but either way, the court is not likely to rule on the case until sometime next year; a date for oral arguments has yet to be set.

Most observers expect that if Obama is elected, Martin, a Republican, will likely be replaced, and his push for a tougher stance on indecency will similarly fade. But even under McCain, support for Martin’s aggressive approach on indecency would not be guaranteed.

“McCain really hasn’t said much on indecency,” Crigler notes. At a minority media forum last week, John Kneuer, speaking for the McCain campaign, said he believes current FCC indecency standards are “overdue for examination,” alluding to a need for standards to reflect new media and filtering technologies. Kneuer also stressed a need for more parental controls over content. He acknowledged an ongoing role for the FCC in the issue, but he did not criticize the 3rd Circuit opinion in the CBS case nor offer any endorsement for Martin’s approach.

“It’s more important to look at McCain’s track record on indecency,” counters Dan Isett, public policy director for Parents Television Council, which has pressed the FCC for better enforcement of indecency standards. “The first broadcast indecency bill passed through his (Senate) committee when he was chairman in 2004.”

McCain is also co-sponsor on two pending bills on indecency, says Isett, who is optimistic that either a McCain or Obama administration would likely be vigilant on the issue.

“All five commissioners have concerns about this,” Isett continues, noting that the 2006 omnibus order passed a commission vote unanimously. “It’s erroneous to think that only conservative Republicans think broadcast indecency is important. I just don’t buy the networks’ argument that this is a one-man show at the FCC, so I don’t think the clock is running out on Kevin Martin.”

Ferree, who served four years at the FCC, says he has long had the impression that it’s really been a two-man show: Martin and Democratic commissioner Michael Copps, who has consistently supported the chairman’s actions on indecency. “Martin and Copps seem to have been the drivers on this from the get-go,” Ferree says.

An industry insider says that “for all intents and purposes, it’s been Kevin Martin — always has been and always will be.” Moreover, “In a post-Janet Jackson world, it would have been political suicide for any commissioner not to vote for the 2006 omnibus order.” Still, Ferree concedes that the 5-0 vote is “a fair point to consider.”

Whether Copps, the senior Democrat, would be appointed FCC chairman in an Obama administration isn’t clear, but even if he were, not all are convinced he would keep cracking a whip on indecency.

“Copps did not issue any statement on the 3rd Circuit decision,” the industry insider points out. “I think he’s starting to quietly walk away from this because it’s a loser and constitutionally suspect.”

But neither did any other commissioner issue a statement; only Martin did, saying the ruling simply underscored the importance of the Supreme Court to take up the issue.

A question also looms regarding how far into the issue the Supreme Court will go. Not much, Crigler says. While the court will address only the 2nd Circuit decision striking down FCC enforcement against fleeting expletives, Crigler notes that both the 2nd Circuit and 3rd Circuit decisions “only nibble at the edges of the overall indecency policy. They said the FCC either went too far or hadn’t sufficiently explained what they did. That’s a far cry from ‘Game over!’ “

“I don’t think it’s a stretch to say that once this gets into the court, who knows what’s going to happen?” Ferree says. Constitutionality of indecency regulation could easily come into play, he adds.

Isett disagrees with both observations, which he says are essentially based on the two court opinions’ mistaken premise that the FCC tried to toughen indecency standards. “Martin simply tried to enforce the existing law,” Isett says. “There simply was no enforcement for almost 30 years.”

“That’s nonsense,” a former FCC official responds. “In both decisions, the courts allowed FCC authority over First Amendment speech with the understanding that the FCC would exercise it in a restrained way, only in extreme cases. Both decisions said the FCC overstepped.”

Two minutes and counting.

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