Shifting standards

Webs gearing for Supreme showdown with the FCC

Ever hear of a “tossed salad?” How about a “rainbow party?”

Those euphemisms for oral-anal sex and group fellatio were discussed in detail on “Oprah” during a segment “The Secret Language of Teens,” but were subject to no fine by the Federal Communications Commission.

Meanwhile, when a guest on CBS’ “The Early Show” referred to someone as a “bullshitter,” the FCC ruled the stations broadcasting the segment had violated indecency standards.

Those were two of dozens of rulings handed down by the FCC in March, which the broadcast nets have criticized as inconsistent, arbitrary and highly subjective.

“If they are allowed to stand, they will fundamentally change the way broadcast TV is done in this country,” says a network exec.

But the rulings have one distinct upside. They allow for a court challenge that could, ultimately, put the FCC’s ability to regulate the broadcast airwaves for decency on trial.

Ten days ago, all four broadcast networks, their 800 affiliated stations and the Hearst-Argyle station group walked in rare lockstep and filed a challenge arguing that three specific FCC indecency decisions are unconstitutional and inconsistent.

The appeals involve the “Early Show” incident, ABC’s drama “NYPD Blue” and Fox’s “Billboard Music Awards” in which Nicole Richie said, “have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

The challenge, expected to be heard by a court of appeal in the next few months, could end up reining in the agency that critics claim is exceeding its authority. It could also set the stage for a Supreme Court showdown — the first consideration of the government’s role in policing broadcast content since 1978.

Given the entertainment industry’s dearth of friends on Capitol Hill, it’s no surprise broadcasters turned to the courts for relief.

“To not have appealed would have been the surprise story,” says communications policy attorney Mickey Gardner.

But the industry has also been looking for a test case, and not until March did the FCC provide decisions that could be appealed in court.

The FCC derives its indecency authority primarily from a 1978 Supreme Court decision in FCC v. Pacifica, which held that the agency could cite broadcasters for airing offensive material — if the material met specific criteria, such as being deliberate and repeated.

The case involved Pacifica’s broadcast of George Carlin’s “seven dirty words” monologue.”Pacifica was an incredibly narrow decision, but unfortunately it’s being read by the FCC to mean that certain words can be banned completely, and that is not what the decision said,” says Kurt Wimmer, an attorney whose firm, Covington & Burling, is working with CBS affils in their appeal against another FCC indecency ruling.

Veteran media attorney John Crigler, who has been involved in previous indecency cases, believes the evidence supports the nets’ contention that the FCC has overstepped its authority.

“Before, there were exceptions for fleeting, isolated instances of profanity, but now the FCC has gone to a zero-tolerance policy,” he says.

It also appears the FCC has abandoned an unwritten policy that allows the nets more leeway to program for adults after 10 p.m.

Should the nets win — and even the FCC has yet to express confidence it will prevail — FCC chairman Kevin Martin’s march against indecency will beat a forced retreat, more than likely under orders to stay within the tightly circumscribed bounds of Pacifica.

But a more wide-ranging battle could be brewing.”It’s been a very long time since any court has looked at the relationship between the First Amendment and the FCC’s indecency rules,” says Blair Levin, a former FCC staffer and managing director at Stifel Nicolaus & Co.  “It’s almost certain that this will become the leading appellate case.”

If the nets get a ruling in their favor, the indecency violations disappear and the FCC is rebuked.

“We’re hoping we get a successful ruling in the 2ndCircuit, and that ends the matter,” says one network attorney.

If the networks lose, they can appeal to the Supreme Court, which could decide the issue deserves a fresh look.

The last time the high court considered the government’s role in regulating the airwaves, back in 1978, there were three networks — no cable, no satellite and no Internet. Indeed, with the telcos charging into video and the ubiquity of all kinds of content from videogame consoles to cell phones, it makes the FCC’s power over broadcast seem anachronistic.

“There’s a real possibility this will go to the Supreme Court, where the real argument to make will be that Pacifica is just plain out of date,” Crigler says.

Moreover, Pacifica involved radio, not TV. “Every medium gets its own constitutional treatment,” Wimmer says. “This is the first TV case.”