(From the pages of the April 9 issue of Variety.)
Given the propensity for watchdog groups to complain that the agency is too lax, and broadcasters to sue the FCC for being too vague, it’s doubtful that any new policy will be anything other than a can of worms.
On April 1, the agency opened the docket on whether to adopt a policy where it investigates only “egregious” cases of indecency, a seeming change from a policy adopted in 2004 that sanctioned even “fleeting” swear words as well as nudity. The problem with the latter is that the networks found little rhyme or reason to the rulings, and twice challenged the the agency at the Supreme Court, seeking to overturn the decisions or to strip the FCC’s authority to police content on the airwaves altogether.
But the Supreme Court’s recent decision to strike the FCC’s rulings against the networks for airing such incidents as Cher (pictured above) and Nicole Richie’s (pictured below) f-bombs was narrow, and left the door open to the agency acting on complaints over such unexpected utterances. Genachowski has seemed to have little appetite to make indecency enforcement a priority, at least compared to his predecessor. But last September, faced with a huge backlog of complaints that lingered as litigation dragged on, he did direct the agency’s enforcement bureau to focus only on “egregious” cases, with many complaints dismissed, often because the statute of limitations had run out. According to the FCC, the backlog has been reduced by 70%, from 1.48 million complaints as of Sept. 21 to 465,544 as of Feb. 25.
Broadcasters’ main argument has been that the crackdown on “fleeting” expletives and “fleeting” nudity is arbitrary, and in the D.C. legal community there still is some skepticism that a policy that focuses on “egregious” cases wouldn’t still be vague. It used to be that George Carlin’s utterance of “seven dirty words” acted as a kind of roadmap for what was permissible.
The FCC is facing two vacancies, and the opening of public comment on a new indecency policy is likely to only increase the pressure from parents orgs and politicians for President Obama’s nominees to commit to a zealous approach to objectionable content. A few of the comments to the FCC so far amplify the stations’ standpoint, that the networks shouldn’t be singled out, since so many media options proliferate. After all, think of all the options that didn’t exist when Janet Jackson had her wardrobe malfunction at the 2004 Super Bowl, a case that finally found resolution eight years later. By then, some young viewers were adults.