FCC to Get F-Word Help
Justice To Ask High Court for Support on Indecent Language
By Ted Hearn -- Multichannel News, 9/30/2007 8:00:00 PM
Washington — The Justice Department plans to ask the U.S. Supreme Court to uphold the authority of the Federal Communications Commission to punish TV stations for the isolated and fleeting broadcast of the F-word.
The case, which does not involve cable, threatens the FCC’s authority to rid TV broadcasts of indecent language and impose large fines as punishment. The high court could decide to rein in the FCC or embolden it to go after marginal infractions.
The Bush Administration’s decision to seek high court review was disclosed Sept. 24 in a Justice Department request to have until Nov. 1 to file the official documents the court needs to consider the case. Associate Justice Ruth Bader Ginsburg last Monday approved the Nov. 1 extension request sought by U.S. Solicitor General Paul Clement.
Meanwhile, FCC chairman Kevin Martin last Tuesday disclosed his support for an antitrust suit in a California federal court that seeks to force cable programmers and operators to sell TV networks on an a la carte basis.
After repeating that he wanted cable a la carte to happen as a result of voluntary action, Martin told reporters, “I am supportive of any and all efforts to try to establish consumers having the ability to pick and choose their channels.”
The two cases, while totally dissimilar in terms of the legal issues involved, are similar in that Martin believes that if consumers can select their cable networks individually, they can avoid having to purchase a bundle and block channels they do not want their children to see.
“No matter what, consumers deserve and should have the right to pick and choose their channels,” Martin said. “I’m supportive of any and all efforts that would allow that, but what I would like to see, sure, is people offer a la carte voluntarily.”
CRACKDOWN INTERRUPTED
Martin’s crackdown on television indecency was dealt a setback in early June, when a panel of the 2nd U.S. Circuit Court of Appeals ruled that FCC punishment of the fleeting broadcast of the F-word violated the Administrative Procedure Act because the agency failed to supply a reasoned explanation for its new, get-tough policy.
For nearly three decades, the FCC has overlooked one-time use of the F-word, focusing instead on repetitive use of profanities.
But the agency changed course in 2004, starting with a ruling that rock singer Bono’s use of “f--king brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe Awards. Similar rulings followed.
The 2nd Circuit said in a 2-to-1 ruling that the FCC’s new policy was a significant departure from precedent that could not stand.
Martin, who denounced the 2nd Circuit ruling, applauded the Justice Department’s support in a statement last week.
NO BAN ON BUNDLING
Four of nine Supreme Court justices must vote to docket a case. Although the court reviews thousands of appeals, it agrees to hear just 80 to 100 cases in a typical October-to-June term.
Support from the Solicitor General generally improves the odds of a case being heard by the Supreme Court, said Washington D.C. attorney Amy Howe, a contributor to SCOTUS Blog (www.scotusblog.com/movabletype), which closely monitors action at the high court.
“[The court has] a lot of respect for the SG’s office as an institution,” Howe said, noting that the Solicitor General is known as the 10th justice.
The Solicitor General doesn’t back frivolous appeals, she added.
“They will really only petition for [review] if they think they have a good change of the court taking the case and winning,” she said.
FCC rules ban the broadcast of indecent material from 6 a.m. to 10 p.m. in an effort to shield children from inappropriate language and images.
Those agency “safe harbor” rules do not apply to cable television. In some ways, the antitrust suit has become the latest vehicle to regulate cable content.
The suit, filed in federal court in Los Angeles on behalf of a few cable and satellite TV subscribers, alleged that pay TV distributors and programmers are violating antitrust law because subscribers are denied a la carte access to TV networks sold in bundles with dozens of other channels.
“The antitrust laws prohibit this kind of bundling,” said attorney Maxwell Blecher, who filed the suit on Sept. 20.
Blecher said the suit, if successful, wouldn’t result in a ban on bundling.
“I think they can bundle it and offer people the bundle if they offer it to them a la carte as well,” he said.
