CBS: FCC Should Adopt 'Egregious Case' Indecency Enforcement Policy

Says Fleeting Nudity, like Fleeting Profanity, Should Not Be Actionable

"The Commission should proceed against alleged broadcast indecency only in the most egregious cases -- that is, where the elements of graphic explicitness, 'dwelling or repetition' and a context evincing a lack of serious purpose are all present."

That was the bottom line for CBS in June 19 comments to the FCC on its indecency enforcement regime.

Reform is clearly needed, said CBS, given that "scores" of license renewal applications remain held up over indecency complaints. "More restrained enforcement is necessary if any order is to be brought to the chaotic state of indecency regulation," CBS added.

The FCC sought comment on whether to formalize its current "egregious cases" approach, undertaken under former FCC chairman Juilus Genachowski. That approach is more like the pre-Golden Globes/Janet Jackson decisions, when fleeting nudity and adjectival profanity was not actionable.

CBS says a return to that approach is the best way to go, and that it should apply to both live programming and scripted programming. "A government agency should not be distinguishing between the isolated use of the word 'bulls**t' in a police drama and much stronger language in the broadcast of an Academy Award winning movie or CBS's Peabody Award-winning documentary about the events of September 11.

CBS suggests that given that broadcast is no longer uniquely pervasive and with the advent of new blocking technologies, there is "grave doubt" that the FCC can devise "any enforcement policy" that will pass First Amendment muster. CBS suggests the FCC's only hope of rationalizing an indecency enforcement policy to the court is by adopting a more restrained approach and only going after the most egregious violations.

If it does so, says CBS: "It need not be concerned that doing so will make of broadcast television some sort of red-light district. That has not happened with respect to the post-10 p.m. "safe harbor," and it will not happen in daytime, or prime time..."