Indecency foes including Parents Television Council (PTC) and Morality in Media (MIM) are urging Senators to press FCC chair Tom Wheeler on how he would enforce the indecency regs on the books.
That was not on the list of issues suggested in a Republican staff memo on the hearing, and Wheeler did not address it in his brief testimony for the hearing, according to a copy.
Committee chairman Jay Rockefeller (D-W.Va.) has long been concerned about TV content, including proposing bills to expand the FCC's enforcement powers to include violent as well as sexual programming and language. New Communications Subcommittee chairman Mark Pryor (D-Ark.) has also been active on the content front, also concerned about violence and motormanning a 2008 bill encouraging use of content screening technologies for parents.
Last fall, FCC chairman Julius Genachowski began working on clearing the backlog of over a million indecency complaints by pursuing only the most egregious cases, then sought public comment on whether that should be the FCC's new approach going forward, which would in essence be a "back to the future" course change from the "fleeting" indecency pursuit that seemed to occupy much of the FCC's attention under previous chairman Kevin Martin to the more restrained approach of the previous FCC's.
Wheeler's nomination hearing on Tuesday comes the day before initial comments are due on that more restrained enforcement policy.
"Senate Commerce Committee needs Wheeler to commit to defending TV decency standards," Morality in Media said in an email Monday. PTC said last week it would actively oppose Wheeler's confirmation unless he "does not make it clear that he will support enforcement of the broadcast indecency law."
The FCC actually has a lot of discretion in how it determines whether a broadcast was indecent. Staffers making the initial determination must look at "what was actually aired, the meaning of what was aired and the context in which it was aired."
The direction from the chairman to only go after egregious cases, which wasreported back in February, followed the Supreme Court decision in FCC v. Fox decision that the FCC's fleeting indecency and profanity enforcement policy, at least as applied, was too vague. The court did not find the regime unconstitutional, but said it was applied with insufficient notice, which violates administrative procedure.
The current FCC has spent several years defending previous efforts to regulate fleeting nudity and profanity. But last September, the commission dropped its pursuit of Fox over nonpayment of a 2003 indecency fine for Married by America, dismissing a suit in D.C. District court.
Although the FCC has defended the fleeting indecency enforcement policy in court, the chairman has been far more focused on broadband than on parsing content. Under the new "egregious-only" standard, the chairman has been able to reduce the majority of the complaint backlog, according to the commission.