'Smut and Nothing But': The FCC, Indecency, and Regulatory Transformations in the Shadows
74 Pages Posted: 8 Mar 2013
Date Written: February 28, 2013
For almost a century, American broadcasting has received a lesser degree of constitutional protection than the print medium. Although many of the FCC’s regulations in “the public interest” have been upheld against First Amendment challenge on the ground that broadcasting is exceptional, the traditional reasons given for such exceptionalism – scarcity and pervasiveness – have become increasingly careworn. Fighting that consensus, the FCC has aggressively pursued the regulation of indecency on radio and television since 2003. When the FCC’s enhanced indecency prohibitions swept up U2 front-man Bono’s fleeting expletive on a music awards show, broadcasters finally thought they had found a vehicle to force revolutionary changes to the second-class status of broadcast media. That was not to be. In a profoundly anti-climactic opinion issued on June 21, 2012, the Supreme Court in Fox Broadcasting Company v. FCC refused to address the First Amendment status of broadcasters. The Court’s silence speaks volumes. Although Fox specifically invited the Commission to consider its indecency regime in light of the public interest, its refusal to tackle the broader regulatory question implicitly suggests that a majority is not unduly troubled by continuing the exceptional regulatory treatment of broadcasting as a constitutional matter.
This is an important development because the FCC is currently facing 500,000 complaints about 5500 programs – many generated by and made into cause celèbres by conservative groups. This Article describes the ways – unnoticed by the Court – in which the indecency regime that will be used to resolve these cases constitutes a regulatory Trojan horse. In total, the doctrinal and justificatory changes amount to a sub rosa transformation in FCC regulation. The Commission has significantly extended its regulation of broadcast indecency both substantively and procedurally; recruited “voluntary” commitments by broadcasters to “zero tolerance” indecency regimes; and quietly transformed its articulated rationales for regulating indecency in order to permit extensive cultural regulation. Importantly, these developments have evaded judicial review.
The regulatory regime for indecency constitutes bad communications policy. The Commission’s approach puts at risk both the socially valuable public interest documentary programming of public radio and television, and the live local programming (of news and sports, for example) that serve to bolster community identity. Yet wholly deregulatory solutions are not politically viable. The remaining question, then, is how to promote a return by the FCC to a policy of restraint. Engaging in an exploration of the second-best, this Article makes three categories of suggestions in that spirit. First, the Commission should adopt a norm of proportionality in its forfeiture policies in order to reduce the chilling effect of indecency regulation on broadcasters. Second, the FCC should consider extensive institutional adjustments – including standards and processing changes – likely to improve the FCC’s record regarding indecency. Third, with a view to consumer empowerment, the Commission should explore methods designed to enhance public knowledge and transparency.
Keywords: FCC, indecency, V-chip, Pacifica, Fox v. FCC, First Amendment
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