FCC Tries a Quarterback Sneak on the Second Circuit

WASHINGTON, D.C.—After the U.S. Supreme Court's ruling in Federal Communications Commission (FCC) v. Fox Television last April, remanding the case for reconsideration, First Amendment advocates eagerly anticipated the Second Circuit Court of Appeals' next move, which many thought would include argument on the constitutionality of the FCC's policy on "fleeting expletives."

But in what appears to be an effort to short-circuit exactly that debate, the FCC filed a brief in another, similar case which the Supreme Court had also ordered to be reconsidered: FCC v. CBS Corp., the now-world-famous controversy over the split-second baring of Janet Jackson's breast during the 2004 SuperBowl half-time show.

Essentially, the FCC has asked the Third Circuit Court of Appeals, which in July, 2008 overturned the FCC's half-million-dollar fine against CBS for the incident, to allow the agency to "further investigate" whether CBS willfully avoided using video delay technology which could have prevented Jackson's tit from being broadcast in the first place.

The Third Circuit (and the Second as well) had ruled that the FCC's invocation of the "fleeting profanity" policy, known as the "Golden Globes rule" after singer Bono had used the phrase "fucking brilliant" during the 2003 Golden Globe Awards telecast, was arbitrary and capricious; that the agency had not given ample warning to broadcasters that it was going to change its long-standing policy of ignoring "fleeting instances" of indecent speech during live broadcasts.

However, when the Supreme Court threw out a similar finding by the Second Circuit in the Fox Television case, it remanded both cases to their respective circuits. At issue in both cases would be whether the FCC's mandate, recently reaffirmed by incoming chairman Julius Genachowski, to police the airwaves for "fleeting" indecent content was a constitutionally permitted use of the agency's power, since the Supreme Court's 1975 decision in FCC v. Pacifica Foundation—the "seven dirty words" case—was unclear on the subject.

The FCC's move appears to be an attempt at an end-run around the circuits' constitutional inquiry, because if the agency can show that CBS (or any broadcaster) could legitimately have anticipated that indecent speech or images would come up during its live telecasts, that the networks possessed the technology—known as "tape delay" or "video delay"—to prevent the indecencies' airing but willfully failed to use that technology, the FCC would have a basis to fine the networks separate and apart from both the constitutional question and the question of whether its fine had been arbitrary and capricious.

"The issue was, there was a time delay, and the broadcaster basically said, 'We didn't know it was coming and we missed it; we didn't take action in the short time we had but we didn't know it was coming,'" analyzed constitutional scholar Reed Lee. "There was a lot of talk as the case was working its way up that CBS may actually have known what was coming, and there were certainly insinuations in that direction from the Bush-appointed FCC."

But according to Lee, the future of the case may hinge not on Pacifica, but an earlier case, Red Lion Broadcasting v. FCC, the original "Fairness Doctrine" decision.

"Red Lion is really the root of the problem," Lee opined. "What it said was, it upheld the Fairness Doctrine on the grounds that there's something special about the broadcast medium, something special about the airwaves, and that is that they are limited, intrinsically limited and that that makes them fundamentally different from newspapers and leaflets and every other kind of expressive medium. Now, there are tracts that say the airwaves were never as limited as the Supreme Court was led to believe, or as the nation was led to believe in the Communications Act of 1934, and they're certainly not now because the spectrum can be more efficiently used and there are more spectra available and that sort of thing."

"Given the decided cases and given that Red Lion is still there, there's a lot about the First Amendment issues that scare everybody," Lee continued, "and if a case can be resolved the right way short of constitutional grounds, it's generally true that everybody thinks that's a good thing, always. So looking at the fact-based issues, case-specific issues that might avoid a constitutional question is in general what tribunals are expected to do."

To help them in that regard, the Center for Creative Voices and the Future of Music Coalition, whose members include mainstream producers/directors Steven Bochco, Vin Di Bona, Diane English and Tom Fontana, filed a brief in the Fox Television case yesterday which urged that the case be decided on grounds other than either Red Lion or Pacifica.

"The policies enunciated in the FCC’s Omnibus Order and Remand Order should be invalided under the First and Fifth Amendments," the brief argues. "This Court can and should do so by application of existing precedent under Pacifica. The FCC’s framework for evaluating indecency is hopelessly vague and cannot be reconciled with existing case law. Strict scrutiny is the proper standard for First Amendment review of indecency cases.  No court has construed Pacifica differently. So viewed, the FCC’s policies are unconstitutional, as they clearly chill artistic expression by imposing stiff fines based on standardless and subjective criteria. Intervenors urge this Court neither to question nor to rely on the 'scarcity rationale' articulated in Red Lion because it is irrelevant to indecency regulation, which is at issue in this case... The precedent for broadcast indecency is not Red Lion but Pacifica."

The idea that an appeals court would take another look at Red Lion is exceptionally worrisome to licensed broadcasters, because if that court were to find that broadcast frequencies are no longer "scarce" for whatever reason, that could lead to a questioning of "all broadcast ownership limits, broadcast must-carry rights, spectrum build-out provisions, political content obligations, and the wide range of spectrum policy decisions," the brief argues. "It could also require the FCC either to justify every existing spectrum license under strict scrutiny, or to justify any change to existing licenses under intermediate scrutiny. Either result would throw media, Internet, and spectrum policy into chaos."

Invoking "strict scrutiny" of Red Lion would require the courts to decide if all FCC policies were narrowly tailored to serve a compelling state interest—like the government's maintaining control of those "scarce" airwaves and the content that goes out over them—whereas "intermediate scrutiny" would simply require that the regulations be rationally related to important government interests; a much lower standard and one that would in this case find much greater favor with the large corporations that control the airwaves.

How the Third Circuit will react to the FCC's motion—indeed, whether it even has the power to grant the request, since the Second Circuit's influence over the case at this point derives entirely from the Supreme Court's remand—remains to be seen, as will the arguments yet to be filed by interested parties.

One thing's for sure: There won't be a resolution to the "problem" of "fleeting indecencies" on the airwaves anytime soon.