Bloomberg News

FCC Back at Culture-War Center After ‘NYPD Blue’ Ruling

June 22, 2012

A U.S. Supreme Court decision tossing out sanctions against Fox and ABC left regulators with the power to punish broadcasters for airing nudity and expletives, and writers and performers groping for clarity.

“Creative media artists now likely face many more years of uncertainty as to what precisely is or is not indecent” under U.S. policy, Jonathan Rintels, executive director of the Center for Creative Voices in Media, said in an e-mailed statement yesterday.

Justices, in an 8-0 ruling yesterday, didn’t address the constitutionality of the Federal Communications Commission’s indecency rules, while throwing out almost $1.24 million in fines against affiliates of Walt Disney Co.’s ABC network and a notice of liability against News Corp. (NWSA:US)’s Fox Television Stations Inc. that didn’t carry a monetary penalty.

The FCC now must decide how vigorously to enforce its rules, knowing there may be new court challenges, as it faces pressure from its Republican minority members and lawmakers to prevent children from seeing nudity and hearing expletives. The agency hasn’t brought new indecency cases since Chairman Julius Genachowski, a Democrat, took office in 2009 following two Republican chairmen.

Robert McDowell, a Republican FCC member, called for the agency to rule on a backlog of almost 1.5 million indecency complaints about 9,700 programs. “The commission has a duty to act quickly to outline its indecency standards,” he said in an interview.

Genachowski, in an e-mailed statement yesterday, said he was reviewing the high court’s decision.

“The FCC will carry out Congress’s directive to protect young TV viewers,” he said.

‘Sizeable Backlog’

Genachowski, in a letter released by the House Energy and Commerce Committee last year, said court action had slowed progress toward eliminating “the sizeable backlog we inherited.” Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.

Senator Jay Rockefeller, the West Virginia Democrat who is chairman of the Commerce Committee, said the decision is “a victory for those of us who believe that we must be doing more, not less” to protect children from indecent programming.

“I would remind executives in New York and Hollywood that they should act responsibly when it comes to the entertainment they are sending, via the public’s airwaves, into family rooms across the country,” Representative Fred Upton, the Michigan Republican who is chairman of the Energy and Commerce Committee, said in an e-mailed statement.

NYPD Blue

The Supreme Court ruled the FCC didn’t give fair notice before punishing Fox for airing expletives on two live awards shows and the ABC stations for showing a naked woman on the drama series “NYPD Blue.”

In his opinion for the court, Justice Anthony Kennedy said the 2004 policy couldn’t be applied to the Fox and ABC shows because they were aired before the fleeting-expletive rule was announced.

Broadcasters had wanted more, asking the court to invalidate the FCC’s policy as being unconstitutionally vague, and to overturn decades-old rulings that subject over-the-air programming to stricter rules than cable or satellite shows.

The topic is divisive and unrelated to jobs, so Genachowski won’t give it the priority of economic issues such as making more airwaves available for wireless Internet use, Paul Gallant, a Washington-based analyst with Guggenheim Securities, said in an e-mailed statement.

Nicole Richie

Programming sent over the air won’t change because consumers and advertisers expect broadcast fare to be less explicit than shows on cable or satellite TV, which isn’t covered by the indecency rules, Dennis Wharton, a spokesman for the National Association of Broadcasters, said in an e-mailed statement.

The Supreme Court case concerned incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F--- ’em. I still have a job and they don’t.” A year later, Nicole Richie said, “Have you ever tried to get cow s--- out of a Prada purse? It’s not so f-- -ing simple.”

In the “NYPD Blue” case, a 2003 episode shows actress Charlotte Ross’s buttocks as she disrobes for a shower and later a frontal view, with her hands covering her breasts and pubic area, after a young boy inadvertently walks in.

Wardrobe Malfunction

Yesterday’s ruling may affect the FCC’s effort to levy a $550,000 fine against CBS Corp. (CBS:US) for the split-second exposure of singer Janet Jackson’s breast during the 2004 Super Bowl halftime show.

As a result of FCC policy, broadcasters airing live programming are forced to use time-delay technology and make difficult choices about whether to cover certain events at all, according to a brief filed with the court by the broadcasters’ association. One broadcaster spent about $200,000 to outfit its 24 stations with delay technology, according to the brief that didn’t identify the broadcaster.

“The court recognized that the case has significant First Amendment implications that require notice to be clearer,” Dan Berger, a spokesman for Fox, said in an e-mailed statement.

Comcast Corp. (CMCSA:US)’s NBC and CBS Corp.’s CBS joined ABC and Fox in opposing the FCC indecency crackdown.

The case is FCC v. Fox Television Stations, 10-1293.

To contact the reporters on this story: Todd Shields in Washington at tshields3@bloomberg.net; Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Bernard Kohn at bkohn2@bloomberg.net; Steven Komarow at skomarow1@bloomberg.net


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