WASHINGTON, DC — Criticism of the Federal Communications Commission’s (FCC) current broadcast indecency scheme continues to mount, as during the last week alone, two former FCC officials joined the networks in decrying the FCC’s recent indecency-related rulings and enforcement efforts.On November 30th, former FCC officials Henry Geller and Glen Robinson announced that they were among those who had filed an amicus brief supporting CBS’ challenge to the fine issued by the FCC in connection with the infamous Janet Jackson “wardrobe malfunction” incident.
On the same day, the Center for Democracy and Technology (CDT) announced that they had submitted an amicus curiae brief in conjunction with Adam Thierer, senior fellow and director of the Center for Digital Media Freedom at the Progress and Freedom Foundation (PFF), arguing that “courts should not allow the FCC to expand its regulatory authority even as the original basis for that authority withers.”
Geller, who served as the general counsel and special assistant to the chairman of the FCC in the 1960’s, and Robinson, a FCC commissioner in the 1970’s, argue in their brief that the FCC’s indecency enforcement has devolved from a more restrained effort to regulate “clear, flagrant instances of indecency language” into an expanding campaign directed at “ordinary radio and TV programming.”
“We urge the court to take this occasion to hold that the Commission’s expansive and aggressive new campaign of enforcement goes beyond the limitations assumed by the Supreme Court when it affirmed the FCC’s indecency doctrine in 1978,” the former FCC officials state in the brief, submitted to the Third Circuit Court of Appeals in Philadelphia, adding that the current enforcement “violates the First Amendment.”
Geller and Robinson filed similar briefs earlier this year, in support of Fox and CBS’ challenge to four indecency rulings issued by the FCC in March.
“The FCC’s increasingly aggressive attempts to control speech on the radio and television are on a collision course with a wave of technological change that will soon render the Commission’s involvement in these matters obsolete,” noted CDT staff counsel John Morris. “As the distinctions between broadcast and digital media fade into history, policy makers, technologists and civil libertarians must work together to ensure that the light-touch approach to Internet communications, and not the outdated rules for broadcast, becomes the standard for regulation in the converged media world.”
The PFF’s Thierer observed that with a “a wide diversity of parental control tools now at their disposal, families have the ability to construct and enforce their own ‘household standard’ for acceptable media content in their homes. Consequently, government does not have a compelling interest in imposing an amorphous ‘community standard’ on Americans since there are less restrictive ways for families decide for themselves what should and should not be seen or heard in their homes.”
Both the Fox and CBS cases are being considered in federal appellate courts (2nd and 3rd Circuit). Regardless of the outcome of the cases, the prevailing parties can count on the opposing party petitioning the U.S. Supreme Court to weigh in on the matter, setting up the possibility of the country’s highest court setting more defined limits on the scope of the FCC’s power to regulate broadcast decency.
