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Broadcasters Want Supreme Court to Bring Certainty to Indecency Rules

Enforcement in limbo for years now
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At long f---ing last, the TV business may finally get some clarity on the Federal Communications Commission's updated indecency rules, which have kept the networks—and the regulator itself—tied up in knots since 2004.

Anything has to be better than the perpetually confusing status quo, in which Saving Private Ryan, which included lots of soldiers swearing in the heat of battle, was OK, but The Blues—a documentary that Martin Scorsese produced for PBS which included a few obscenities—was not, and no one could figure out why a single F-bomb that no one saw coming was indecent.

The consensus in Washington, D.C. legal circles is that the Supreme Court is likely to review of two Second Circuit Court of Appeals decisions in cases involving Fox and ABC. And that could be good for both the FCC and broadcasters.

"The networks would welcome some clarity. Right now you have the Second Circuit saying the [fleeting expletive rule] is unconstitutional. But if you're in other jurisdictions, that doesn't help you," said Scott Flick, a partner with Pillsbury Winthrop Shaw Pittman, who has represented several broadcast stations and networks and is the former Washington counsel for Univision Communications.

The FCC, joined by the Obama administration, has asked the Supreme Court to decide whether the Second Circuit was right to declare the fleeting expletive rule (under which a single utterance of an obscenity, used in any context, is considered indecent) unconstitutional. When the FCC first tried to apply the rule—which was adopted in 2004, under then-Chairman Kevin Martin—broadcasters balked, tying the FCC up in litigation that has left it essentially unable to enforce its indecency rules over the past 7 years.

"Right now, if you are a broadcaster that has an indecency complaint filed, you can't get anything done," said Marissa Repp, whose Repp Law Firm represents stations before the FCC. 

Most of all, broadcasters hope the Supreme Court will agree with the Second Circuit and throw out the fleeting expletive rule.

"We believe that the Second Circuit decisions were correct and should not be overturned," ABC said in a statement provided to Adweek.

But even if the high court rules to keep the rule, broadcasters might be OK with that, too, if only because then they'd know what the rules are. 

"I think most broadcasters would rather the Supreme Court look at it now because the other option, to start all over on indecency policy, would be years down the road." said Kurt Wimmer, a partner with Covington & Burling, whose clients include the National Association of Broadcasters, Gannett, and The Washington Post Co.