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FCC Moves to Clarify Broadcast Indecency Policy

Notice follows last year's Supreme Court decision in Fox and ABC cases

Baltimore Ravens quarterback, Joe Flacco.

At long [insert expletive here] last, the Federal Communications Commission is doing something about the backlog of broadcast indecency complaints that have hounded the agency since the Supreme Court tossed the rules back to the agency last June.

In what could be a prelude to a major change in broadcast indecency policy, the FCC is asking for public comment about whether it should focus only on egregious cases, the approach outgoing chairman Julius Genachowski favored when the high court ruled the FCC failed to give Fox and ABC fair notice prior to network broadcasts of fleeting expletives on Fox and brief nudity on ABC.

Going all the way back to George Carlin's Seven Dirty Words (memorialized in a case known as Pacifica), the FCC's notice asks whether or not it should change its indecency policy to treat "fleeting" or "isolated" cases of expletives and nudity differently than it treats cases where the uses are deliberate and repetitive.

By focusing only on the egregious cases, the FCC said it reduced its backlog by 70 percent—from 10,000 cases and 1.48 million complaints soon after the June 2012 Supreme Court decision to 5,538 cases and 465,544 complaints in February 2013.

Though the backlog shrank, the public notice will no doubt be controversial. It's sure to rile up conservative groups like the Parents Television Council that will not be satisfied with anything less than a strict moral code. Upon hearing the news, PTC president Tim Winter said he was "shocked" that the FCC already dismissed 1 million complaints under the proposed egregious standard.

"Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course that will guarantee nothing but a new rash of new litigation," Winter said.

Broadcasters, on the other hand, are likely to urge the agency to take a more liberal approach to "fleeting" incidents that they sometimes have little control over, such as Baltimore Raven's Joe Flacco's use of the f-bomb following his team's Super Bowl win. At the very least, they will likely welcome a new examination of the rules that have caused confusion and numerous court cases.

"For those who loudly proclaim that the FCC has failed in its duties as a 'content cop,' as well as broadcasters struggling to figure out on a minute-by-minute basis what program content might cross the FCC's invisible indecency line, a fresh look at the issue will be welcome," wrote Scott Flick, a partner with Pillsbury Winthrop Shaw Pittman, which represents some broadcast groups. 

The first round of comments are due in 30 days after the public notice is published in the Federal Register, with reply comments 60 days after publication.

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