Circuit Court Delivers Blow To FCC's Push To Clamp Down On TV Cursing

from the new-legal-strategy-time dept

Over the past few years, the FCC’s been increasing its efforts to regulate “indecent” programming — both in terms of what it wants to regulate on broadcast television, but also by expanding the scope of its regulation to include cable. The FCC’s indecency push (which it tries to justify with complaint stats inflated by form letters from activist groups) has been met with a lot of resistance from broadcasters, but also by courts who aren’t happy with the Commission’s vague guidelines and inconsistent policies. Yesterday, the FCC got a pretty significant smackdown from the Second Circuit Court of Appeals, which upheld the broadcasters’ argument that its policy on “fleeting expletives” was invalid because it was “arbitrary and capricious”. Essentially, the court said that the FCC can’t simply change its stance without offering valid justification, and reversing 30 years of precedent requires a “reasoned basis” — apparently “because we can, and ’cause we feel like it” isn’t sufficient. While the court limited its ruling to the question of fleeting expletives, it added that it was skeptical the FCC could craft an argument that could pass constitutional muster, while also noting, like previous courts, that plenty of tools exist for parents to protect their children from objectionable programming. It seems likely that the FCC will appeal the case to the Supreme Court, but given the depth of the Circuit Court’s opinion, a favorable outcome doesn’t seem likely. As Adam Theirer notes, should the the wider constitutional issues come up in the appeal, the FCC could lose all of its powers to regulate indecent programming on public airwaves.

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Comments on “Circuit Court Delivers Blow To FCC's Push To Clamp Down On TV Cursing”

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Anonymous Coward says:

Re: And to think...

I think there is always a bill floating around Congress and/or state legislatures trying to regulate the Internet, prohibit flag burning, requiring schools to post the 10 commandments, and every other half-witted idea someone thinks will get them brownie points with some special interest group.

Fortunately most die quiet deaths. Unfortunately most of them get resurrected in a slightly modified form the next legislative session.

FCC isn't Fed Censorship Comission says:

Re: Re: Fuck the FCC.

the FCC may be overstepping it’s bounds with cable regulation.

however the FCC isn’t worthless. they do provide a standardization for communication technology. and that’s great. although you could argue that IEEE does a standup job with communication standards as well.

and while i feel that some things on TV (cable) aren’t “right” i feel that as a subscripiton service, i can’t force them to produce content i want to see.

many cable compines are offering “al a carte and ‘like’ programming” packages. you can get all your bible thumping w/o any of the “gore n’ porn” channels, or get your sports w/o all the shopping stuff.

now, people who say the FCC should have control over cable, i ask this. should there be a governmental agency that regulates what condiments go on hamburgers? if i go to my burger joint, should i have to buy a burger with condiments i don’t like? coz now i can say yes mor emustard, no onions/pickles please. if the burger isn’t made, i won’t buy it again.

just like cable…

Myself says:

As it should be.

“…should the the wider constitutional issues come up in the appeal, the FCC could lose all of its powers to regulate indecent programming on public airwaves.”

Which would be the most overwhelmingly positive thing to happen in a long time, both to the airwaves and to the FCC.

Consumers and the market would be free to decide what belongs on the air, and the Commission would be free to focus on technical matters and spectrum ransom.

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