A significant part of FCC Chairman Kevin Martin's legacy will be the moves he made -- and tried to make -- to crack down on indecency while he was in power. The FCC went after TV broadcasters with much more vigor than under previous leaders, trying to impose big fines for "indecent" content, many of which got smacked down later by courts. Martin himself was a major advocate of a la carte cable plans, in which consumers could simply pay for individual channels, rather than bundles. This represented a significant change of tune for the FCC, which had previously held that a la carte plans would carry too much additional cost to be to consumers' benefit; Martin's interest was, presumably, the decency angle, using the threat of an a la carte mandate to get cable operators to offer so-called family tiers of inoffensive channels. Martin was unapologetic about this in a speech last week at the CES show, when he said he didn't have a problem with his actions to clean up TV, but added that he didn't believe broadband content should be regulated because it's not easily accessible to children, and because its "content you choose to select and pull down" rather than "content you push out".

Huh? This is the same Kevin Martin that wanted Congress to pass a law giving the FCC the ability to regulate decency on basic cable -- TV programming that people pay for and invite into their home. It's also the same guy that backed a quixotic plan to build a free nationwide wireless data network, complete with content filters. This is the sort of doublespeak that we've come to expect from Martin, and won't have us shedding too many tears if he's replaced before his term expires in 2011. Hopefully the next chair will be more interested in issues like competition and technology than in moral issues and buddying up to telcos.

Earlier this year, a court tossed out the FCC's fine on CBS for Janet Jackson's infamous Superbowl half time show "wardrobe malfunction." As the court noted, the FCC's reasoning for the fine showed an arbitrary decision that did not fit with any existing guidelines. However, it appears the FCC disagrees and is now appealing the ruling to the Supreme Court, saying that it was the court, not the FCC, that misapplied indecency rules. Of course, we're still wondering why this matters nearly five years after the incident.

The FCC has a pretty spotty record when it comes to dealing with indecency charges. Basically, it seems to randomly fine stations if it receives enough complaints, even if most of those complaints come from auto-generated scripts from people who didn't actually see the content at all. Of course, perhaps the most highly publicized case where the FCC got involved over what it found to be indecent content was the infamous Janet Jackson Super Bowl wardrobe malfunction. However a court has now ruled that, rather than a wardrobe malfunction, the real malfunction was by the FCC, which had changed its obscenity standards arbitrarily and with no explanation whatsoever in doling out fines over the incident. The court points out that the FCC is allowed to change its standards, but with an explanation and not so arbitrarily. In this case, though, it seemed clear that the response was politically motivated -- and the court has tossed out the fines.

Remember how Fox was simply refusing to pay an indecency fine issued by the FCC? Well, it appears that the FCC isn't too happy about that and has had the Justice Department file some lawsuits against the various Fox affiliates refusing to pay (it turns out a few affiliates did pay). Before filing the lawsuits, the FCC rejected Fox's appeal without comment, but merely by saying that Fox's appeal to the FCC was 14 pages too long and the company hadn't asked permission to exceed the limit. Fox called this response "offensive," apparently resisting the more hilarious option of calling it "indecent." In the meantime, it looks like Fox will have yet another indecency case to fight in court to go along with the Supreme Court case on indecency that also involves Fox.

With the Supreme Court already agreeing to review how the FCC determines indecency in a case involving Fox, it appears that Fox has taken a rather aggressive stance concerning a different case where it was fined: it's simply refusing to pay the fine. The FCC originally fined Fox $1.2 million for an episode of "Married by America" that apparently included clips of a stripper with the "naughty bits" pixelated out. After Fox appealed, the fine was reduced to $91,000, covering just the affiliates where complaints were lodged (which seems pretty weak, since reports have shown that indecency complaints are usually sent in by those who didn't even see the show in question, but were alerted to it by lobbying groups that are pushing for more regulation of TV content). Either way, Fox has simply decided not to pay the $91,000, while also asking the FCC to rethink the fine. Somehow, given Kevin Martin's focus on indecency issues, one doubts he'll play along with this. Perhaps Fox is just hoping that it can stall long enough for a new FCC commish to come into power.

Since Kevin Martin took over the FCC, one area where he's been especially active is in trying to get "indecent" material off television. However, so far, things haven't gone all that well. A recent fine only got the content in question much more attention, and there are serious questions about just how offended people really are by what the FCC calls indecent. Most of the complaints to the FCC seem to be generated by form letter campaigns, pushed by people who never actually saw the content in question (or only saw it afterwards on the web). Last summer, an appeals court smacked down some FCC fines after it pointed out that the FCC seemed rather "arbitrary and capricious" in doling out fines for "fleeting expletives." Since there seemed to be no actual rules on what the FCC considered indecent, the court found it difficult to see how the fines were constitutional. Not surprisingly, the ruling was appealed and the Supreme Court will now take up the issue in a case that could have a major impact on the FCC's ability to fine networks for broadcasting "fleeting expletives."