6-21-2012
After all the fancy language and statements from the folks in Washington, we turned the indecency topic over to Broadcast attorney John Garziglia who says Thursday's Supreme Court decision did only one thing. "It holds that neither Fox nor ABC had sufficient notice that the fleeting use of profanity during an awards show, or the seven seconds of nude buttocks during a drama, would be deemed indecent under the FCC?s indecency restrictions. This was the easy way out."
Here's more from Garziglia on the Thursday court ruling (all of which you can read HERE).
"The Supreme Court decision specifically does not find the FCC?s indecency regulations unconstitutional nor unable to be otherwise enforced by the FCC. The Supreme Court decision probably does not impact the majority of the indecency cases that remain pending before the FCC."
"The Supreme Court has punted in deciding an issue that was squarely before it. That issue is the constitutionality of the entire scheme of the FCC?s regulation of broadcast indecency. This decision is a victory for the censors ? those who would profess to know better than you and I what we should listen to and watch on radio and television. Radio stations must continue to fear running live events for the prospect that one of the more commonly-used verboten words in our vernacular will find its way on the air. Television stations must not run uncut versions of award-winning movies. Certain un-definable on-air speech and depictions may continue to cost broadcast stations millions of dollars in fines or loss of licenses. Broadcasters? speech remains chilled."
"The FCC currently has hundreds of license renewal applications held due to millions of indecency complaints. Ungranted license renewal applications can often keep a station from being sold or re-financed. Now the FCC must work its way through these complaints and determine whether the indecency allegations are valid."
"Some years, possibly decades, from now, after many more years of broadcast speech continuing to be chilled, the issue of the constitutionality of the FCC?s broadcast station indecency regimen will once again be before the Supreme Court. It will be then that the concurrence to today?s decision may haunt the then justices. Justice Ginsburg in the concurrence that Justice Thomas joined to today?s decision simply states: ?[i]n my view, the Court?s decision in FCC v. Pacifica Foundation ? was wrong when it issued. Time, technological advances, and the Commission?s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.?
"Eventually the FCC?s indecency regulations will be held to be unconstitutional, but not this year. Broadcasters for now continue to remain 2nd class citizens under the 1st Amendment."
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and ABC?s broadcast of brief nudity during an NYPD episode would trigger enforcement action and, therefore, the indecency standards as applied to these broadcasts were impermissibly vague. The FCC must expeditiously implement the Court?s decision to put an end to years of litigation and uncertainty regarding the Commission?s regulation of indecent content on America?s airwaves. As a matter of good governance, it is now time for the FCC to get back to work so that we can process the backlog of pending indecency complaints ? which currently stands at just under 1.5 million involving about 9,700 TV broadcasts. Some of these complaints date back to 2003. We owe it to the American public and the broadcast licensees involved to carry out our statutory duties with all deliberate speed. I look forward to working with the Chairman, my Commission colleagues and FCC staff to reduce the backlog of indecency cases, along with more than 300 license renewal applications that have remained pending in light of this litigation, as soon as possible.?
Pai Statement
