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Supreme Court will review FCC policy

WASHINGTON—When the Supreme Court last took on a broadcast indecency case in 1978, there was no such thing as the Internet, the cable television industry was just starting to catch on and kids looking for a cheap thrill would sneak into an R-rated movie.

The world of media has changed a lot since then. The Supreme Court on Monday decided to hear a case that may decide whether regulation of broadcasters should change too.

The high court will hear arguments in a case over whether the government can ban “fleeting expletives,” one-time uses of familiar but profane words.

The case grew out of decision by the Federal Communications Commission in 2006 that two broadcasts of the “Billboard Music Awards” show were indecent, though the agency levied no fines. Cher uttered one fleeting expletive beginning with “F” and Nicole Richie uttered a variation of the same word and another one beginning with “S.”

Fox Broadcasting Co. and others appealed the decision, saying that the agency had changed its enforcement policy without warning and that the new ban was unconstitutional.

A federal appeals court in New York agreed, 2-1, throwing out the ban and sending the case back to the agency, which appealed to the Supreme Court.

FCC Chairman Kevin Martin told The Associated Press Monday he was pleased the justices are stepping in. He said the appeals court had “put the commission in an untenable position” by giving it the responsibility to enforce indecency rules but not the tools to take action.

Still, there was widespread surprise that the court took the case, and there was speculation the justices might take a broader look at the issue of indecency in a media environment that has changed dramatically over the past three decades.

Fox Broadcasting Co. said the case gives the company “the opportunity to argue that the FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing.”

The FCC regulates speech on radio and television stations, but not the Internet, cable and satellite TV.

The last time the court heard an indecency case—FCC v. Pacifica in 1978—broadcast was king.

“The Pacifica case was obviously adopted in a very different era and a very different time,” said Andrew Schwartzman, president of the Media Access Project, who was one of those who predicted the court would not take up the current case. “Allowing for the fact that I have been completely wrong so far, I think it is highly unlikely that the court will venture in to address how this relates to other media.”

Schwartzman’s group represents the Center for Creative Voices in Media. He argued that the current policy is “incoherent and overbroad and has “chilled the creative process for the writers, directors and producers we represent.”

Tim Winter, president of the Parents Television Council, an anti-indecency watchdog group, said he was “delighted” by the court’s decision, but he also noted there was no guarantee it would uphold the FCC’s policy. “Obviously there’s a risk,” he said.

But any argument that the media environment has changed to such a degree that the broadcast rules are no longer relevant seems unlikely to get far, he said.

“Despite the proliferation of various forms of media over the past 25 years, broadcasting is every bit as pervasive today as it was at the time of the Pacifica decision,” he said.

The current enforcement climate regarding expletives is uncertain. The FCC has been unable to act on hundreds of thousands of complaints while the case is in limbo, according to its appeal to the high court. Both the chairman and broadcasters said Monday they were seeking clarity from the court.





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