When they talk to Wall Street, broadcast moguls love to boast about their financial power and unparalleled ability to reach mass audiences. But the FCC heard a different story this week from networks as they challenged the agency’s efforts to minimize indecent programming. Companies say that the rules are too vague, that they clash with broadcasters’ First Amendment rights, and that parents can control what their kids watch. But ABC, CBS, Fox, and NBC also say that rules are archaic because the networks have lost so much cultural clout. Fox says in an FCC filing, “Americans today, including children, spend more time engaged with non-broadcast channels delivered by cable and satellite television, the Internet, video games and other media than they do with broadcast media.” In a separate filing, NBCUniversal observes that ”Broadcast TV is not a uniquely pervasive presence in the lives of 21st Century Americans.” Broadcast network affiliates’ total day share of viewing “was just 28 percent in the 2010-2011 television season – compared to the 53 percent viewing share held by ad-supported cable programming networks.” CBS also notes that “the day when a child watching television was almost certain to be watching broadcast television has long since passed.”
The 3rd U.S. Court of Appeals has ruled for a second time that the FCC didn’t have the right to fine CBS Corp for airing Janet Jackson’s famed wardrobe malfunction during the Super Bowl halftime show in 2004. The commission fined the network $550,000 for “fleeting” indecency after it showed Jackson’s bared breast for less than a second as part of her outfit was torn away by co-performer Justin Timberlake during the performance, which was seen by 89.9 million viewers. CBS appealed the fine, and the appeals court voided it in 2008. The case went to the Supreme Court, which vacated the judgment and sent it back to the appeals court. Today’s ruling was made on the same grounds as the first one: that the FCC didn’t give broadcasters fair warning about a shift in indecency enforcement. ”While we are disappointed by the court of appeals decision, we note that the court overturned the FCC’s 2006 forfeiture order on narrow procedural grounds,” the FCC said in a statement. “In the meantime, the FCC will continue to use all of the authority at its disposal to ensure that the nation’s broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves.”
Eight years after the infamous NYPD Blue episode featuring actress Charlotte Ross’ buttocks aired and two years after FCC slapped the ABC stations with a $1.4 million fine over the racy scene, the penalty has been tossed by a federal appeals court. The 2nd U.S. Circuit Court of Appeals today threw out the fine stems from its July ruling that struck down the FCC indecency policy, claiming that it “violates the First Amendment because it is unconstitutionally vague.” In a statement, ABC said it was “pleased” with the court’s decision. “We have always believed that this 2003 episode of the long-running and acclaimed series NYPD Blue was not indecent and that the fines were unwarranted and unconstitutional.” UPDATE: The Parents Television Council watchgroup group condemned the ruling. “Once again the Second Circuit has proclaimed that it knows better than the Supreme Court, the Congress, the FCC, and the overwhelming majority of the American people. Regardless of one’s political viewpoint – left, center or right – this may well be the most egregious example of ‘legislating from the bench’ that our Federal Court system has ever witnessed,” PTC president Tim Winter said.
After coming under scrutiny in the past couple of months, The Parents Television Council today released its first study of the year, which claims a sharp rise in the frequency and harshness of profanity on primetime broadcast TV in the past 5 years. The report, titled A Habitat for Profanity: Broadcast TV’s Sharp Increase in Foul Language, examines the broadcast networks’ lineups during the first two weeks of the season in fall 2010 and fall 2005. It finds a 69.3% profanity increase, with the greatest rise in harsh profanity occurring at 8 PM and 9 PM. “Our analysis of the first two weeks of this still-new fall television season shows a disturbing trend that shocked even us,” PTC President Tim Winter said. “Profanity is far more frequent and the profanity itself is far harsher than just five years ago. Even worse, the most egregious language is being aired during the time slots when children are most likely to be in the audience.” Here are several other findings:
- Use of the bleeped or muted f-words increased from 11 instances total in 2005 to 276 instances in 2010 – an increase of 2,409%.
- Use of the bleeped or muted s-word increased from 11 instances in 2005 to 95 instances in 2010 — an increase of 763%.
- During the family hour, instances of the f-word increased from 10 in 2005 to 111 in 2010. Use of the s-word during the family hour increased from 11 instances in
The legal fight over so-called fleeting expletives continues. The FCC today filed an appeal of the July ruling by a three-judge panel of the 2nd Circuit Court of Appeals in New York that tossed the agency’s indecency policy, claiming that it “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” The FCC policy was put in place after NBC’s broadcast of the 2003 Golden Globes Awards, in which U2 lead singer Bono used the phrase “f**king brilliant” in his acceptance speech. The FCC said at the time that the F-word in any context “inherently has a sexual connotation” and can lead to enforcement. Fox challenged the rules after becoming an early victim when the FCC found its 2002 and 2003 Billboard Awards broadcasts violated the new policy with profanity use onstage by Cher and Nicole Richie. In its appeal, the FCC said the court’s ruling overstepped its bounds as it didn’t address the constitutionality of banning fleeting expletives but “instead invalidated the agency’s overall approach to indecency enforcement.”