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.”
It’s a mixed day for broadcasters at the U.S. Supreme Court — but with a limited win for CBS in the case of Janet Jackson’s famously exposed nipple in her performance with Justin Timberlake at the 2004 Super Bowl. Justices upheld a lower court ruling that overturned the FCC‘s $550,000 fine against the network for violating rules that limit indecent broadcasts. It was unclear at the time whether the FCC’s ban on fleeting expletives also applied to fleeting images, Chief Justice John Roberts said — adding, though, that Jackson and Timberlake “strained the credulity of the public by terming the episode a ‘wardrobe malfunction’.” Since then, the FCC has clarified its rules somewhat. “It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” he says. As a result, “any future ‘wardrobe malfunctions’ will not be protected” on the same grounds.
The 8-0 vote by the Supreme Court this morning means broadcast networks have won their long fight against the FCC over current rules governing fleeting expletives and nudity during primetime programming. The justices didn’t rule on the constitutionality of the FCC’s policies, however, meaning that the Court believes the commission does have a say in regulating airwaves and that it can amend its rules for future application. The ruling in today’s case — in which ABC, CBS, NBC and Fox were parties — found that the FCC imposed unfair and excessive punishment over such instances on live and scripted shows, backing previous lower court decisions that threw out the tenents of the FCC’s no-tolerance policy, which includes huge fines against broadcasters. The now-famous incidents in question were a 2003 NYPD Blue episode on ABC that showed a woman’s naked body, and Fox’s telecasts of the 2002 and 2003 Billboard Music Awards, in which presenters Cher and Nicole Richie used profanity during the broadcast. “The commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent,” Justice Anthony Kennedy wrote for the majority. Said ABC in a statement: “We’re pleased with the decision of the Supreme Court regarding the episode of NYPD Blue, and we are reviewing the entire ruling carefully.”