I'm not someone to light a torch and raise a pitchfork over the FCC, but...

Over the weekend, I got to thinking more about the role of the Federal Communications Commission.

You see, last week, the Supreme Court, in an eight-to-zero ruling, struck down fines that the FCC had issued to Fox Television and ABC Broadcasting. The judges found violations of “fleeting” indecency standards by Fox and ABC to be void. However, the Court sidestepped the broadcasters' protest of First Amendment rights, ruling on the matter as an issue of basic fairness and due process of the FCC fines as 5th and 14th amendment breaches instead.

The Four-Letter Quandary

Before 2004, the FCC banned four-letter curse words only if they had been repeated multiple times. With a stricter policy change, the FCC banned all usages of four-letter curse words, even in usage as a single "fleeting" word during the 10 am to 6 pm daytime broadcast hours.

The FCC later said that it would also ban images of a naked body on broadcast TV if it was shown in sexually provocative ways. Even in the safe harbor time period after 6 pm. The origin for the fine to ABC came from a 2003 episode of the 10 pm time slot drama "NYPD Blue", where the naked butt of actress Charlotte Ross in a shower was shown for several seconds. For Fox it was over the dropping of f-bombs by Nicole Richie and Cher in live awards show telecasts in 2002 and 2003.

But this isn't the 70's anymore. I would think that parents would have a little bit more technological control over what their kids watch on a big screen media-wise. Traditional broadcast television is pretty much a thing of the past now in a cut the cable digital streaming landscape. The idea that it can not be controlled for filtering by a passive parent; like stated in the 1978 FCC v. Pacifica foundation case, is now void. An eight to zero ruling shows this with just this statement of Justice Ginsburg, concurring in the judgment:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), 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.

First-Amendment Considerations

Fox and ABC in particular asked the Supreme Court whether the FCC policy on indecency violated First Amendment rights of broadcast stations and their parent networks. If this was a purely digital cable only / broadcast tower free world, pre-recorded show only landscape I would say yes, it would have been a violation. But last year the 2011 Ownership Survey and Trend Report, part of The Home Technology Monitor research series, revealed that 15 percent of households reported broadcast as their only source of television, about 20.7 million in all. This year, in the updated report, that percentage has now risen to 17 percent. So maybe the FCC is still needed in some aspects on policing extreme indecency?

If the broadcasters wanted to have more freedom over public airwaves they should put more money into making sure parents know how to use their V-Chip. Since 2000, every television larger than 13 inches has come with one. But "live events" like sports, concerts, and awards shows, which are only now slowly moving to services like Facebook, YouTube, Xbox Live, and the web are one of the main reasons people still use broadcast or cable TV services. The V-Chip cannot block or filter live events. It can't stop or blur a random streaker that runs on a football field, or a wardrobe malfunction at half-time, or an award winner that just starts going off like a drunk sailor in a thank you speech.

In the context of live events, I think the FCC has already started putting serious case-by-case consideration of this. Example: 2003 Golden Globe Awards where U2 Frontman Bono uttered the phrase "this is really, really, fucking brilliant" while receiving an award . The FCC found it neither indecent nor obscene, for the word "fuck" was used in the form of an adjective and not a verb. This was considered hilarious to some but it showed a serious delineation and logical contextual usage by the FCC's indecency review board at the time.

Defending the FCC

In the course of things, I'm not someone to light a torch and raise a pitchfork over the FCC. I more or less support them in most things. I actually want them putting a foot in the fight more to protect citizens in other issues of open access spectrum, blocking of regional broadcast monopolies, and limiting of Internet duopolies. So if you want my opinion on this fight, technology will catch up to a point where all live events will be time delayed beyond what they are now. All devices will do streaming eventually.

Broadcast television advertising is still the main profit generator for Live events on broadcasters. Cable is no different in putting those stations on walled garden networks. But some are learning, examples being the NFL, MLB, and NHL with streaming paid for service apps, for multiple platforms, that show all games, even blacked out ones.

Our media system is still built on a transmitting "broadcast" and not transmitting "broadband". So who is to know, I just say let the courts sort it out if any more issues come up in the meantime. The FCC won't be an issue once broadcasters get that and finally move their content to an internet anyone can access to get it, or filter if they are a parent.

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