The F-Bomb

[heydaybegone]

SO...here it comes...exciting radio? Unless it refers specifically to TV...a ruling (which will soon hit the courts again, I'm sure) allows George Carlin's dream to occur on radio!!

Let the fireworks begin!!

HDBG

And how many will actually allow it to occur?

 

[TheBigA]

I don't know if you read the court decision, but it doesn't do away with indecency rules. It just said that the one they have is vague. I have no reason to believe that anyone will change their policies. At the end of the day, radio stations don't want to offend their listeners or their advertisers.

 

[Seltzer]

If I'm a "responsible" broadcasting, even if there were no indecency rules, I would put them in place at my station. I write the checks; I can make the rules. I'd expect this to be the case, with the exception of some active rock stations looking the other way.

I think if you polled the country, a large majority of listeners would say they don't want their favorite personalities dropping the F Bomb. There's really no need for it and if this is the best the industry could come up with to make radio more exciting, that's not good either.

 

[JustPastBuffalo]

Keep in mind, the FCC opinion centered on "Fleeting Indecency." (Good name for a rock band, BTW.)

 

[JustPastBuffalo]

Keep in mind, the FCC opinion centered on "Fleeting Indecency." (Good name for a rock band, BTW.)

CORRECTION, should read "COURT'S OPINION."

 

[aaronread]

This decision technically only impacts the states covered by the 2nd Circuit Court of Appeals: Connecticut, Vermont and New York. IANAL, but I think technically it vacates the entire indecency policy of the FCC as it pertains to those three states...however, NO lawyer would advise their clients in those states to suddenly start acting like there is no indecency policy for several reasons:

1. There's still active court cases in other circuit courts dealing with other aspects of the FCC's indecency policies, so tremendous uncertainty remains.

2. The 2nd court's decision almost certainly will be appealed to the Supreme Court. Or, possibly, the FCC will draft a new policy and run it past the 2nd court again.

3. The FCC will almost certainly ask the 2nd court for a stay while they draft their appeal / rewrite the policy, and the court is likely to grant it. Frankly I'm surprised we haven't seen the stay request already, but I'll bet we'll see it soon. Unless the FCC already has a new policy ready to present in which case it'll be moot.

4. Remember that the court specifically said the FCC has the right to regulate indecency; it was just that the current policy on fleeting expletives was not constitutional vis a vis the First Amendment. So even if the policy is currently not valid in those three states, the FCC could draft a new policy AND, potentially, make it retroactive.

Again, IANAL!!! There's been a cracking good discussion on the CBI listserv about this, though.

 

[Bob1370]

So, in a nutshell, CBS will not be able to spell out in plain English the title of their new Thursday night William Shatner comedy now known (and promoted) as $#!+ My Father Says...at least not yet.

The interesting thing is, if the indecency policy were scrapped as unenforceable, and nothing could be made to replace it that would fit within the First Amendment, the republic isn't going to die. Canada has much looser, European-style rules that allow cuss words to be said in passing, in the manner of normal conversation, without sanction, on radio and TV. The CRTC permits hard-R content on TV all during prime time and NC-17 content after 10 PM. But you don't see that prerogative being abused in practice; broadcasters still tread pretty gently and avoid expletive-laden programming on both radio and TV, regardless of the hour, out of deference to audience and advertiser taste. If the rules are loosened here, the same will no doubt apply.

One thing Canada has done, that the US will never do, is ban content that's sexist, racist or insulting to ethnic and religious groups--and they take it seriously and enforce it. Stations have been fined and put on probation, and stations which are repeat offenders have even been put permanently out of business, their licenses revoked and facilities shut down for good. (It happened to the #1 station in Quebec City a few years ago, for repeated content a lot like what Imus did back in the day on WFAN.) There are a few too many powerful people in Congress who might find their own public over-the-air comments subject to that kind of sanction, to allow that to be enacted here (although it might clean up some of the pollution of the public dialogue).

 

[TheBigA]

One thing Canada has done, that the US will never do, is ban content that's sexist, racist or insulting to ethnic and religious groups--and they take it seriously and enforce it.

The interesting part about that policy is it's equally vague and can be launched by just one listener complaint, same as the US indecency rule. I saw a story where a free-lance news reporter was hit by the rule for a story he did that was interpretted by someone as insulting to a group. It took months of wrangling with the bureacracy to prove that he was simply reporting a story.

 

[Savage]

aaron: if I ever get in trouble in Geneva, remind me to not call you to represent me in court.

The Second Circuit decision does not "vacate" anything from the FCC. Only court orders are "vacated." And it certainly does NOT invalidate the whole FCC indecency policy. The decision specifically deals, as Jim has observed, with "fleeting indecency" - by definition, accidental or spontaneous utterances in LIVE broadcasts, such as phone or other interviews, sports events, and/or other unforseen or unforseeable instances. Contrary to your suggestion the decision is strictly confined to the narrowest of circumstances as opposed to being a wide-ranging decision. Anyone stupid enough to encourage their morning-circus clowns to start slinging F-bombs and overt sexual references can expect to get hefty fines just like before. And these would stick.

Maybe the Second Circuit decision will be appealed to SCOTUS - and maybe it won't. It's a common misconception that appeals to the Supreme Court follow in due course, any controversial or otherwise high-profile ruling. In fact the SCOTUS can decline to hear any case; it picks its docket at the Court's sole discretion. Actually, my bet would be that SCOTUS will let the FCC hash this one out, and decline the indecency case. There's no critical overarching Constitutional issue here needing the High Court's interpretation.

And as long as we're acknowledging the US Constitution - admittedly, under this administration, a trampled and disused concept - no, the FCC cannot "draft a new policy and make it retroactive." To do something like that is per se Unconstitutional. Retroactive illegality is what's called an ex post facto law. Any such enforcement efforts would instantly be struck down.

 

[aaronread]

Bob, I sure as hell hope you're not calling me to represent you: I said I wasn't a lawyer! ;D

And actually the FCC can indeed draft a policy and make it retroactive. That was a major part of what the court case in question was about! The FCC decided, retroactively, to enforce the (vague) indecency rules by a new "fleeting expletive" standard - as in, the decision to enforce under a new standard was made after the expletives had already gone out on the air.

Now I don't know if that particular aspect was addressed in the 2nd Court's judgment or not, and it's too late at night for me to go digging. But I would say it wasn't instantly struck down in this case. And as far as I've heard, the ex post facto aspect was not the key factor in the decision: it was the inherent vagueness of the standard. But again, IANAL and I haven't researched this case extensively enough to know for sure.

I know that government action can be retroactive, though - the blankety-blank fees and recordkeeping requirements (set by the US Copyright Board) for webcasting most definitely fall under that category...as SoundExchange is fond of reminding us.

I personally think the case will be appealed, FWIW. I don't have any real lawyerly info to base that on, just a gut feeling. But whether or not the SCOTUS chooses to hear it is another question. I agree that if an appeal is filed, the SCOTUS will probably refuse to hear the case. Like you said: the question at hand is not Constitutionality - the 2nd Court did specifically say that the FCC has a Constitutional ability to regulate indecent material on the airwaves. It was that the policy they had in place for it was not Constitutional. (I'm paraphrasing here, and probably badly, so forgive me)

As to the narrow vs. wide interpretation, I'm going on what I've seen reported. And while I freely admit that journalists can be notorious for oversimplifying complex things in order to have a more sensational story...what I've seen reported is that the entire policy is effectively nullified by this decision. How so? I'm not sure, but I think it's mostly just because there's so much uncertainty surrounding everything that how could the FCC possibly attempt to enforce any indecency rules until the matter is settled? Any attempt to do so would invariably result in just another court challenge and the 2nd Court's new precedent would undoubtedly be cited...quite possibly successfully so. Courts aren't slaves to precedent, but they do tend to take it pretty seriously.

 

[Savage]

Well, the Sound Exchange's retroactive fee assessments are an accounting exercise - kind of like federal tax carrybacks and carryforwards. It was all part of a legislative-legal settlement of a royalty payment controversy, which is in no way to be confused with making something illegal retroactively.

I think it's safe to state that anyone who hands a "blank indecency check" to the morning team with the admonition, "okay guys - now have fun and generate street talk, but make sure you (chuckle) keep the F-bombs off the air - if you can," is going to find a very nasty little surprise in the mailbox from the Friendly Communications Commissars. Will the FCC simply stop enforcing the indecency rule pending further possible litigation? Bet on this at your peril.

The vagueness of the FCC indecency policy is the problem. Actually, it's a fascinating legal conundrum. If the rules are clearly defined within bright lines, you run into First Amendment problems. If you keep the rules flexible enough to be defined by "community standards" with variable factors (such as time of day and likely audience, as is currently the case) you veer into the vagueness problem. Frankly I don't see a convenient solution that will please everyone affected.)

(We don't need to worry about anyone representing me in Geneva City Court anyway. I've been ordered to stay out of town ever since that embarassing incident several years back involving the hallway wine taps at Belhurst, a length of garden hose and a cheerleading squad. Seems to me Alan Bishop was there too, but my memory of that night is somewhat hazy.... ;D)