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Tuesday, November 07, 2006

TV Indecency Revisited

On a voluntary remand from the 2nd Circuit of the U.S. Court of Appeals, the FCC on November 6, 2006 gave a second look to its earlier determination that four television programs, "The 2002 Billboard Music Awards," "The 2003 Billboard Music Awards," "NYPD Blue," and "The Early Show", contained indecent and/or profane material. You can read a copy of this latest FCC decision at this link.

This second look comes as the result of broadcasters' complaints that they should have had an opportunity to present their views to the Commission before the Commission issued its prior March 15, 2006 TV indecency decision.

The Commission found that that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cher during the "The 2002 Billboard Music Awards" were indecent and profane as broadcast, but that the complained-of material aired on "The Early Show" is neither indecent nor profane.

The FCC's decision that the use of the word "bullshitter" in "The Early Show", a news program, is not actionable indecency, is most interesting. The Commission has a quandary. On one hand, there is the First Amendment. On the other hand, there is intense political pressure for the Commission to reign in the broadcasts of those words that have unquestionably, for better or worse, become the vernacular of many segments of our society. Thus, the Commission appears to say that it is acceptable for broadcasters to report the news if it includes verboten words, but not OK to entertain a broadcast audience with those same words.

Even with the indecency pass given to news programs, however, there is no doubt that the Commission will sooner or later again tag a news program for indecency. Previously, the FCC had no problem doing so for the San Francisco "KRON 4 Morning News" TV news story on the local stage show "Puppetry of the Penis" in which a sheet covering the relevant body part slipped off.

Thus, despite the apparent news program exception, broadcasters should continue to be wary of any programming that falls under the Commission's broad and fluid indecency/profanity definitions.

The FCC's November 6, 2006 decision reads as if it is a draft of the arguments that the Commission intends to present to the 2nd Circuit in its attempt to keep intact its indecency/profanity regulatory scheme. It makes interesting reading.

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