“Go networks. Go networks.”

This is interesting. The networks all went after the FCC before the Supreme Court yesterday over the commission’s ridiculous fines for language and nudity. Broadcasting & Cable reports that both in person and (ED. NOTE: There was no hearing. Thanks to Steve in the comments.) in briefs, the networks were unified in their belief that it’s time for the court to reconsider earlier rulings in this regard, because the communications world has changed so much. It’s brilliant, and I hope the court comes down on their side. How can they not?

Fox is the network “on trial.” The hearing was filings were over a brief filed by the FCC after a lower court ruled with Fox that the FCC’s crackdown on cussing during the Billboard Music Awards was “an arbitrary and capricious change in policy that broadcasters were not sufficiently warned about.” The Supreme Court agreed in March to hear the case. Meanwhile, in a brief with the court, NBC, CBS and ABC called the FCC’s indecency-enforcement régime “unfathomable and indefensible.” Good for them.

While the FCC wants the court to rule narrowly on this one instance of fleeting profanity, the networks in their filing said it is time for the court to rethink the indecency-enforcement régime altogether.

They argued that broadcasting is neither uniquely pervasive nor uniquely accessible to children — concepts they said have been “eviscerated” in the 30 years since the Supreme Court used them to uphold the FCC’s indecency enforcement authority in the Pacifica decision.

The networks went even further, taking aim at the Red Lion decision, in which the High Court upheld content regulations — in this case the jettisoned “Fairness Doctrine” — using the spectrum-scarcity rationale.

“Whatever its validity when Red Lion affirmed it in 1969 or in 1987 when the commission rejected it without reservation, today the scarcity rationale is totally, surely and finally defunct,” the networks said.

“The antiquated notion of spectrum scarcity can no longer serve as a basis for according only ‘relaxed scrutiny’ to content restrictions in the broadcast media,” they argued. “Nor can the outmoded premises of Pacifica — that over-the-air broadcasting is ‘uniquely pervasive’ or ‘uniquely accessible to children.’ As with any other content-based restriction of speech, the government should be made to demonstrate that the remand order serves a compelling state interest and is the least restrictive means available to achieve that interest. It cannot do either.”

I think the FCC has outlived its usefulness and needs to go. In recent (conservative) years, the appointed body has been used by faux-concerns of the extreme right, such as the Parent’s Television Council, for political leverage. The networks are right. Times have changed, and it’s unfairly punitive for broadcasters to pay the price for the political gain of somebody else.

We don’t need an appointed group of bureaucrats to function as our nanny.


  1. Fox’s views did not surprise me, because they are substantially the same as it argued at the circuit court (and you cannot bring up new arguments before the Supreme Court). But the thing that caught my eye in your post was references to “in person” and to a “hearing.” How could that be, I wondered. The Court is not in session and won’t be until the first Monday in October. I checked your source and the Broadcasting and Cable account makes no reference to any hearing or oral argument before the High Court. The briefs apparently have just been filed. You seem to have extrapolated a bit too much from your source. That doesn’t make the legal argument any less interesting, but it clearly would have been more newsworthy if the High Court had held a special session just to hear the argument. You might edit your post to reflect that you are just commenting on the briefs and not on the oral argument which probably won’t be for six months or so.

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