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The Parents Television Council offered a blistering critique of a public notice issued by the Federal Communications Commission April 1 to seek comment on possible changes to the agency's indecency policy, sharply questioning whether Chairman Julius Genachowski has altered the commission's standard for enforcing indecency violations “unilaterally.”
In a statement distributed electronically April 2, council President Tim Winter took issue in particular with Genachowski's decision in the wake of the Supreme Court's decision in FCC v. Fox Television Stations Inc. in June 2012 to direct the agency's Enforcement Bureau to focus resources on “egregious cases and to reduce the backlog of pending broadcast indecency complaints.” Winter also criticized the FCC for now considering rule changes to treat “isolated expletives” differently than other repeated instances of an actor on a TV program uttering curse words, instances the commission would consider egregious.
“The FCC is supposed to represent the interests of the American public, not the interests of the entertainment industry,” Winter said. “Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course which will guarantee nothing but a new rash of new litigation.”
The FCC's enforcement of broadcast indecency violations has been challenged in court for the past ten years.
In the Fox case, the U.S. Supreme Court absolved Fox Television Stations Inc. and ABC Television Network of FCC fines for curse words uttered by Cher and Nicole Richie and seven seconds of “nude female buttocks” on NYPD Blue because the FCC failed to give the broadcasters fair notice that such material might be considered indecent.
Justice Anthony M. Kennedy, writing for a unanimous court, made it clear that the decision to dispose of the case on fair notice grounds under the due process clause eliminated the need for the court to address any First Amendment concerns related to the FCC's current indecency policy, which specifically addresses “fleeting expletives” and momentary nudity.
Though his agency found itself often in the courts over indecency fines, Genachowski did not issue any of his own in his four-year tenure.
The comment deadline will be 30 days after publication in the Federal Register.
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