Will the FCC punt on indecency?

The Supreme Court punted the issue of broadcast indecency back to the Federal Communications Commission last week, with a narrow, procedural decision in FCC v. Fox Television Stations that didn't rule on the First Amendment implications of the current indecency guidelines.

Given the declining number of indecency complaints and the resources necessary for their investigation, don’t be surprised if the FCC itself finds a way to punt on this issue, at least until after the presidential election.

According to Commissioner Robert McDowell, the FCC has a backlog of 1.5 million indecency complaints on file covering about 9,700 broadcasts. If the FCC picks up where it left off in 2006, when it began to shelve complaints while the issue was dealt with in the courts, it could quickly exhaust the agency’s resources.

Resolving indecency complaints can take years. In  FCC v. Fox, the offending shows that led to the complaint aired in 2002 and 2003, and an order wasn't adopted until late 2006.

Rather than take up the backlog of complaints, FCC Chairman Julius Genachowski could issue a notice of proposed rule-making on the subject, with an eye to clarifying guidelines that the Supreme Court characterized as “vague” in its recent ruling.

It’s also possible that at least some of the backlogged complaints are on shaky legal ground. For instance, programming that aired between a July 2010 appeals court decision that struck down the commission's authority to regulate the content of broadcasts and last week’s Supreme Court ruling could be considered subject to the appellate ruling.

Aside from a few activists, there doesn't seem to be a popular appetite for cracking down on broadcasters. According to the FCC website, complaints shot up between 2003 and 2006, when the Parents’ Television Council and other activist groups were actively encouraging aggrieved viewers to file them. In the first six months of 2006, the FCC received more than 327,000 indecency complaints, compared to just 1,746 complaints logged over the last six months for which figures are available.

Tim Winter, president of the Parents' Television Council, thinks it’s time for the FCC to get back into the indecency business. “The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints,” he said in a statement.

“There’s a question of prudence of how many of the past complaints should be acted on,” said Patrick Trueman, president and CEO of the activist group Morality in Media. But he does feel strongly that the FCC should pick up where it left off in 2006 and, “get busy now and be vigorous enforcers of indecency law.”

Current FCC guidelines define broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” This somewhat tortured definition comes down from the Supreme Court ruling in FCC v. Pacifica Foundation, the famous case involving George Carlin’s monologue, “Seven Words You Can Never Say on Television.”

In her concurring opinion in FCC v. Fox, Justice Ruth Bader Ginsburg said it was time to reconsider thePacifica ruling. Justice Clarence Thomas said that ruling in Pacifica was “unconvincing” in a 2009 concurring opinion, when the Supreme Court first ruled in FCC v. Fox. And in Fox oral arguments, Justice Samuel Alito said “broadcast TV is living on borrowed time,” perhaps suggesting that the special rules for the medium were increasingly irrelevant.

Ultimately, FCC v. Fox was decided in a unanimous ruling that left Pacifica untouched. Only Chief Justice John Roberts and Justice Antonin Scalia appeared to express unqualified support for the idea of a strong regime of broadcast content regulation in oral arguments. With two justices in open revolt againstPacifica and uncertainty as to the views of five more, the only thing that seems clear is that before long, partially redacted "f-bombs" will find their way into the official record of the nation's high court.

“Whatever the FCC does here, it's a safe bet they'll wind up before the Supreme Court again in a few years, defending their broadcast censorship rules for a third time," said Berin Szoka, founder of the technology think tank TechFreedom.