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Associated Press/Photo by Joe Cavaretta

In the name of decency

Media | High court affirms FCC role in policing TV content

Issue: "Playing with capitalism," May 23, 2009

The Supreme Court, in a 5-4 decision, ruled that the Federal Communications Commission did indeed have the authority to sanction TV stations for "fleeting" profanities, reaffirming the much-maligned Bush-era indecency crackdown on Hollywood. The April 28 ruling addressed what Justice Antonin Scalia termed "foul-mouthed glitteratae from Hollywood" speaking profanities on-air during live TV broadcasts, such as awards shows.

The case stems from the singer Cher's utterance of an obscenity during the 2002 Billboard awards on Fox. On the heels of that ruling, the high court on May 4 ordered a lower court to reconsider its decision tossing out a fine against CBS over the so-called "wardrobe malfunction" that resulted in the airing of Janet Jackson's exposed breast during the Super Bowl halftime show in 2004.

The Supreme Court did not address whether the indecency rule was constitutional but sent the issue of constitutionality back to the appeals court, to work its way through the system again. This sets the stage for a long, drawn-out fight at a time when the media landscape is roiling with change. The viewership of the broadcast channels is being swallowed up by cable and internet streaming, neither of which are regulated by the FCC. Cable channels provide content based on what demographic they are trying to attract, but the internet is a Wild, Wild West of content. The FCC's authority to police indecency becomes less and less meaningful as content shifts to the internet.

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Although the ruling reaffirms the FCC's authority, it's uncertain whether the thousands of indecency complaints currently awaiting FCC action will ever see the light of day. Obama's nominee for FCC chairman, Julius Genachowski, is considered to be less likely to pursue complaints aggressively than his Bush-appointed predecessors.

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