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Bono's fleeting use of the F-word at an awards show in 2002 led to a more strict "fleeting expletive" rule at the FCC for a time.CREDIT: AP

The United States Supreme Court earlier this week pondered the Federal Communications Commission’s policies on indecency and whether it’s still worthwhile for the federal government to regulate the public airwaves for nudity and explicit cursing.

Broadcasters currently could be fined for breaking the FCC rules. Over-the-air networks such as ABC and NBC, as well as AM/FM radio stations, are regulated from 6 a.m. to 10 p.m.

But the policy has been challenged by the broadcast networks in the courts. As a result, the FCC, since Pres. Obama took over in early 2009, has taken no action against any broadcaster despite more than 1.5 million individual complaints on various alleged over-the-air transgressions.

The Parents Television Council – a non-profit group which actively monitors the TV airwaves and solicits complaints on particularly egregious offenses – warns that if the Supreme Court kills off the regulation, ABC, CBS, NBC, Fox and the CW will become more and more like paid networks such as Cinemax or HBO or their basic cable brethren such as FX.

The broadcast networks argue that they do plenty of self monitoring, that the nastiest George Carlin-esque words and graphic nudity remain off limits, even after the 10 p.m. hour.

The Supreme Court judges noted how the landscape has changed.

“Broadcast TV is living on borrowed time,” said Justice Samuel A. Alito Jr. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”

That may or may not be true. But the distinction between broadcast and cable has blurred, especially for anybody under the age of 30.

In 1978, there were just three major commercial broadcast networks. Cable was in its infancy. The FCC, the Supreme Court ruled that year, could regulate indecency standards.

Fast forward 34 years. There are now five national over-the-air broadcast networks and hundreds of cable networks. About 90 percent of the population receives cable or satellite television. Less than half of TV viewers are watching said the broadcast networks at any given time compared to more than 90 percent in 1978.

In other words, the FCC’s jurisdiction has shrunken significantly over time. And its track record regulating TV and radio stations’ indecency standards has not been consistent. For instance, ABC was able to get away with cursing in “Saving Private Ryan” and nudity in “Schindler’s List.”

“One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, referring to the agency as “the censor.” 

Justice Elena Kagain added: “The way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg.”

(The New York Times)

At the same time, Alito mused that the standards themselves have “symbolic value, just as we require a certain modicum of dress for the people that attend this court.”

Over the past decade, broadcast networks have been battling fines related to “fleeting expletive” issues such as singer Bono uttering the F-word in passing during a live awards show in 2002. Then in 2004, Janet Jackson exposed a nipple in front of a Super Bowl audience, causing an uproar and forcing networks to become far more cautious in terms of naughty words and nudity and placing delays on live shows so they could bleep out inadvertent curse words. (This also led to Howard Stern moving to satellite radio where he could curse to his heart’s content. Ironically, NBC has hired him to be a judge on “America’s Got Talent.”)

Then again, this hasn’t stopped networks from offering up a parade of sexual jokes and situations on broadcast TV. CBS’s “Two and a Half Men,” the most popular sitcom in terms of overall audience, is often one long string of sexual innuendos. “Glee” on Fox recently aired an episode featuring two gay teens losing their virginity. Last night’s debut of NBC’s  “Are You There, Chelsea?” had at least a dozen sex-related jokes in one half hour.

Based on the questions the court justices posed to the network lawyers Tuesday, Parents Television Council’s Dan Isett said he doesn’t expect the court to kill off FCC indecency regulations. But he also hopes they simply affirm existing regulations rather than ask the FCC to go back and re-write them. The latter situation may involve more court wrangling and allow the FCC to continue to sit on its hands in terms of actual enforcement, he said.

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By Rodney Ho, Radio & TV Talk