It is the second major legal blow in recent months to the FCC's broadcast indecency policy, and some would say another blow to families. The Supreme Court eventually may decide the issue in what could be a landmark case.
In 2003, ABC aired an episode of NYPD Blue that showed actress Charlotte Ross preparing to shower. By the court's own count, the scene in question lasted approximately seven seconds. After receiving complaints, the FCC fined ABC $1.21 million, which amounted to $27,500 for all 44 stations in the Central and Mountain time zones that aired the episode at 9 p.m. Stations in Eastern and Pacific time zones that aired it at 10 p.m. -- when the standards are not in effect -- were not included in the fine.
But ABC filed suit, and a unanimous three-judge panel for the U.S. Second Circuit Court of Appeals tossed out the fine in a Jan. 4 order, saying it was bound by a ruling by the same circuit last year pertaining to profanity. In that earlier case, Fox v. FCC, a different three-judge panel ruled the FCC's indecency policy unconstitutional, saying it was "vague" and "effectively chills speech."
"Indeed, there is no significant distinction between this case and Fox," the Second Circuit panel wrote in its Jan. 4 nine-page order. "... determination that the FCC's indecency policy is unconstitutionally vague binds this panel."
Pro-family groups disagreed that there was no distinction, noting that the Fox case began with instances of unscripted profanity on live TV while the NYPD Blue case involved scripted material that was pre-recorded.
Tim Winter, president of the Parents Television Council, called children and families the "real victims."
"This ruling will only serve to embolden the networks to air even more graphic material," Winter said.
Dan Isett, director of public policy for the Parents Television Council, said the networks cannot be trusted to police themselves.
"The broadcast networks have tried to make the case that they don't have any real desire to air more indecent material, but their actions speak otherwise," Isett told Baptist Press. "They've spent literally millions of dollars in legal fees alone pursuing several different lawsuits to try to get rid of broadcast decency standards. When you couple that with the increasing amounts of foul language and sexual content and violent content, I don't think they're very credible. I don't know if it will lead to more graphic content, but we do know that if this ruling is allowed to stand as-is that there will be no prohibition or any rule whatsoever to ensure that there is not more graphic content."
The NYPD Blue episode in question was rated TV-14, and not TV-MA, a more strict rating. TV-14 means that it "contains some material that many parents would find unsuitable for children under 14 years of age," according to the ratings' definition. The television studios rate their own programs.
The episode's rating is significant because televisions equipped with V-chip technology rely on the ratings system in order to block content parents don't want their children to see. Yet the ratings system itself has come under question. A 2007 Parents Television Council study of 546 hours of primetime broadcast programming found that 67 percent of the time, programs contained offensive programming without the proper content label. A program might, for instance, have sexual content but no "S" label to warn viewers. The PTC called it a "sham" system. The more strict the rating, the more likely people will not watch it or not be able to watch it.
"The problem with the existing system is that the same people that produce content are the same ones that rate their own stuff," Isett said. "So they have built-in economic disincentive in rating their own material."
A November study by the Parents Television Council found that profanity on broadcast television had risen 69 percent in five years.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, last year called the Fox v. FCC decision "alarming."
"I am concerned the court's decision to pull the rug out from under the FCC's already minimalistic restrictions on indecent speech will throw open the floodgates to an even greater torrent of filth and perversion on our nation's airwaves," he said.
Michael Foust is associate editor of Baptist Press.
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