- Campuses :
- Twin Cities
- Crookston
- Duluth
- Morris
- Rochester
- Other Locations
Two separate cases moving through federal courts this year have left the Federal Communications Commission (FCC) trying to defend how it regulates swear words that are broadcast on television and radio and how it regulates the ownership of multiple media companies in the same community. But as the FCC seeks to relax some of its media ownership regulations, the United Kingdom is considering more stringent cross-ownership regulations.
Supreme Court to Hear Arguments in FCC “Fleeting Expletives” Case
On July 13, 2010, the U.S. Court of Appeals for the 2nd Circuit vacated an FCC order and policy that prohibited all “patently offensive” references to sex, sexual organs, and excretion on First Amendment grounds, saying that they were “unconstitutionally vague, creating a chilling effect.” Under the policy, the FCC issued fines to broadcasters who did not censor what had been deemed “fleeting expletives” — unexpected, single incidents of profanity used in the course of a broadcast. The Supreme Court of the United States is expected to hear the case in early 2012. Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d. Cir. 2010)
“Under the FCC’s current rules, even fleeting expletives and fleeting nudity are prohibited on broadcast radio and television,” the ACLU said in a November 10 statement on its website about the case. “A violation of that rule can lead to substantial fines. The FCC’s enforcement of that rule has been inconsistent and uncertain, however, leading to arbitrary enforcement by the agency and self-censorship by broadcasters.”
The case arose after two Fox Television broadcasts of the Billboard Music Awards in 2002 and 2003. In 2002, when singer Cher was accepting an award, she said “People have been telling me I’m on the way out every year, right? So fuck ‘em.” In 2003, when entertainer Nicole Richie was presenting at the awards show, she said “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” The FCC levied substantial fines against the broadcaster for the incidents.
According to the 2nd Circuit, the FCC set forth its indecency policy in its 2001 “Industry Guidance.” The court said that the FCC’s authority to regulate the speech was based on two determinations: (1) Whether the material “describe[s] or depict[s] sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” Under the policy, the court said, whether a broadcast is patently offensive depends on three factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears [sic] to have been presented for its shock value.” These rules apply only between the hours of 6 a.m. and 10 p.m. Both Billboard Music Awards show incidents happened in that time period.
A landmark 1978 Supreme Court case established the FCC’s authority to regulate indecency over the airwaves. FCC v. Pacifica, 438 U.S. 726 (1978), upheld the FCC’s decision that George Carlin’s famous “seven dirty words” monologue was indecent when carried on the radio during times when children could hear it. But the case left open the question of whether the FCC could regulate the occasional swear word that came across the air, rather than the more systemic indecency in Carlin’s case. (For more on “fleeting expletives” and the court’s approach the FCC’s regulatory regime, see “U.S. Supreme Court Ruling Leaves FCC’s Ban on Fleeting Expletives in Place” in the Spring 2009 issue of the Silha Bulletin.) For years, the FCC elected not to regulate “fleeting expletives,” as they are often called, as part of a plan to proceed cautiously to avoid any chilling effect. In 2004, however, the policy changed. During the 2003 Golden Globe Awards, U2 singer Bono said after receiving an award, “this is really, really, fucking brilliant. Really, really great.” In response to complaints, the FCC said for the first time that a “single, nonliteral use of an expletive . . . could be actionably indecent.”
“Finding that ‘the “F-word” is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language,’ and therefore ‘inherently has a sexual connotation,’” the 2nd Circuit said, “the FCC concluded that the fleeting and isolated use of the word was irrelevant and overruled all prior decisions in which fleeting use of an expletive was held per se not indecent.” The Supreme Court has said that it will rule only on the question of whether this enforcement regime violates the First Amendment and the due process clause of the Fourteenth Amendment.
According to a June 27 story in The New York Times, after the Supreme Court announced that it would hear the case, Fox said in a statement that it was “hopeful that the Court will ultimately agree that the F.C.C.’s indecency enforcement practice trample [sic] on the First Amendment rights of broadcasters.” A spokesman for the FCC, on the other hand, told the newspaper “we are pleased the Supreme Court will review the lower court rulings that blocked the FCC’s broadcast indecency policy. We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.”
This is not the first time the case, FCC v. Fox Television Stations, Inc., has come before the Supreme Court. In 2009, the Supreme Court held in a 5-4 decision that the FCC followed the correct administrative procedures when it created its ban on expletives during the specific time period. But the court did not consider the constitutionality of the procedures, and asked the 2nd Circuit to do so. FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) The 2nd Circuit held that the regulations were unconstitutional because they were so vague that broadcasters could not easily know what was and was not permitted, and thus free speech would be chilled. “We agree with the Networks that the indecency policy is impermissibly vague,” Judge Rosemary Pooler wrote for the 2nd Circuit. “For instance, while the FCC concluded that ‘bullshit’ in a ‘NYPD Blue’ episode was patently offensive, it concluded that ‘dick’ and ‘dickhead’ were not. . . . Other expletives such as ‘pissed off,’ ‘up yours,’ ‘kiss my ass,’ and ‘wiping his ass’ were also not found to be patently offensive. . . . The Commission argues that its three-factor ‘patently offensive test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word ‘bullshit’ is indecent because it is ‘vulgar, graphic and explicit’ while the words [sic] ‘dickhead’ was not indecent because it was ‘not sufficiently vulgar, explicit, or graphic.’ This hardly gives broadcasters notice of how the Commission will apply the factors in the future.”
Some media attorneys have speculated that the high court could end the FCC’s indecency regime entirely. Pointing to Brown v. Entertainment Merchs. Ass’n, 131 S.Ct. 2729 (2011), a case decided by the Supreme Court in June 2011 that struck down a California law banning the sale of violent video games to minors, John Stephens, a media attorney and partner at California-based law firm Sedgwick, asked in a September Media Law Bulletin blog post whether “given only two Supreme Court justices were willing to find in favor of a California statute designed to protect minors from violent video games, will the Court likewise find that broadcast stations are not always worthy of special treatment different from other media including cable, DVDs, CDs, MP3s and the Internet?” (For more on Brown v. Entertainment Merchs. Ass’n, see “U.S. Supreme Court Strikes Down Ban on Violent Video Game Sales to Minors” in the Summer 2011 issue of the Silha Bulletin.)
3rd Circuit Strikes Down Portion of FCC Media Ownership Rules
On July 7, 2011, the U.S. Court of Appeals for the 3rd Circuit struck down a portion of new FCC media ownership rules that regulated cross-ownership of newspapers and broadcast stations in a single media market, saying that the agency failed to provide adequate notice before changing the rules, as required by law.
The case, Prometheus Radio Project v. FCC, 652 F.3d 431 (2011), arose from a 2007 revision of the FCC rules, approved despite intense criticism from public interest groups, the commission’s Democratic members, and congressmen, according to previous Bulletin coverage. (For more coverage of the regulations, see “FCC Changes Cross-Ownership Rules amid Intense Criticism” in the Fall 2009 issue of the Silha Bulletin.) Consumer groups and others challenged the FCC’s regulations in court, arguing that the agency did not give enough notice of the proposed changes to allow for adequate feedback.
“The decision is a vindication of the public’s right to have a diverse media environment,” said Andrew Jay Schwartzman, policy director of Media Access Project, a Washington-based advocacy group, in an email to Bloomberg News. “The FCC majority knew that its effort to allow more media concentration was politically and legally unworkable, so it tried to end-run the procedural protections that are designed to give the public the right to participate in agency proceedings.”
The court also struck down proposed regulations aimed at increasing media ownership by people of color and women. The court said the FCC had not sufficiently proven that its proposed changes would be adequate to the task. “The Commission has not shown that [new regulations] will enhance significantly minority and female ownership, which as a stated goal of this rulemaking proceeding. This is troubling,” the court wrote.
The Administrative Procedure Act (“APA”) requires that federal agencies provide notice to the public before changing federal regulations. That notice has to contain “either the terms or substance of the proposed rule,” or “description of the subjects and issues involved.” After the notice is given, the agency has to give interested members of the public “an opportunity to participate in the [development of regulations] through submission of written data, views, or arguments with or without opportunity for oral presentation.” According to the 3rd Circuit, courts evaluating whether this process was adequate need to determine “whether it would fairly apprise interested persons of the ‘subjects and issues’ before the agency.” The court said that the APA is designed this way to make sure that any proposed regulations get a full public airing before they are enacted, so that any parties who may be adversely affected can have their say. The APA also requires that during the comment period, an agency must remain receptive to diverse views, the court pointed out. Administrative Procedure Act, 5 U.S.C. § 500 et seq. (1946)
The proposed regulation that the court sent back to the FCC was created in 2007. Rather than ban the ownership of both a television station and a newspaper in the same media market outright, the FCC had devised a complex formula to determine whether to allow cross-media ownership. In the 20 largest media markets in the country (called Designated Market Areas, or “DMAs,” regions where residents receive the same network television offerings), the FCC would presume that “it is not inconsistent with the public interest” for an entity to own either “a newspaper and a television station if the television station is not ranked among the top four stations in the [community], and at least eight independent ‘major media voices’ remain in the [community],” or “a newspaper and a radio station,” according to the 3rd Circuit opinion. In every other, smaller market, the FCC would presume that owning a newspaper and a broadcast station would be “inconsistent with the public interest.” However, the Commission would reverse that presumption — i.e., ignore the idea that it is inconsistent with the public interest — if the combination “initiates at least seven hours a week of additional local news programming,” or the newspaper or broadcast outlet meets a specific FCC standard that shows it is struggling.
The FCC would consider four things when evaluating whether to approve a proposed combination, the court said. It would look at the extent to which cross-ownership “will serve to increase the amount of local news disseminated through the affected media outlets in the combination;” whether each affected media outlet will exercise its own, independent news judgment; the “level of concentration in the . . . DMA” and the financial condition of the broadcast station or newspaper. If either is struggling, the FCC would evaluate the owner’s commitment to invest significantly in the newsroom of the media company. The FCC has not defined “market concentration” and says that it “will not employ any single metric” to measure it.
But the problem with this regulation, the court said, was that the FCC did not give adequate notice to the public before changing it. (The FCC had also changed many other rules — from regulations on radio-television cross-ownership to whether one entity can own more than one television station — but the court found the notice process adequate in those cases.) The notice the FCC gave in this case was not specific enough to allow for meaningful public comments, and it held just six public hearings on media ownership in cities around the country. Moreover, the court noted, the date and location of the final public hearing “were announced just 10 calendar days beforehand.” The court also said that the FCC had appeared to make up its mind before the comment process was over. “Two weeks before the . . . response period closed, and before most of the responses were received, a draft of the order was circulated internally. The final vote occurred within a week of the response deadline. This is not the agency engagement the APA contemplates.”
The court also rejected proposed changes to a regulation dealing with increasing media ownership by people of color and women. The court questioned the part of the rule that would allow small businesses to have a chance at buying struggling stations before they are sold to an entity that already owns stations in the same media market, rather than allowing minority- and female-owned businesses that opportunity. The court also criticized the FCC for not even having accurate data to reflect the level of media ownership among people of color and women.
“Promoting broadcast ownership by minorities and women is, in the FCC’s own words, ‘a long-standing policy goal of the Commission, and is consistent with [its mandate].’ We recognize that there are significant challenges involved in meeting this important policy goal that is shared by Congress, the Commission, and the myriad interested parties who have participated in rulemaking proceedings toward this end. However, the Commission appears yet to have gathered the information required to address these challenges.”
Michael J. Copps, a Democratic FCC Commissioner, hailed the ruling in a July 7 press release: “This decision is a huge victory for the millions of Americans who have gone on record demanding a richer and more diverse media.”
U.K. Considers Establishment of Media Ownership Rules
The broadcasting and telecommunications regulator in the United Kingdom — Ofcom — is contemplating establishing media cross-ownership rules in England, in the wake of a failed attempt by Rupert Murdoch’s News Corporation to acquire BSkyB, the U.K.’s biggest pay-television operator.
According to an Oct. 21, 2011 article in The Guardian, Culture Secretary Jeremy Hunt asked the regulator to look at how media pluralism should be measured and whether it is possible to set limits on media ownership to encourage it. The article said that the issue came to the forefront during the Murdoch bid because the take-over raised long-term plurality concerns, because it would have increased the domination of News Corporation.
In October, Ofcom called for public comment on a number of issues that could be involved in establishing media cross-ownership rules, such as how to measure media plurality across the different media forms, whether it is practical or advisable to set absolute limits on news market share, or whether reviews of plurality concerns should only happen when mergers are proposed, the story said. According to a Sept. 11, 2011 article in The Guardian, the only current restriction on cross-media ownership in the U.K. prevents any newspaper owner whose holdings account for more than 20 percent of total circulation — such as News Corporation — from owning more than 20 percent of ITV, Britain’s oldest commercial television network. An Oct. 21, 2011 Dow Jones Newswires report said the analysis will be completed by June 2012, and the results will be given to a panel led by Lord Justice Brian Leveson that is conducting an inquiry into U.K. media in the aftermath of the British phone hacking scandal. (For more on the phone hacking scandal, see “Not Just a ‘Rogue Reporter’: ‘Phone Hacking’ Scandal Spreads Far and Wide” in the Summer 2011 issue of the Silha Bulletin.)
– Emily Johns
Silha Research Assistant
