Networks Go After Red Lion, Pacifica

The Federal Communications Commission's current indecency-enforcement regime is unconstitutional, Fox told the Supreme Court Friday. Saying it now exists side-by-side with hundreds of cable channels not subject to FCC rules, Fox told the court broadcasting was no longer uniquely pervasive. That was one of the justifications the Supreme Court used for upholding the Pacifica decision finding George Carlin's "Filthy Words" monologue indecent. It also said that because kids can access indecent material through the Internet or via cable or satellite "just as easily" as they can get it via broadcasting, it is no longer uniquely accessible to children, which would also undercut Pacifica. That argument came in a brief asking it to uphold a lower-court's ruling that the FCC's crackdown on cussing was an arbitrary and capricious change in policy that broadcasters were not sufficiently warned about. The other broadcast networks took dead aim at that regime and the underpinning of broader content regulation in their brief to the Supreme Court in support of Fox Friday, calling the FCC's effort to avoid a challenge to the constitutionality of its indecency-enforcement regime the commission's "latest bait and switch." In their filing, NBC, CBS and ABC called the FCC's indecency-enforcement regime unfathomable and indefensible. The networks also took aim at the Red Lion decision, in which the High Court upheld content regulations -- in this case the jettisoned "Fairness Doctrine" -- using the spectrum-scarcity rationale. "Whatever its validity when Red Lion affirmed it in 1969 or in 1987 when the commission rejected it without reservation, today the scarcity rationale is totally, surely and finally defunct," the networks said. Erwin Krasnow, former general counsel for the National Association of Broadcasters, concludes in a commentary in Broadcasting and cable: The FCC should bury the scarcity rationale and adopt the approach advocated by former FCC Chairman Mark Fowler, to apply a public-interest standard based on minimally regulated marketplace forces rather than content regulation. Fowler once said that whether you call the public-trusteeship model of regulating broadcasters "paternalism" or "nannyism," it is Big Brother, and it must cease. The Center for Creative Voices in Media filed a brief in the Supreme Court Friday in the Federal Communications Commission's challenge to a lower-court decision throwing out decision to find profanity on Fox's air indecent. Creative Voices says TV creators are literally at a loss for words to know when they might run afoul of FCC rules. In its brief, the Center said it is not challenging the broader constitutionality of the indecency-enforcement regime, and on that score at least, it is in agreement with the FCC. But that is about the only thing they agree on.