Supreme Court Throws Out FOX and ABC Sanctions

The FCC suffered a bit of an “enforcement malfunction” yesterday when the Supreme Court threw out sanctions against ABC and FOX. Disney had been hit with a $1.2 million penalty for nudity in an “NYPD Blue” episode on ABC, while FOX was warned about expletives that were uttered on the air during two live award show broadcasts.

The Supreme Court decision did not address the overall issue concerning the constitionality of the FCC’s indecency rules. Instead, it took a much more narrow view, ruling that the agency did not give the networks fair warning about the “fleeting expletive” rules, which were announced after the incidents in question.

The decision may also lead to the elimination of the FCC’s half-million dollar fine against NBC for the infamous Janet Jackson halftime incident at the SuperBowl.

The decision does put a nick in the FCC’s enforcement sword, though it might have been worse had the Court extended the judgment to consider the First Ammendment free speech issues that could be drawn into the discussion. For now, it appears that broadcast television will continue to be held to higher standards of “decency” than content on channels that are only available on subscription services such as cable and satellite.

I suspect that this not the last we hear of this argument, however. The FCC has a backlog of 1.5 million complaints about indecent content in broadcasts, and is mandated by Congress to protect young viewers from inappropriate content. On the other hand, the broadcast networks chafe at facing enforcement actions that do not apply to the cable channels. So you can expect that this issue will likely come before the Supreme Court again before long.

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