A Supreme Court decision last year upheld the Federal Communications Commission's authority to fine TV stations for airing indecent material, but the agency has shown little interest in exercising that power.
FCC Chairman Julius Genachowski is facing pressure from lawmakers and family values groups to crack down on TV stations that broadcast nudity, curse words or other offensive material, but aggressive enforcement could cause a backlash from broadcasters and civil liberties advocates.
“They've waited a long time, and if the chairman waits a little bit longer, he may be gone. So it'll be somebody else's headache,” said Andrew Schwartzman, a media attorney opposed to the indecency fines.
“All indications are that Chairman Genachowski does not want to deal with this,” said Dan Isett, director of public policy for the Parents Television Council, which favors aggressive enforcement. “I suspect the chairman is trying to run out the clock.”
Asked whether the FCC plans to act on any indecency complaints, an agency spokesman pointed to a statement from last September in which Genachowski said the commission is still reviewing its enforcement policy.
In the statement, Genachowski said he had directed the Enforcement Bureau “to focus its resources on the strongest cases that involve egregious indecency violations.”
One of the most infamous indecency cases was against CBS for airing a split-second view of singer Janet Jackson's partially exposed breast during 2004 Super Bowl halftime show. That “wardrobe malfunction” resulted in years of legal battles.
But for several years before the Supreme Court decision, the FCC had declined to issue any indecency fines, noting that its authority was in legal limbo. The broadcasters argued that the fines violated their constitutional right to free speech.
The Supreme Court upheld the constitutionality of the indecency ban seven months ago.
At the time, Genachowski said that, consistent with constitutional protections, “the FCC will carry out Congress’s directive to protect young TV viewers.”
The FCC has yet to issue any fines or draft any rules on the issue.
Proponents of aggressive enforcement argue that the federal government should ensure that the public airwaves, which the broadcasters use free of charge, should be safe for children and families.
In a statement last year, Sen. Jay Rockefeller (D-W.Va.), chairman of the committee with jurisdiction over the FCC, called the Supreme Court decision “a victory for those of us who believe that we must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming.”
Isett said that the FCC used the litigation as an “excuse” not to act and that with the Supreme Court case over, it is time for the agency to enforce the indecency ban.
Hundreds of thousands of indecency complaints, many of them filed by the Parents Television Council, have accumulated at the FCC.
Isett said the FCC has begun rejecting some of the complaints that are clearly groundless, such as those against cable television shows. But he said that beyond that, he has heard of little action to address the backlog.
Broadcasters and civil liberties groups are likely to fight any attempt by the FCC to begin issuing fines.
They argue the FCC should not become a morality police force, censoring artistic expression.
Dennis Wharton, a spokesman for the National Association of Broadcasters, said that TV stations have an obligation to their viewers and advertisers not to air offensive material and that federal regulation is unnecessary.