The ball is in FCC’s court

Now that the 2nd Circuit Court of Appeals has ruled it is OK, will we be hearing Vice President Biden actually say what we all thought he said when he whispered to President Obama that healthcare was “a big f--king deal”?

Not likely, if only because television networks are still nervous about when the next shoe may drop from the Federal Communications Commission (FCC) and just what it will hit. Even the cable networks bleeped the “F” word — in deference to the vice president and fear of backlash from parents whose children might be watching Keith Olbermann or John King. Kids are not a big demographic for news programs, but you never know …

As a former radio and TV guy, I’ve always been intrigued with the FCC’s confused approach to whatever “indecency” is. Back when I was a teenage disc jockey, we knew there were certain things we best not say on the air. Then as progressive radio began to gain a foothold some broadcasters chose to test the limits. The ultimate challenge to the notion of “indecency” came in the form of George Carlin’s “seven dirty words” monologue. For those who haven’t heard it, the bit was classic Carlin — a gauntlet thrown down for timid broadcasters and those who would regulate them.

The old Pacifica Radio Network was born in 1949 at KPFA in Berkeley, Calif. (Where else?) By the late 1970s the stations had evolved from an outlet for the pacifist leanings of founder Lew Hill to champions of free speech and free thought. Carlin’s dirty words immediately found a home there. The FCC objected and levied fines and the monologue and its broadcast were soon in court. In 1978 the Supreme Court ruled in FCC v. Pacifica Foundation that Carlin’s repetitive and deliberate use of vulgarities was indecent and that the FCC could ban such programs and fine or even yank the licenses of stations that aired them. The use of occasional expletives in unscripted formats was left open and the FCC largely ignored them until 2004, when a commission dominated by President George W. Bush appointments decided to get tough.

Janet Jackson’s “wardrobe malfunction” at the Super Bowl that year energized the commission. It ruled that even incidental episodes, whether visual or verbal, in live unscripted broadcasts were subject to fines. In 2006 Congress increased fines tenfold to $325,000 per incident. That’s $325,000 per station — which means that a network could be hit for millions in penalties if someone didn’t get to the bleep button fast enough. That really got broadcasters’ attention and made local stations and networks extremely cautious about what they aired.

Cautious and confused.

No one was sure what the FCC standards were. They still aren’t. The F-word and the S-word were fine in the movie “Saving Private Ryan.” But the PBS miniseries “The Blues” was slapped hard for the same language.

Even more troublesome are unscripted, spontaneous expletives. How do you stop them? Obviously, in a taped rebroadcast they can be bleeped — but in a live interview the word is out before anyone can get a finger on the button. Hence the seven-second delay, which is deadly for live television.

Now that the 2nd Circuit has ruled the FCC’s policy unconstitutionally vague and chilling, the ball is in the commission’s court. The FCC must decide whether to appeal the ruling and risk that a new court with a new justice might revisit all regulation of broadcast content. The 2nd Circuit has suggested that modern technology and the growth of cable, the Internet and online video as well as the proliferation of V-chip technology might just make all such content control outdated. A year ago Justices Ginsburg and Thomas wondered whether existing standards were still relevant when FCC policies came dangerously close to First Amendment infringements.

The 2nd Circuit and broadcasters around the country are wondering why television and radio stations should be subject to restrictions that would violate the First Amendment if applied to cable networks. I find myself scratching my head over the same issue. Limiting scripted shows with rough language and violent action to later hours makes sense to me — although I have a hard time understanding parents who can’t control what their children watch. I guess that’s why they invented the V chip. But when it comes to news and public discourse, even awards shows and sporting events, it seems to me we should let the free flag fly — as they might have said on Pacifica stations 30 years ago.

Goddard is a founding partner of political consultants Goddard Claussen. E-mail: