Opponents of easing restrictions on cursing and “nonsexual nudity” over public airwaves have flooded the Federal Communications Commission with more than 100,000 public comments.
The FCC in April asked for feedback on a plan to focus its enforcement efforts on the most egregious cases of indecency. If adopted, the regulations would be a departure from more aggressive George W. Bush-era policies of penalizing even isolated uses of expletives on broadcast television.
In particular, the commission sought comments on how it should handle infrequent cursing and instances of nudity that are not overtly sexual.
“The public is outraged,” said attorney Patrick Trueman, president and CEO of the nonprofit Morality in Media, which has helped lead the charge against a policy shift.
In letter upon letter, private citizens and traditional values groups implored the FCC to refrain from relaxing the rules, arguing that there is already too much smut and profanity on TV.
“Please do not allow nudity and profanity to be broadcast to each and every television capable of receiving your signal,” one woman wrote. “I don't need to see it and neither do my children.”
“Foul language and nudity have no place on our public airwaves, TV or radio,” another man wrote. “No where in the Constitution is there any rights guaranteed to destroy America's common decency.”
But the networks support the policy shift, and say their right to free speech is violated when they are penalized for broadcasting material that has become ubiquitous.
“The rationale for broadcaster-specific limits on ‘indecent’ speech has crumbled under the weight of changes in technology and media consumption,” the National Association of Broadcasters wrote in its comments to the FCC.
“Children in particular enjoy unfettered access to content via devices that they carry in their pockets and backpacks — access that usually involves no subscription or special parental involvement,” NAB continued. “In this environment, the constitutionality of a broadcast-only prohibition on indecent material is increasingly in doubt.”
Trueman, however, argued broadcast networks and radio stations are trying to put themselves on even footing with cable and satellite outlets, which have greater flexibility when it comes to adult material.
He also criticized former FCC chairman Julius Genachowski for initiating the rulemaking process on indecency this spring — just as he was about to leave office.
Genachowski did not issue any indecency fines in his four-year tenure at the FCC, arguing the agency’s authority was in limbo until a court fight over the policy was resolved. More than 1.4 million FCC complaints piled up in that time.
The Supreme Court ended the uncertainty last year by upholding the FCC's indecency powers.
In April, the FCC announced that it had cleared about 70 percent, or roughly a million indecency complaints, from the backlog by casting out those that were older than the statute of limitations or outside the FCC’s jurisdiction.
As the FCC worked through the complaints, Genachowski announced that the commission was considering changes to the indecency rules.
“Now that it’s all settled, Genachowski, as he’s going out the door, is inviting eight more years of litigation,” Trueman said. “It’s as dumb as can be.”
It isn’t yet clear what the FCC means by “nonsexual” nudity, Trueman said, arguing it could apply to anything from a naked woman lying by herself to singer Janet Jackson’s infamous “wardrobe malfunction” during the halftime show of the 2004 Super Bowl.
“The networks will be jumping all over each other to see what they could get away with,” he said.
The FCC is reviewing the comments on the indecency changes, which must be taken into consideration before the agency drafts proposed regulations. Any draft rule published by the FCC would likely by accompanied by another comment period, and it isn’t clear how soon the commission will act.
In the meantime, Trueman’s group is hoping to put pressure on Genachowski’s would-be successor, Tom Wheeler.
Lawmakers grilled Wheeler, President Obama’s nominee to serve as the next FCC chairman, on the indecency standards last month, but he was less than specific about his intentions.
On Tuesday, Morality in Media plans to send every member of the Senate a letter calling upon them to oppose Wheeler’s nomination unless he vows vigorous enforcement of the regulations that are now on the books.