The who-cares test

Hollywood's eyes, like those of the rest of the nation, focused on Washington Nov. 4. But not only were the broadcast networks gauging the effect that a change of presidency will have in the industry. Election Day was also the day the Supreme Court revisited FCC indecency standards for the first time in 30 years.

The Supreme Court heard FCC v. Fox TV, a case involving a profanity uttered by the singer Cher during a live broadcast of the Billboard Music Awards. The network appealed its fine, arguing that it is not responsible for things it cannot control. The Supreme Court could allow the current judgment to stand or it could rule narrowly, affecting only the case at hand.

But many experts believe the court wouldn't have heard the case except to redefine the FCC's role in policing indecent, profane, or obscene content, which currently covers only media broadcast over public airways: radio and broadcast networks. It does not cover subscription cable or internet broadcasts. A host of conservative groups such as the Family Research Council, the Parents Television Council, and the American Center for Law and Justice have filed briefs in support of the government's case. The ACLU and other broadcasters are among those backing Fox TV.

Hollywood has been chafing under what it sees as overly aggressive enforcement of broadcast indecency standards under President Bush's FCC chairmen, the latest of whom is Kevin Martin. The trouble goes back to 2004's infamous Super Bowl halftime performance on CBS, a subsidiary of Viacom at the time, in which Justin Timberlake ripped Janet Jackson's shirt, exposing her breast on live TV. Both performers claimed the incident was the result of a "wardrobe malfunction," although the claim was met with skepticism everywhere. Viacom argues that because the exposure was accidental, the network should not be responsible for it. The case is still working its way through the legal system after a $550,000 fine against Viacom was thrown out in July. The government can appeal, although the success of a potential appeal likely depends on the decision the Supreme Court makes in FCC v. Fox TV.

That's not the only case in which broadcasters have stood to lose big money for indecency fines. After the Super Bowl scandal, indecency fines were greatly increased to more than $325,000 per incident. Perhaps the greatest source of contention is the issue of live broadcasts. In addition to Cher, fellow celebrities Bono and Nicole Richie have drawn the attention of the FCC after live award show broadcasts in which they included an expletive in their acceptance speeches. Although some broadcasters have implemented slight delays so they can mute offensive statements, in general broadcasters feel that the scrutiny on live broadcasts limits their First Amendment rights and makes broadcasters responsible for things they can't control.

But there's plenty of scripted material broadcasters can control. The FCC levied a $1.4 million fine against ABC stations this year for the 2003 airing of a woman's naked buttocks on NYPD Blue. Last week, the Parents Television Council filed an indecency complaint with the FCC over a scene involving a lap dance at a strip club in the CBS sitcom Two and a Half Men. The most-watched sitcom, Two and a Half Men is not hurt in the ratings by its frequently raunchy content; it may owe its success to it. And under a new administration, "I don't think they're going to spend two minutes prosecuting people for letting Bono say a word of common expletive because he got excited," Jonathan Taplin, a USC communications professor, recently told Reuters, "It doesn't pass the who-cares test."