The seven dirty words you should be allowed to say on television.

• Author: Eichner, Ellen Alexandra

1. INTRODUCTION

   Shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. (1)

   For any American who has turned on his or her television since 1978 and tuned into one of the traditional broadcast networks--ABC, NBC, CBS, or Fox--these seven words have been conspicuously absent from broadcasting. Confusingly, with a flip of the remote over to a premium cable television station, these seven words may all occur in quick succession on one television show. (2) When one of them does happen to make it to air on a broadcast network, it often becomes the source of an astronomical fine from the Federal Communications Commission ("FCC") and years of litigation between the network and the federal government. (3)

   A recent case resulted in a huge victory for broadcasters. In the 2012 holding of FCC v. Fox Television Stations, Inc., the Supreme Court required the FCC to eliminate its existing policy on how it regulated indecent content on the broadcast networks. (4) The Court found the policy unconstitutionally vague because it did not put broadcasters on notice about what types of content were prohibited on television. (5) This holding left the FCC with a gaping hole, but also an enormous opportunity. For a body that often struggles to keep up with the ever-changing entertainment industry, (6) the FCC now has the chance to rewrite its indecency policy and bring the law into the twenty-first century. Since the 2012 ruling, the FCC has sought guidance from lawmakers, content creators, private interest groups, and average citizens on what this new policy should be. They have yet to issue a new regulation. (7)

   An important reason the FCC has yet to act may be that the existing regulatory framework for indecent content on television has grown obsolete. (8) The federal government's ability to regulate the broadcast airwaves is based on the idea that the airwaves are a scarce resource--an idea that led to the creation of something known as the scarcity doctrine. (9) However, after the advent of cable and the digital transition, many see opportunities to access the airwaves as plentiful, not scarce. (10) Part of the Court's holding in Fox II was that the government does still have the power to regulate the broadcast networks. (11) However, it would be wise for the FCC to think about television in a more modern context when making its new regulations. (12)

   The American government need only look across the pond for guidance on how to structure a modern regulatory scheme for indecent content on television. (13) In the 2003 Communications Act, the United Kingdom empowered its Office of Communications, the U.K. equivalent of the FCC, to create a strong and coherent Broadcasting Code to take U.K. television regulation into the modern era. (14) The code it promulgated is a happy medium that can satisfy all interested parties, which would be an excellent model to emulate in the United States. (15) The U.K. Broadcasting Code appeals to parents because it sets limits about content during the hours when children are most likely to be watching. (16) Yet, its flexible regulations on content also appeal to broadcasters who want to push the envelope. (17) And, it regulates all networks equally, which appeals to all parties because there is only one set of mies to follow. (18) Creating a regulatory model like this for the United States would be a vast improvement over its current model with its different rules for different types of broadcasting. (19) A new U.S. model that mimics the U.K. Broadcasting Code would be much clearer than the old FCC policy and would much more likely survive a potential vagueness analysis by the Court in the future. (20)

   Part II of this Note examines the development of the American television industry and the indecency laws that govern it. Part III discusses why this model of indecency regulation has grown obsolete as television technology advances. Part IV takes an in-depth look at the U.K. model and the indecency laws that arose out of the 2003 Communications Act. Finally, Part V offers some suggestions on how the United States could implement some of the successful strategies being used by the United Kingdom to regulate indecent television content. The suggestions outlined in this Note advocate a cohesive scheme that will end the bifurcated regulatory system that has persisted despite a changing industry and culture.

2. THE AMERICAN MODEL

   1. Development of the American Television Industry and Regulatory Model

      The relationship between the public's First Amendment rights and the government's ability to regulate content put out over the airwaves has always been strained. (21) The American television industry grew out of radio, both in content and in the way the government treated the industry's use of the airwaves. (22) Though the government wanted to foster competition in the television industry through the privatized affiliate system, (23) it still wanted to have some oversight over the content that television broadcasters were putting on air. (24) The government controlled the broadcasting spectrum, (25) and discovered that it could regulate the television networks through their access to the spectrum. (26) The earliest form of regulation of television content in the U.S. was the Television Code, which resulted from a (1952) FCC opinion. (27) The FCC action froze the number of licenses that would be granted to television networks that wanted to broadcast in the VHF spectrum, creating practical monopolies for CBS, NBC, and ABC, which were the only three networks broadcasting in VHF at the time. (28) In exchange for this license freeze, the networks allowed the FCC to have oversight over the content that was being put to air. (29) This was the first instance in which the FCC's regulation of television content was tied to the physical broadcasting spectrum, (30) and this regulatory model, sometimes referred to as the public trustee model, has persisted into the present day. (31) The introduction of cable channels (32) and the creation of the digital broadcasting spectrum (33) have added new dimensions and challenges to the public trustee model and its applicability in the modern day. (34) The tension between the ever-expanding broadcasting spectrum and the federal government's continued desire to regulate indecent content on television is the core issue this Note seeks to address.

   2. Case Law Involving Regulation of Content on Television

      Much of the guidance on how the government can regulate television content comes from case law. There are five landmark Supreme Court cases in this area of the law that have shaped how the courts and the government have been able to control indecent content on television. Although some of the facts of these cases involve content broadcast over radio, their holdings hold true for television as well, as the FCC's power to regulate the broadcast spectrum includes the airwaves for both radio and broadcast television. (35)

      1. Red Lion Broadcasting Co. v. FCC

         In the first major case that dealt with regulating broadcast media content, Red Lion Broadcasting Co. v. FCC, the content being regulated was political, not indecent. (36) At the time, an FCC regulation said that radio and television stations were required to give equal time to opposing sides on issues of public importance. (37) When a radio station owned by the Red Lion Broadcasting Company did a story on a book about Barry Goldwater written by Fred Cook, Cook requested reply time to clarify his position. (38) When the station refused, Cook sued. (39) The station argued it was unconstitutional under the First Amendment for the FCC to regulate the type of content it put out and the time it had to devote to opposing political views. (40)

         The Court upheld the FCC's regulation and ruled against the radio station. (41) The Court accepted that the broadcast media fell within the purview of the First Amendment, but acknowledged that the novel characteristics of broadcast media allowed for greater regulation than print media. (42) Because of the broadcasting spectrum's unique position as a scarce resource, the Court said that the government had the ability to enact laws and regulations to insure that all Americans have the right to access it. (43) This contention became known as the scarcity doctrine. (44) Along with the government's ability to grant licenses to radio and television stations, it was allowed to place certain restrictions on how those stations may deliver their product to the American people. (45) One of those restrictions was the type of content that can be broadcast over the public airwaves, (46) which has had enormous implications for all future cases. (47) According to the Court, the right of the public to hear more than one position from their radio station outweighed the station's freedom to broadcast the content it wanted. (48) The Court placed the First Amendment rights of listeners and the public ahead of those of broadcasters, establishing an important power relationship that has been preserved in cases since Red Lion.

      2. FCC v. Pacifica Foundation

         FCC v. Pacifica Foundation was the first case that specifically targeted the FCC's ability to sanction radio and television stations for broadcasting indecent content. (49) In 1973, a father and his young son were in the car during the afternoon and flipped to a radio station owned by the Pacifica Foundation that was broadcasting George Carlin's "Filthy Words" routine. The father was appalled by the language (50) used in the broadcast and complained to the FCC. (51) The FCC took his complaint very seriously and used it as the catalyst for a new policy, which allowed it to sanction broadcasters for airing indecent material. (52) Although it did not sanction the Pacifica Foundation outright, it issued a declaratory order in which it found that the language used was indecent (53) and warned that if there were further complaints about the "Filthy Words" broadcast...