The FCC in 2010: Seventy-Six Years of Obscenity, Indecency, and Inconsistency

• Author: Jordan Butler
• Position: Capital University Law School graduate, 2010
• Pages: 621-658

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THE FCC IN 2010: SEVENTY-SIX YEARS OF OBSCENITY, INDECENCY, AND INCONSISTENCY

JORDAN BUTLER^*

I. INTRODUCTION

Janet Jackson and Justin Timberlake know it well.¹Howard Stern likely knows it better.²Surely, CBS, NBC, ABC, and Fox secretly hate it.³Cable and satellite operators hope to remain free from its regulations.⁴

They all can thank George Carlin for introducing it to the world.⁵Yes, ―it‖ is the Federal Communications Commission (FCC or Commission)—the enemy to all broadcasters that tend to push the limits through the broadcast media of what Americans consider indecent material.⁶To the layperson, the FCC is the big, bad federal agency that bullies television networks and radio stations whenever the ―F-Word‖ (or certain parts of the human anatomy) slip out.⁷However, the FCC is not as big as many would expect. Its influence on what Americans see and hear, though, is enormous.⁸

Copyright © 2011, Jordan Butler.

* Capital University Law School graduate, 2010. I would like to thank Professor Bradley Smith for his guidance and review of this article. Special thanks to Elliot Garvey, my editor, as well as the rest of the Capital University Law Review staff. Finally, thank you to my family and friends for their support.

¹See CBS Corp. v. FCC, 535 F.3d 167, 171–73 (3d Cir. 2008).

²See, e.g., Sagittarius Broad. Corp. v. Evergreen Media Corp., 641 N.Y.S.2d 267, 268 (N.Y. App. Div. 1996) (describing how the FCC planned ―to pursue an unprecedented escalation of fines and other regulatory actions against‖ stations that broadcasted the Howard Stern show); Seth T. Goldsamt, “Crucified by the FCC”? Howard Stern, the FCC, and Selective Prosecution, 28 COLUM. J.L. & SOC. PROBS. 203, 203–05 (1995).

³See, e.g., FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1807–10 (2009); CBS Corp., 535 F.3d at 171–73.

⁴See generally Bill Kenworthy, Timeline: Broadcast Decency, FIRST AMENDMENT

CENTER, http://www.firstamendmentcenter.org/about.aspx?id=17491 (last visited Jan. 29, 2011) (showing that cable and satellites operators are not held to the same indecency standard as broadcast operators).

⁵See FCC v. Pacifica Found., 438 U.S. 726, 729 (1977).

⁶See Kenworthy, supra note 4.

⁷See CBS Corp., 535 F.3d at 172; Pacifica, 438 U.S. at 751–52.

⁸See History of Communications, FCC, http://www.fcc.gov/omd/history/ (last visited Jan. 29, 2011).

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On February 1, 2004, approximately 90 million Americans saw Janet Jackson‘s breast on live broadcast television.⁹Exposure was brief, a mere half-second, but the fallout lasted much longer.¹⁰Jackson, the victim of a ―wardrobe malfunction,‖¹¹was exposed during the halftime show of Super Bowl XXXVIII, which was aired by CBS.¹²Jackson and Justin Timberlake were performing one of Timberlake‘s songs when at the end of the song Timberlake tore off part of Jackson‘s wardrobe, creating the exposure.¹³A bra was supposed to cover Jackson‘s breast once Timberlake tore off the top cover, but something went awry and all material covering Jackson‘s breast was removed.¹⁴That mere half-second of exposure set off a firestorm of controversy in America,¹⁵leading to FCC involvement, court cases, debate, and even some questioning the morality of America.¹⁶

That half-second of exposure, dubbed Nipplegate,¹⁷altered the American landscape in 2004. Senator Zell Miller questioned America‘s decency following the incident.¹⁸One person wrote that ―[t]he radical Muslims who criticize our culture as degraded and demoralizing now have new proof for their charges.‖¹⁹New York Times columnist Frank Rich, writing one year after the incident, described the fallout by stating that ―[t]he ensuing Washington indecency crusade has unleashed a wave of self-censorship on American television unrivaled since the McCarthy era, with everyone from the dying D-Day heroes in ‗Saving Private Ryan‘ to

⁹CBS Corp., 535 F.3d at 171.

¹⁰Id. at 172.

¹¹Apologetic Jackson Says ‗Costume Reveal’ Went Awry, CNN (Feb. 3, 2004, 7:58 AM), http://www.cnn.com/2004/US/02/02/superbowl.jackson/.

¹²CBS Corp., 535 F.3d at 172.

¹³Apologetic Jackson, supra note 11.

¹⁴Julie Hilden, How the Janet Jackson ‗Nipplegate’ Scandal Illustrates the Danger of Chilling Free Speech, FINDLAW (Feb. 17, 2004), http://writ.news.findlaw.com/hilden/2004 0217.html.

¹⁵See id.; CBS Corp., 535 F.3d at 172 n.2.

¹⁶See discussion infra Part III.

¹⁷Jackson Still a Bearable Icon, NEWSDAY, Aug. 8, 2006, at A12 (―[T]he incident— variously referred to as ‗Nipplegate‘ and ‗bra-ha-ha‘—is history.‖).

¹⁸‗A Deficit of Decency,’ SALON.COM (Feb. 13, 2004), http://dir.salon.com/story/opin ion/feature/2004/02/13/zell/index.html.

¹⁹Phyllis Schlafly, Another CBS Travesty, EAGLE FORUM (Feb. 11, 2004), http://www. eagleforum.org/column/2004/feb04/04-02-11.html.

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cuddly animated animals on daytime television getting the ax.‖²⁰Some

have even gone so far as to suggest that the incident helped President George W. Bush get reelected in 2004.²¹

The FCC quickly became involved upon receiving an unprecedented 542,000 complaints regarding the incident.²²The Commission found the halftime show to be indecent²³and issued to Viacom, parent company of CBS, fines totaling $550,000 or $27,500 for each of Viacom‘s twenty stations that aired the program.²⁴CBS took the FCC to court over the fines, and in 2008, the Third Circuit ruled in favor of CBS, vacating the fines.²⁵However, the matter is still not settled because the Supreme Court of the United States vacated the ruling in 2009 and remanded it to the Third Circuit Court of Appeals to reconsider²⁶in light of the 2009 Supreme Court ruling in FCC v. Fox Television Stations, Inc.²⁷Private citizens even became involved, as one Utah man sued Viacom for false advertising because he claimed that he was led to believe by pre-game advertising that the halftime show would be family-oriented and patriotic.²⁸The case was dismissed because the man filed the complaint in the wrong venue.²⁹

The now famous wardrobe malfunction brought the FCC to the forefront of American culture. In April 2004, Jackson even spoofed the incident on Saturday Night Live where, playing U.S. Secretary of State Condoleezza Rice addressing the September 11 Commission Hearings, she flashed a heavily blurred breast to distract from her testimony.³⁰Satirical

²⁰Frank Rich, The Year of Living Indecently, N.Y. TIMES, Feb. 6, 2005, § 2, at 1, available at http://www.nytimes.com/2005/02/06/arts/06rich.html.

²¹See id.

²²In re Complaints Against Various Television Licensees Concerning Their Feb. 1, 2004 Broad. of the Super Bowl XXXVIII Halftime Show, 19 FCC Rcd. 19230, 19231 n.6 (FCC 2004).

²³Id. at 19236.

²⁴Id. at 19230.

²⁵CBS Corp. v. FCC, 535 F.3d 167, 171 (3d Cir. 2008).

²⁶FCC v. CBS Corp., 129 S. Ct. 2176, 2176 (2009).

²⁷129 S. Ct. 1800 (2009).

²⁸See Judge Rules Against Super Bowl Viewer, YAHOO! MUSIC (May 27, 2004, 2:03 PM), http://new.music.yahoo.com/janet-jackson/news/judge-rules-against-super-bowl-view er--12176746.

²⁹Id.

³⁰Janet Jackson Spoofs Wardrobe Malfunction, YAHOO! MUSIC (Apr. 11, 2004, 7:09 PM), http://new.music.yahoo.com/janet-jackson/news/janet-jackson-spoofs-wardrobe-mal function--12176334.

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newspaper The Onion mocked the public reaction and the demand to crack down on indecency in an article titled ―U.S. Children Still Traumatized One Year After Seeing Partially Exposed Breast on TV.‖³¹Yet, at the center of all the debate was the FCC, and the 2004 Super Bowl Halftime show only served as a jumping off point for tighter regulation of indecency and increased fines.³²However, the FCC had the authority to regulate indecency in broadcast television and radio long before this incident; so the question is: How did we get to this point?

This article explores the FCC‘s authority and growth. It also explores the evolution of the terms ―indecent‖ and ―obscene.‖ Finally, this article discusses the future of the FCC and its drive to regulate subscriptions services such as cable and satellite television and radio.

II. HISTORICAL BACKGROUND: WHERE DID IT COME FROM AND WHAT DOES IT DO?

A. 1927–1934: Pre-FCC

The Radio Act of 1927 created the Federal Radio Commission.³³Its

responsibilities were, among others, to classify radio stations, assign bands of frequencies and wavelengths to various classes of stations, regulate the equipment used by stations, and make regulations to prevent interference between stations.³⁴The Federal Radio Commission only lasted seven years though, because Congress repealed the Radio Act of 1927 in 1934.³⁵

B. 1934–1969: Creation of the FCC

The Communications Act of 1934 created the Federal Communications Commission (FCC).³⁶The Commission was responsible for:

regulating interstate and foreign commerce in communication by wire and radio so as to make available . . . a rapid, efficient, Nation-wide, and world

³¹U.S. Children Still Traumatized One Year After Seeing Partially Exposed Breast on TV, THE ONION (Jan. 26, 2005), http://www.theonion.com/articles/us-children-still-trauma tized -one-year-after-seein,1285/.

³²Frank Ahrens, The Price for On-Air Indecency Goes Up, WASH. POST, June 8, 2006, at D1.

³³47 U.S.C. § 83 (1927) (repealed 1934).

³⁴Id. § 84.

³⁵Id. §§ 81–85.

³⁶Id. § 151 (2006).

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wide wire and radio communication service . . . for the purpose of the national defense, [and] for the purpose of promoting safety of life and property through the use of wire and radio communications.³⁷

The FCC is an independent U.S government agency that is directed by five Commissioners.³⁸The President appoints and the Senate confirms the Commissioners to serve five-year terms.³⁹Only three of the five Commissioners may be...