Hail to the Redskins, Fail to the FCC

Back on September 2, a law professor at George Washington University filed a petition with the Federal Communications Commission urging the FCC to ban the use of the term “Redskins” on broadcast networks as obscene, or profane, or even classified as hate speech. Regardless of a person’s opinion about whether that term is appropriate, what is clear is that the FCC’s authority to fine broadcasters for certain types of speech is very narrow, limited only to obscene, indecent and profane broadcasts, and those are defined in law as sexual or excretory in nature. Yesterday, the FCC issued a ruling that rightfully rejected the petition, which means that the FCC found that it had no authority to act in this case. While the use of the term “Redskins” may certainly be objectionable to many (and as a fan of the Dallas Cowboys, my personal objection to the Redskins runs deep), the word itself does not constitute obscenity, indecency or profanity in the current legal understanding of those terms. But here’s where the FCC is missing the mark: the FCC only required 107 days to issue its finding on this single petition, while the Commission has not issued a fine for violation of federal broadcast decency law since January 25, 2008 – 2520 days! Instead, the FCC has delayed and delayed. First the public was told it had to wait for the Supreme Court to rule in the “Fox II” case, which was decided back on June 21, 2012 – 911 days ago! Then in 2013, the FCC sought public comment on whether to change its indecency policy to focus only on “egregious” cases, and the public did just that – more than 100,000 comments were filed and they ran better than 1000-to-1 against any loosening of broadcast standards. The comment period in that proceeding ended on August 2, 2013 – 504 days ago! The FCC can act in a responsible, expeditious way on the matters it wants to, like the Redskins controversy – so why the seemingly unending delay for enforcement of broadcast decency law? The message from the American people is clear: enforce broadcast decency law, and do it now. With hundreds of thousands of unresolved complaints duly filed by the American people, there is no good excuse to delay.