Who Sets the Standard?

The outgoing chairman of the FCC wants to change the rules on what kind of content can be subject to enforcement action by the commission. Under current standards, any content that fits the legal definition of “indecent,” i.e. “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities,” can be subject to fines. But Chairman Genachowski wants to change the rules so that the FCC will only pursue complaints against “egregious” content. During the ten years of legal wrangling over whether or not the FCC has the constitutional authority to penalize broadcasters for airing indecent content, lawyers for the broadcast industry repeatedly argued that the FCC’s rules are too arbitrary and capricious. How could broadcasters abide by the law, when nobody could know what kind of content the FCC would find actionable. The claim, of course, was patently absurd; as the Supreme Court later found, when last summer it ruled that the FCC absolutely has the authority to enforce decency laws over the broadcast airwaves – it only erred in not telling the networks that even “fleeting” indecency could be fined. But by changing the standard from “anything that fits the legal definition” to only that which is egregious, any enforcement action taken by the FCC would necessarily be considered arbitrary and capricious, and would invite legal challenges from any network on the receiving end of fines issued according to that standard. Who decides what’s egregious? And how would the networks know what might be okay and what might be going too far? The supposed reason for the rules change is to cut back on the volume of indecency complaints received by the FCC… but that alone should be reason to not only NOT change the rules, but to be more vigorous in enforcing the existing rules. The only reason why the FCC would be receiving such a high volume of complaints is because millions of Americans are being bombarded on a daily basis with vulgar, violent, profane, and explicit sexual content over the broadcast airwaves THEY own. Surely that should signal to the FCC that the enforcement has been too lax in the past, that the broadcast networks feel confident they can continue to air such content without any fear of penalty from the FCC. So the FCC responds by giving them even more latitude to be even MORE offensive. According to a Zogby poll commissioned by the Parents Television Council, 75% of Americans say there is too much sex, violence and coarse language on television. What America wants -- and deserves -- is better enforcement of existing standards, not a lower standard.