In comments filed with the Federal Communications Commission, the Student Press Law Center urges the Commission to reconsider a strict enforcement regime that threatens broadcasters who air “fleeting” profanity with fines that can exceed the entire yearly budget for a student-run radio station.
“The threat of financial ruin, combined with the uncertainty engendered by an unpredictable enforcement regime, has chilled collegiate broadcasters’ speech. The FCC has forced collegiate broadcasters to adopt policies that favor self-censorship over free speech,” the SPLC said in comments filed June 19 in an FCC proceeding reexamining the Commission’s indecency enforcement standards.
Based in Arlington, Va., the Student Press Law Center is a nonprofit advocate for the legal rights of student journalists nationwide.
Since the Supreme Court’s landmark Pacifica ruling in 1978, involving a profane comedy monologue by George Carlin, the FCC has had legal authority to fine over-the-air broadcasters for airing “indecent” speech during prime listening hours. Until relatively recently, the Commission had rarely used its enforcement power. But beginning in 2002 with a case against Fox Broadcasting for a blurted swear-word during a live broadcast of the Billboard Music Awards, the FCC declared that it would begin penalizing even “fleeting” uses of nudity or profanity, and that even programs of journalistic or artistic importance would not necessarily be immune.
The Fox Broadcasting case and a series of accompanying cases were tied up in court for nearly a decade, until the U.S. Supreme Court threw out the fines in June 2012, saying broadcasters were not given fair warning of the FCC’s change in enforcement policy. The SPLC appeared as a friend-of-the-court in that Supreme Court case along with College Broadcasters, Inc., to speak on behalf of the interests of the student media.
Since that Supreme Court ruling, the FCC has begun closing thousands of old indecency complaints without penalty. In March 2013, the Commission issued a solicitation for comments on its indecency enforcement practices, asking for input as to whether “fleeting” nudity and profanity should be punishable.
In its June 19 filing, the SPLC reminded the FCC of its recent decision, announced in May, to offer limited amnesty from fines to student-run nonprofit educational broadcasters for recordkeeping violations such as failure to maintain an up-to-date licensing file for public inspection. The same concerns that motivated the Commission in that case – that educational broadcasters serve a uniquely valuable training role and face unique financial challenges – should likewise motivate the Commission to adopt a more lenient enforcement standard for the airing of profanity on student-run stations.
The SPLC noted that college broadcasters are deterred from offering live sports and news programming – programming of significant value to the listening audience – because of the risk that a bystander might blurt out a curse-word. The SPLC also highlighted the potentially unconstitutional vagueness and overbreadth of the Commission’s “fleeting expletive” standards, which enable the Commission to make case-by-case decisions about whether a program is punishable based on a subjective weighing of the “value” of the program.
“In recent years, we’ve seen too many colleges selling off their stations and denying their students the opportunity to get trained in over-the-air broadcasting. Anything that regulators can do to make broadcasting less burdensome for educational institutions would be a step toward reversing this worrisome trend,” said attorney Frank D. LoMonte, executive director of the SPLC.
“The world is a much different place than it was in 1978 when the Supreme Court last addressed the First Amendment implications of regulating profanity in broadcasting,” LoMonte said. “Songs that use profanity are at the top of the sales charts and are readily available at any hour of the day or night over the Internet or on premium subscription television, and yet the standards for FCC-licensed broadcasting have failed to evolve. As we’ve seen with programs like ‘The Daily Show’ on Comedy Central – a channel that is not subject to FCC indecency regulations – broadcasters will still edit out profanity in deference to their audiences’ tastes even without being forced to, but that decision should be theirs and not the government’s.”
The FCC has not announced when it will take action on the comments received in the current proceeding.
Executive director, Student Press Law Center