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Super Bowl F-bomb could put FCC in a bind

February 4, 2013 by Scott Bomboy


After another obscenity incident involving CBS and a Super Bowl broadcast, the Federal Communications Commission is under pressure to fine the TV network.


Source: Creative Commons user Moe Epsilon
Joe Flacco. Source: Creative Commons user Moe Epsilon

A watchdog group says it wants the FCC to act after CBS aired audio of Baltimore Ravens quarterback Joe Flacco using the F-word and another player using a curse word. Both incidents happened right after the Ravens defeated the San Francisco 49ers in Sunday’s Super Bowl.


Last June, the U.S. Supreme Court confirmed the right of the FCC to fine over-the-air broadcasters if they aired profane words. It also said the FCC had to make its rules clearer to broadcasters. But the FCC hasn’t faced a high-profile profanity case until now since the Supreme Court ruling.


The Parents Television Council wants the FCC to act and set a precedent by fining CBS after Flacco’s choice of words.


“Now nine years after the infamous Janet Jackson incident, the broadcast networks continue to have ‘malfunctions’ during the most-watched television event of the year, and enough is enough,” PTC president Tim Winter said. “After more than four years of inaction on broadcast decency enforcement, the FCC must step up to its legal obligation to enforce the law, or families will continue to be blindsided.”


Entertainment Weekly said that CBS had instituted a time delay for the Super Bowl halftime show, featuring Beyonce, but it didn’t have a time delay set up for its on-field live television feed.


On Sunday, the political website The Hill interviewed several obscenity experts on the eve of the game, about the prospects of the FCC fining any broadcaster for obscenity or profanity violations.


That may not happen until FCC chairman Julius Genachowski resigns later this year.


“If the chairman waits a little bit longer, he may be gone. So it’ll be somebody else’s headache,” attorney Andrew Schwartzman told The Hill.


The Supreme Court sent a message on broadcast TV obscenity last June.


In one ruling, the decision in Federal Communications Commission v. Fox Television Stations was about three incidents where the FCC wanted to punish Fox and ABC for what it deemed as offensive content.


Fox was facing potential fines from the FCC for two incidents of “fleeting” cursing during live broadcasts involving Cher and Nicole Richie. ABC was in hot water for showing the naked buttocks of actress Charlotte Ross in an episode of NYPD Blue.


The Supreme Court found that the FCC didn’t provide fair notice to both networks. Also, the ruling was specific to the three incidents, and not meant to alter the FCC’s policy about broadcast regulations about obscenity.


Also in June 2012, the court refused to hear an FCC appeal after a lower court tossed out a $550,000 fine against CBS for the 2004 Janet Jackson halftime show incident.


The justices said the FCC had failed to give CBS proper notice, in that specific incident, after Jackson exposed herself briefly in front of a global TV audience.


Even though the court turned down the FCC case, Chief Justice John Roberts made his opinions very clear, after the FCC changed its policy on “fleeting expletives” and fined CBS for the Jackson incident after the Super Bowl.


“It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” Roberts said last June. “Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.”


In its official guidelines, the FCC says, “obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.”


Its rules for profanity are different.


“The FCC has defined profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’  Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.,” the FCC policy reads.


The PTC doesn’t have any issues with Flacco.


“No one should be surprised that a jubilant quarterback might use profane language while celebrating a career-defining win, but that is precisely the reason why CBS should have taken precautions,” says Winter.


“Joe Flacco’s use of the f-word, while understandable, does not absolve CBS of its legal obligation to prevent profane language from being broadcast—especially during something as uniquely pervasive as the Super Bowl. The instance was aired live across the country, and before the FCC’s designated ‘Safe Harbor’ time everywhere but along the East Coast.”


Broadcasters have argued unsuccessfully in a series of legal cases that the First Amendment protects them from FCC fines in such cases.


But it has been years since the FCC has issued a significant obscenity fine against a broadcast TV network.


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