Examining the FCC's Indecency Regulations in Light of Today's Technology

I. INTRODUCTION II. BACKGROUND III. HISTORICAL PERSPECTIVE A. The Perception of Children B. The Transformation of the Definition of Indecency IV. JURISPRUDENCE A. Federal Communications Commission v. Pacifica B. The Creation of "Safe Harbors" C. Federal Communications Commission v. Fox D. Federal Communications Commission v. Fox, Remanded III. THE CURRENT LANDSCAPE A. Advances in Technology B. Why Safe Harbors No Longer Make Sense VI. PROPOSAL FOR THE FUTURE VII. CONCLUSION I. INTRODUCTION "A babe in a house is a well-spring of pleasure, a messenger of peace and love: A resting place for innocence on earth; a link between angels and men." (1) With a prevalent attitude in this country that children are innocent beings, it is not surprising that the FCC used the protection of children as a reason to regulate indecency in the broadcast media through legislation such as the Communications Act of 1934. (2) By keeping the airwaves flee from indecent material, children would, in theory, be able to retain the innocence that they are seen to possess. While these FCC regulations have evolved over time, the recent advances in technology have made these regulations infeasible and illogical. If the goal is still to protect children from indecent material that is broadcast over the airwaves, something in the system needs to change, because children have multiple avenues through which they can access material that is broadcast at all hours of the day. Deregulating appears to be the most practical and effective option that is currently available, and is an effort that the FCC should consider undertaking. Along with providing a different proposition for the future of these ineffective broadcast regulations, this Note will examine how the perception of children as innocent beings led to the regulation of indecent broadcast material. It will also look at the evolution of the definition of indecency, including a look specifically at the Supreme Court decisions in the 1978 case of Federal Communications Commission v. Pacifica Foundation, (3) the 2009 decision remanding Federal Communications Commission v. Fox Television Stations (4) to the Second Circuit, and that 2010 decision by the Second Circuit. (5) Finally, the current advances in technology, including television's availability on the Internet and digital video recorders (DVR), will be discussed. These advances have made children's access to broadcast media much easier, thus making the indecency regulations no longer feasible in today's increasingly technological world. A recommendation for the future of indecency regulations will also be suggested, so that the law more realistically aligns with the technology available today. This proposal is a move toward complete deregulation of broadcast television in regard to indecent material. The regulations are no longer effective, and have the potential to be costly to both the networks-if they keep being the subject of litigation and fines--and to the public as a violation of the First Amendment. By deregulating, the networks would have greater freedom to broadcast according to the public's interests and what they deem to be appropriate without fear of penalties. Further, giving the networks more freedom will benefit the networks themselves and the public that wants access to this type of material; but it will not cause any great harm to anyone. The material that is made available on television is not likely to change in a drastic way, since the networks would lose many viewers if their broadcasts became too indecent for the public as a whole. Further, children would not be any more harmed by the material that is broadcast, because, in addition to it likely being very similar in nature to what is currently being broadcast by the networks-children are going to gain access to this material through DVR and television on the Internet anyway. …