Recent Developments in Program Content Regulation (2005)

I. THE DEREGULATORY TREND THAT BEGAN IN THE 1970S II. 2004: STRENGTHENING OF RULES GOVERNING INDECENCY AND CHILDREN'S TV A. Indecency B. Children's Television on Digital Television III. ADDITIONAL CONTENT-BASED REGULATIONS SLATED FOR AGENCY CONSIDERATION IN 2005 A. Violence B. Proposed New Regulations to Promote Localism Beginning in the 1970s and continuing until this past year, there has been a strong and consistent tendency at the FCC to move away from program content regulation--and to place primary reliance on marketplace forces and on editorial decision-making within the private sector. In 2004, however, the Commission has moved on a number of fronts to consider the possible implementation of new and more rigorous policies governing content. In this brief Essay, the Authors will discuss: (1) the deregulatory trend that began in the 1970s, (2) beefed-up regulatory actions taken in the past year (specifically, in the fields of indecency and children's TV) and (3) other regulatory initiatives that are slated for consideration in the areas of violence and localism. I. THE DEREGULATORY TREND THAT BEGAN IN THE 1970S From the early days of broadcasting, the ECC--in carrying out its perceived public interest responsibilities--involved itself in the oversight and regulation of program content. And over the years, it adopted a broad array of rules and policies governing various aspects of broadcast programming. Then, beginning in the mid-1970s, the Commission began to chip away at this established regulatory regime. Some notable deregulatory landmarks in the past thirty years are set forth below: 1976: Abandonment of radio format regulation; 1976: Permitting on-the-spot coverage of political debates; 1981 and 1984: Liberalization of ascertainment requirements; 1987: Repeal of the Fairness Doctrine; 1995: Repeal of the Prime Time Access Rule; and 2000: Repeal of the Personal Attack and Political Editorializing Rules. II. 2004: STRENGTHENING OF RULES GOVERNING INDECENCY AND CHILDREN'S TV A. Indecency One major exception to the FCC's content--deregulatory program over the last thirty years has been the effort to restrict programming via the airwaves (defined generally as the description or depiction, in patently offensive terms, of sexual or excretory activities or organs). The Commission's regulatory initiatives in this area were based on two primary rationales: the unique pervasiveness of broadcasting into the American home and the presence of young children in the viewing and listening audience. In its seminal 1978 ruling in Pacifica, the Supreme Court upheld the Commission's authority to regulate indecent programming on precisely the same bases. In the ensuing years, broadcasters (with a few notable exceptions) have exhibited appropriate discretion by avoiding the airing of problematic material. In turn, the Commission's policies have demonstrated both restraint and good judgment. In particular, the Commission has established so-called safe harbor hours (10 p.m. to 6 a.m.) during which more adult programming can be aired. Its enforcement policies generally have reflected sensitivity to First Amendment values. Since the 1970s, most of the FCC's indecency sanctions have involved infractions by so-called radio shock jocks. Thus, it is somewhat ironic that, in 2004, four TV incidents have generated renewed attention to indecent programming and much more vigorous FCC enforcement (as well as bipartisan calls in Congress for greatly increased fines and, perhaps, even broadcast license renewal challenges). In March, the FCC unanimously reversed its enforcement staff in a case involving a live NBC telecast. In receiving a Golden Globes Award, U2 lead singer Bono uttered the phrase f***ing brilliant. Following established precedent, noting the comment's fleeting nature and also its nonsexual context, the staff dismissed the complaints received. …