Now that the dust has settled on a much-discussed U.S. Supreme Court term, this much can be said in entertainment law terms: For legacy media looking to dodge regulation and leap forward to keep up with newer, more nimble peers and competitors, three of the high court’s end-of-term decisions appear to have taken a truly retro course, reinforcing a regulatory landscape as it existed in 1978 and 1969, a paleozoic era by modern media standards.
While broadcast networks like Fox and CBS dodged indecency fines in the short term (See FCC v. Fox and FCC v. CBS Corp.), the sting of unique high court-approved second-class status for these operators bodes poorly for their future, especially in comparison to a few million dollars in since-retracted fines. In upholding cross-ownership rules — corporate prohibitions on owning a broadcast network and a newspaper in the same market –the restricted ownership in the embattled newspaper industry will continue.
Let’s see these decisions as two steps sideways and one step back.
FCC v. Fox Television Stations, Inc.
Peter Suderman does a great job of synthesizing the indecency issue:
First, singer Cher saying “So fuck ‘em” in an unscripted acceptance speech during an awards show broadcast by Fox; second, “a person named Nicole Richie” (as the ruling describes it) saying “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple” while presenting a Billboard Music Award, also on Fox; third, a seven second shot of a woman’s nude buttocks, along with a brief glimpse at the side of her breast, on a 2003 episode of ABC’s NYPD Blue. Source: Reason.com
By deciding this “fleeting expletive” case narrowly, on Fifth Amendment due-process grounds and avoiding the larger and more consequential First Amendment argument, the justices removed from the FCC’s hand the figurative bars of soap that it had sought to scrub out the potty mounths at Fox and ABC for nine years. Read the FCC v. Fox decision here.
But was this a pyrrhic victory for the networks? In striking the fine, the court based its decision on how the FCC regulated the networks, not whether the regulation should exist at all. Look back at FCC v. Pacifica, where the court struggled with not only the message but the medium — a radio broadcast — and it’s clear that the justices and the law can find themselves trapped in technological time warps. In an era when communications move at light speed (sometimes sadly from impulse to Tweet) and when bigger swaths of public discourse have grown vulgar, the high court seems swift to see regulation of broadcasters on content that they’re increasingly hard-pressed to control because it’s passing through their controls in a flash. With broadcasters increasingly reliant on live, unpredictable events to draw the biggest audiences, ratings and revenues, chances are that future incidents will arise — not only from award shows but even from so-called reality and scripted programming, whose envelope-pushing creatives, in cost-cutting eras, may be ever less closely vetted and edited.
On the bigger stage of live events, this decision offers a caution to broadcasters, with the networks on notice that even fleeting expletives are FCC-actionable.
FCC v. CBS Corp.
The second FCC broadcasting case concerns a now iconic — ?? — indecency incident of the 2000s: Janet Jackson’s fleeting skin display.
By denying cert in this Super Bowl “wardrobe malfunction,” CBS is off the hook for the $555,000 fine, which, by now, likely has been exceeded several times over by the network’s legal fees.
As with their broadcast rivals in Fox , CBS wins in the short term but is staggered for longer consequence: That’s because the FCC policy for cracking down on fleeting expletives — arguably “arbitrary and capricious” — as of the 2004 Superbowl, now is unambiguous. “It is now clear that the brevity of an indecent broadcast – be it word or image – cannot immunize it from FCC censure,” writes Chief Justice John Roberts in a passage that is sure to be cited in many future FCC briefs. 567 U. S. (2012).
In zapping CBS, Roberts’ first citation was to FCC v. Fox, decided only eight days earlier. While Professor Eugene Volokh comments that FCC v. Fox leaves the networks “uniquely less protected from content-based regulations,” all three of the decisions leave old media companies uniquely handicapped in one way or another, as compared with their new media or cable broadcasting peers: Critics have made the point that, yes, the majors attract big audiences. But so, too, now has the splintered audience flocked online or to cable, where neither justices nor the FCC has seen fit to impose a blue pencil. The argument about the “public” element of the broadcast airwaves can seem technologically quaint.
A Judicial Brush-Back
In Tribune Co. v. FCC, media companies complained that federal regulators single out newspapers among all forms of communication for unequal treatment. In three cases brought together, the high court upheld “broadcast scarcity,” first introduced 43 years ago in Red Lion Broadcasting Co. v. FCC, 295 US 367 (1969).
The “scarcity doctrine” prevents cross-ownership of a broadcast network and newspaper in a single media market. And on the final day of the term, the justices denied cert without comment, thus upholding the Third Circuit decision backing the FCC process for making changes. The justices then left for their summer vacation.
The FCC has not ignored completely the modern glut of consumer media. Since 2008, media companies in the top 20 markets can apply to the agency for a local, cross-ownership waiver. Media conglomerates — which wanted regulators to go even further — adopted a legal strategy of challenging FCC authority to modify the ownership rules.
While this proved a losing tactic, the mega media companies’ may experience less sustained pain because the FCC reviews its ownership rules, on its own, every four years. TheWRAP observes that the FCC could decide on its own to loosen the disputed regulations as early as the end of 2013. It’s curious that federal regulators spent years litigating to preserve ownership rules, even as the possibility of voluntarily making incremental change to modernize a doctrine adopted in the era of “I Love Lucy” might be more palatable (and face-saving) than a rebuke in the high court. Still, the justices’ refusal to so much as sniff at legal arguments about media cross-ownership can only be one more disheartening blow to legacy print-broadcast operators, already struggling with the reality that they now serve consumers last — long after mobile email alerts, social media and digital news outlets.
So in rat-a-tat fashion, as a result of some fast, closing high court rulings, some media will need to be leery of vulgar utterances and displays, while others will need to switch venue and tactics, turning to lobbying the FCC itself over cross-ownership changes. And all the legal eagles for these enterprises may wish to keep an eye out for the behind-the-scenes influence of Justice Ruth Bader Ginsburg, a native of the nation’s media capital and at least one voice for the FCC and her fellow septuagenerian and octagenerian colleagues to get with it when it comes to technological advances and the media. Those in print, on the air and online may wish to check out her short concurrence in the denial of cert in FCC v. CBS Corp., wherein Ginsberg chastised the FCC, especially regarding indecency, for charting an “uncertain course” since Pacifica. 567 U.S. (2012).
Photo Credits: “Networks vs. FCC” courtesy of AmericanDecency.org. “A Christmas Story” production still from “A Christmas Story”, Metro-Goldwyn-Mayer Films, 1983.