by Rick Rockwell
Could Rupert Murdoch be poised to change the U.S. television system? Again?
The court case FCC v. Fox Television Stations seems to have the potential to do just that.
Those who study television know Murdoch has sent seismic waves through the U.S. system (not to mention the U.K. and Australia, among others) at least twice before. His creation of the FOX network and how it acquired the rights to professional football altered the map of stations nationwide in the 1990s. Later, Murdoch followed by creating FOX News, which also upended cable television with FOX becoming the dominant cable news network and setting the aesthetic tone for television for much of the past decade.
FCC v. Fox seeks to challenge the ability of the Federal Communications Commission (FCC) to restrict language and content. (For more background, please see: "Making the FCC Irrelevant.") If Murdoch and Fox win, you can forget child safe programming on the major broadcast networks between 6 a.m. and 10 p.m., at least when it comes to live programming. The case looks to be a recalibration of the famed FCC v. Pacifica. Depending upon how the Supreme Court looks at this case, it could also challenge the very foundation of broadcast law in the U.S., which some broadcasters have called “moth-eaten.”
The heart of FCC v. Fox is about the use of profanities during live programs. The case deals directly with two incidents during the live broadcasts of the Billboard Music Awards on FOX in 2002 and 2003. The FCC ruled those incidents were indecent, but levied no fines. (FOX, the FCC and other networks are tangling over hundreds of thousands in indecency fines, which may also hang in the balance due to this case.) The Court of Appeals for the Second Circuit in New York overturned the FCC ruling, but now the Supreme Court will hear the case. Those FCC rulings came about due to the FCC changing its view of such incidents after U-2’s Bono (Paul David Hewson) shouted “fucking brilliant!” on NBC’s Golden Globe Awards telecast in 2003: the band had just won an award for best film song. Initially, the FCC said the Bono incident was alright, a one-time excited utterance, even if it happened in primetime. After pressure by Congress, the FCC reversed itself. Using that standard, the FCC went after FOX.
In 2002, on the Billboard Music Awards, singer Cher (Cherilyn Sarkisian LaPiere) said: "People have been telling me I'm on the way out every year? So fuck 'em." In 2003, again on the Billboard Music Awards, television personality Nicole Richie said: "Have you ever tried to get cowshit out of a Prada purse? It's not so fucking simple."
Broadcasters want the FCC over-ruled mainly because hundreds of thousands if not millions of dollars in future fines are at stake. The FCC's inconsistencies have also set it up for these appeals. Broadcasters are also claiming that the technology and monitoring needs are so complex to maintain these standards that live programming might cease. Of course, that claim is such an exaggeration as to be laughable. How is it that for decades the networks were able to usually succeed in censoring live broadcasts through delay systems of a few seconds, but now they claim to be unable to do this? If a Tivo can freeze live television, the networks certainly have the technology to monitor live broadcasts during the so-called “safe haven” hours, designed to protect children from profane speech.
This is what was at the heart of FCC v. Pacifica, when George Carlin’s famous “Seven Words You Can Never Say on Television” routine was played on Pacifica radio and a parent complained to the FCC. This ruling was so controversial in the 1970s that then fledgling HBO broadcast a television special with Carlin (his first for that cable network) with a special introduction. The program also featured a second warning, just before Carlin’s famous comic bit (you can see an adjusted version in two parts: here and here). The Supreme Court ruled then that the FCC has the right to set standards for profanity and indecency because broadcasters are using the public’s airwaves.
What will a more conservative court rule, even though current cultural and societal standards are far more liberal? This will prove to be a very interesting case because it splits the usual conservative constituencies. Murdoch, broadcasters and the corporations want less government regulation and oversight. Meanwhile cultural conservatives and evangelicals want more government intervention. Parents certainly want programming safe havens for their children and with cable parents have outlets for their own adult viewing.
As they say in television: stay tuned. This case may end up turning your TV inside out.
(Graphic from radicalgraphics.org, which offers its material for free. To see the arguments before the U.S. Second Court of Appeals in New York on this case, please check below.)
FCC v. Fox
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by Rick Rockwell