FCC Hits TV Station With Maximum Fine for Fleeting Nudity in Newscast

The Federal Communications Commission has fined a television station $325,000 for allegedly broadcasting “extremely graphic and explicit sexual material”, i.e., indecent material.  The amount of the fine, underlying facts and the Commission’s reasoning for issuing the fine raise serious concerns:

On July 12, 2012, WDBJ(DT) in Roanoke, Virginia broadcast a 6:00 pm news story about whether the local rescue squad would let a volunteer, who was an ex-porn star, continue volunteering after an initial six month trial period.  The Roanoke Fire Chief sought legal advice from the County Attorney on the matter.  The story ran 3 minutes and 20 seconds.  The introduction to the story included video of the former adult film star from an adult video distributor’s web site.  The majority of the three-second video was of the former adult film star sucking her finger.  Along the border on the right side of the same video were several smaller images, one including a hand stroking an erect penis.  

This is the first instance where the FCC has issued the maximum fine to a broadcaster since Janet Jackson and the Super Bowl more than a decade ago.  The fine raises several concerns. First, the Commission discounts (indeed ignores) the newsworthiness of the story and the fact that it ran during the station’s 6:00 p.m. news.  Second, the Commission argues that the graphic nature of the allegedly indecent material outweighs the fleeting nature of the video.

In the decision, the FCC takes the position that imposing fines for fleeting expletives/videos remains constitutional.   The Commission cites as support a concurring opinion from a Supreme Court case in 2012 that focused on fleeting expletives.  That case however overturned a Commission decision imposing administrative sanctions for the broadcast of fleeting expletives.  The Supreme Court concluded that the Commission failed to issue the appropriate Public Notice in 2004 informing the public of the Commission’s policy change to start imposing fines for fleeting expletives.  It was because of the FCC’s lack of public notice that an appellate court dismissed the FCC’s fine of $550,000 in the Janet Jackson case. The Supreme Court declined to hear the FCC’s appeal of that decision.

The fleeting expletive case has reached the Supreme Court twice in the past several years, most recently in 2012.  The Supreme Court decisions in both instances ruled narrowly, basing their decision on the administrative issues facing the court and not whether fleeting expletives were constitutional.  A careful reading of the two Supreme Court cases and the oral arguments suggests that a majority of the court is more likely than not to rule that fining broadcasters for fleeting expletives is unconstitutional.

The Commission decision yesterday was 5-0.  Regrettably, “cleaning up the airwaves” has a good ring to the public, whether the Commissioner is Republican or Democrat.

As a result of yesterday’s action, the Commission’s fleeting expletive policy remains in full force and effect.  Further, the Commission appears unwilling to conduct the proper rule making proceeding to evaluate the fleeting expletive policy in light of the Commission.  Instead, the Commission’s position appears to be “business as usual” on fleeting expletives.

WDBJ(DT) intends to appeal the Commission’s decision.  It will take several years, but perhaps this case (or another like it) will eventually make its way to the Supreme Court and perhaps this time the Supreme Court will rule on the constitutionality of fleeting expletives.

In the interim, broadcasters must remain vigilant.  Until there is a change in the law (or in the Commission’s policy), all it takes is one oversight and three seconds of “indecent material” for the Commission to impose a maximum forfeiture.

Lessons from Aereo: Laws, Litigation and Loopholes

In a case with far-reaching implications for the television business, for cloud computing and for new technologies, the U.S. Supreme Court found that Aereo’s online video service infringed copyrights held by television producers, broadcasters, marketers and distributors in broadcast television programming.  In a 6-3 decision, the Court decided in American Broadcasting Cos., Inc. et al. v. Aereo, Inc., FKA Bamboom Labs, Inc. that Aereo “publicly performs” a copyrighted work within the meaning of the Transmit Clause of the U.S. Copyright Act and thereby infringed exclusive rights of the copyright holders because Aereo did not license the content.  

Aereo’s service allows subscribers, for a monthly fee, “to watch television programs over the Internet at about the same time as the programs are broadcast over the air.” According to Aereo, the system consists of thousands of small antennas in centralized location that receive over-the-air broadcast programming. The company uses special equipment to allow subscribers to stream the programming. The petitioners in this case were copyright holders who sought a preliminary injunction against Aereo, alleging copyright infringement. The Court did not rule on other claims of copyright infringement raised in the lower courts.

Justice Stephen Breyer, writing for the majority, wrote that Congress amended the Copyright Act in 1976 in part to overrule two U.S. Supreme Court decisions (Fortnightly Corp. v. United Artists Television, Inc. and Teleprompter Corp. v. Columbia Broadcasting System, Inc.) that held that cable systems’ retransmissions of over-the-air broadcasts were not public performances under the Copyright Act. He concluded that

having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differ­ences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activi­ties outside the scope of the Act.

The majority found, in essence, that Aereo’s system was the modern equivalent of these early CATV, or community antenna television, systems, which used centralized antennas on hilltops or other sites to receive off-air broadcast signals and retransmit those signals via coaxial cable to subscriber homes.  Justice Antonin Scalia, writing the dissent, rejected the majority’s conclusion about Aereo’s resemblance to cable TV services, finding that sufficient technological distinctions existed for purposes of the public performance right and that the majority’s ruling was an “ad hoc rule for cable system lookalikes.” He also argued that Aereo could not be held directly liable for copyright infringement on public performance grounds because “it does not make the choice of content” and therefore does not “perform.” That said, the dissent makes clear that other legal grounds for potential copyright liability were not before the Court, stating that the Networks’ “request for a preliminary injunction – the only issue before this Court – is based exclusively on the direct-liability portion of the public-performance claim (and further limited to Aereo’s ‘watch’ function, as opposed to its ‘record’ function).”

The majority described its decision as a “limited holding” and that Congress “did not intend to discourage or to control the emergence or use of different kinds of technologies.” Justice Breyer wrote:

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that '[q]uestions involving cloud computing,[remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.” … And we note that, to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress…

The majority did not address the legal effect of Cartoon Network LP, LLLP v. CCS Holdings, Inc., a 2008 decision by a panel of the U.S. Court of Appeals for Second Circuit. In ruling for Aereo in 2013, a three-judge panel of the same Court cited the Cartoon Network case for the proposition that Aereo’s transmissions were not “to the public” for purposes of the Transmit Clause.  Cartoon Network involved whether transmissions using remote storage DVR services were public performances for purposes of the Copyright Act. While the precise legal issue in Aereo involved near-real-time streaming rather than content storage, the omission is noteworthy because Aereo reportedly relied on the Cartoon Network precedent in designing its system. 

Some Implications of the Court's Decision

There is much ambiguity in the Court’s decision, and its application to new technologies will be a source of much analysis and debate. Even if Aereo had prevailed on the public performance claim at the preliminary injunction stage, other theories of copyright liability would have been considered in further proceedings on remand. In addition, the Court’s decision on public performance grounds meant that the Court did not need to determine whether Aereo would have qualified as a “cable system” that was eligible to obtain statutory copyright licenses for the broadcast programming. Similarly, the Court did not look beyond copyright law to communications law and the rules for broadcast retransmission consent. Moreover, the “record” function was not at issue in the case, so the decision’s application to cloud storage services is undetermined at the U.S. Supreme Court. In short, Aereo represents only a portion of the larger legal picture.

I’ve said before that disruption does not occur in a vacuum. The multi-billion-dollar marketplace for video programming services is shaped heavily by regulatory forces. Franchising, copyright, retransmission consent and other legal issues play a role in defining the industry’s buyers and sellers, as well as the terms and conditions of the availability of programming. New providers must manage a variety of legal and regulatory risks to enter and to succeed in this marketplace.

Aereo’s legal approach challenged the existing business model in an effort to bypass licensing negotiations to determine compensation for copyright holders. Chief Justice John Roberts told Aereo’s counsel at oral argument that “your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine.” The majority’s reasoning ties Aereo’s practices to precedent from decades ago, despite the technological differences between today's cloud/DVR/Internet services and the community antennas of that era.  Justice Scalia in dissent stated that “I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it.” A major point of contention between the majority and the dissent is whether the case showed that Copyright Act had a “loophole” that should be addressed by the Court or by Congress.

It is noteworthy that the result in Aereo turned less on nuanced technological distinctions and more on broader legal policy:

In other cases involving different kinds of service or technology providers, a user’s involvement in the opera­tion of the provider’s equipment and selection of the con­tent transmitted may well bear on whether the provider performs within the meaning of the [Copyright] Act. But the many similarities between Aereo and cable companies, consid­ered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here.

This language also illustrates the challenges in applying to new technologies the longstanding legal principle of stare decisis, which means judicial adherence to settled precedent from prior decisions.  The majority endeavored to use legislative history and “Congress’ basic purposes in amending the Copyright Act” to fit Aereo’s business practices into legal precedent. Whether made by lawmakers, judges or regulators, legal rules have a difficult time keeping up with technological change. Rules that are too specifically tailored run the risk of being rendered obsolete, while broader rules can be more vague and difficult to apply as a matter of stare decisis.

The majority stressed that its holding was “narrow” in terms of the intended impact on new technologies. For now, expect the ruling to result in more payments to producers, broadcasters and copyright holders when program distributors seek to license retransmissions of broadcast programming. In any case, as new providers seek to become video programming distributors and existing providers evaluate their options, Aereo will be an important legal touchstone for assessing new business models and technologies for the delivery of broadcast programming.


The FCC has eliminated the Zapple Doctrine, bringing to a close the last vestige of the Fairness Doctrine.  The Zapple Doctrine required that when a broadcaster provided time to a spokesperson or supporter of one candidate to discuss the candidates or campaigns in a particular race, that the station provide comparable time to a spokesperson or supporter of the candidate’s opponent.

The Fairness Doctrine was established in 1949 as part of the FCC’s efforts to require broadcasters to adequately cover, and to air conflicting viewpoints on, issues of public importance.  The Fairness Doctrine expanded over time to include ballot propositions, personal attack and political editorial rules and the Zapple Doctrine.

The Fairness Doctrine survived a constitutional challenge in 1969 in Red Lion Broadcasting v. FCC but could not survive the rigors of time.  In 1987, the FCC decided to stop enforcing the Fairness Doctrine, concluding that the doctrine did not serve the public interest.  In 1992, the U.S. Court of Appeals for the D.C. Circuit held that the personal attack and political editorial rules and ballot propositions were unenforceable and repealed these rules. This left the Zapple Doctrine as the only surviving remnant of the Fairness Doctrine.

Until now. In two recent decisions the Media Bureau granted the license renewal applications of two AM radio stations in Milwaukee, Wisconsin over the objection of a public interest group.  The group claimed the licensees refused to provide air time to supporters of one candidate to respond to statements aired on the stations by supporters of the opposing candidate.  The public interest group claimed the refusal violated the Zapple Doctrine.  The Media Bureau rejected these arguments, noting that the opposition to the license renewal was based on the programming choices by the stations.  The Media Bureau reaffirmed the well-established legal principle that the Commission cannot exercise the power of censorship over stations with regard to content-based programming decisions.  The licensee has broad discretion to choose the programming it believes serves the needs and interests of the members of its audience.  The Commission will intervene only if the licensee abuses that discretion or directed by federal statute.

The Media Bureau held that it had no basis to enforce the Zapple Doctrine, because this doctrine was based on an interpretation of the Fairness Doctrine that was no longer in effect.  The Media Bureau pointed out that the FCC abrogated the Fairness Doctrine in 1987 and in 2011 deleted rules enforcing the doctrine as defunct, obsolete and without current effect.  The Media Bureau concluded that the Zapple Doctrine similarly has no legal effect.

This does not mean that broadcasters have carte blanche to broadcast whatever content they desire.  The Commission’s political advertising rules regarding equal opportunities and lowest unit charge and the Commission’s policy regarding indecency, including fleeting expletives, remain in effect.  Federal statute makes the broadcasting of indecent, obscene and profane material a crime.

When it comes to editorial content, however, broadcasters now can breathe easier.

FCC Reopens; Issues Guidance on Revised Filing Deadlines

Now that this month's Federal Government shutdown is over, and after a 16-day suspension in normal operations, the Federal Communications Commission has issued a Public Notice announcing revised deadlines for submitting certain FCC filings. The changes were needed because many of the agency's regular electronic filing systems and web pages were inaccessible during the shutdown. As a result, licensees, applicants, participants in rulemaking proceedings and other interested parties will want to carefully review the Public Notice to help ensure that their FCC filings are made in a timely manner. 

A Role for WISPs in FirstNet

In recent months, WISPs have been sharing their ideas and concerns about FirstNet and its effect on the WISP industry.  As you may know, Congress gave FirstNet $2 billion dollars and an IOU for $5 billion more to establish a nationwide wireless LTE first-responders’ network. The FCC gave FirstNet 20 MHz of 700 MHz spectrum to use for free. Only in America can a company be so well funded without a management team, business or technical plan. But that is all changing, very fast.


A Role for WISPs in FirstNet


FirstNet turned out to be a big topic of conversation during the recent WISPAmerica conference in Covington, KY. FirstNet board member Ed Reynolds, a former wireless executive widely credited with successfully merging AT&T with BellSouth, spoke to WISPs about FirstNet. He saw that WISPs are in a good position to help stand up this new network, particularly in rural areas where the big carriers have not already built LTE networks.


This much is clear: WISPs have an opportunity to work with FirstNet. Existing wireless, tower, and backhaul infrastructure can be leveraged in return for financial consideration and, potentially, to access 700 MHz spectrum for commercial use in return for building the LTE first-responders network.


Technical parameters are being developed.


WISPs most often ask us about the technical parameters and capabilities of the proposed network. Technical specifications remain to be determined, and because so much remains to be decided, this is not an opportunity that every WISP can get their arms around. At this early stage, some of the unanswered questions are set to be resolved in this FCC Notice of Proposed Rulemaking:



The FCC is considering initial rules to implement a statutory framework for deploying and operating the nationwide public safety broadband network. The main topic areas in the NPRM include 1) technical service rules, such as power limits, emission limits, field strength limits and interference coordination, 2) comment on the FCC’s exercise of the FCC’s statutory responsibilities relative to the oversight of FirstNet and 3) addressing how to treat different classes of incumbents in the FirstNet spectrum, which will use both the existing broadband public safety spectrum (763-769/793-799 MHz) and the D Block spectrum (758-763/788-793 MHz).


Interested WISPs are taking action.

 With the support of  WISPA’s Emergency Communications Action Team (WECAT), and as its counsel, we have organized a group of motivated WISPs seeking to impose rural construction milestones on FirstNet (to encourage partnering with WISPs to help ensure that this spectrum is utilized).  The FCC notice is here:


Our hope is that this group of WISPs will pave the way for broader participation by WISPs in FirstNet. In the meantime, we are working to raise awareness of the many contributions WISPs can make to the success of FirstNet.

Regional workshops and state-level coordination

For now, FirstNet is holding six regional consultation workshops in May and June of 2013.  These meetings represent the formal kick-off of FirstNet’s consultation and engagement with state, regional, tribal, and local jurisdictions and public safety entities.  During these meetings, FirstNet is providing a project update and is gathering input from attendees about their state’s specific, and often unique, requirements and priorities. What FirstNet members learn in each regional workshop will help FirstNet design the network and conduct an effective vendor RFI/RFP process. This will in turn drive the timeline for delivering the state-level build-out plans needed so each state can evaluate its participation in FirstNet.

States have the right to opt-out of participating in FirstNet. WISPs are well advised to stay connected to learn who each State appoints to coordinate with FirstNet, and to introduce yourself and your company’s capabilities. WECAT has been working successfully to raise awareness of WISPs generally within FirstNet and at NTIA. Our progress was clear when FirstNet agreed to send Ed Reynolds to WISPAmerica.

A copy of the presentation of FirstNet Board members from the first regional workshop is posted on FirstNet’s page on the NTIA website (http://www.ntia.doc.gov/category/firstnet). The NTIA website is one of the best sources for information about FirstNet and to find requests for proposals from FirstNet.

Controversy in the Capitol


Of course, FirstNet is not without drama. What would life be like in Washington, DC without drama?


Sheriff Fitzgerald of Store County, Iowa, a FirstNet Board member, dropped a bombshell at the last Board meeting when he accused other Board members of improper conduct in awarding consulting agreements and in failing to share information and to conduct open meetings. Some in the public safety community say that the Board is dominated by large wireless companies that wish to commercialize the spectrum, a feeling some WISPs have conveyed to me.


It doesn’t help dispel this perception that its new CEO, Bill D’Agostino, Jr., just left Verizon to join FirstNet.  I have said before that there will be Congressional hearings long before there is a network and for now, lawyers are left to look into the charges. We haven’t heard the last on this issue.


Nor have we heard the last about FirstNet. Despite the skepticism I share with many about FirstNet and about the role of government in standing up a wireless network, there are opportunities to work with FirstNet to do good in your communities, to monetize the spectrum and leverage the build-out in ways that cannot be ignored.


Leonard Bernstein reportedly said that to achieve great things, two things are needed: a plan, and not quite enough time.

In that vein, the U.S. Supreme Court, by a 6-3 vote, has upheld the Federal Communications Commission’s interpretation of provisions of the Communications Act of 1934 that require state and local zoning authorities to act on certain wireless service providers’ antenna-siting applications within a “reasonable period of time.” More broadly, the Court’s decision addresses the degree of deference that reviewing courts must give a federal agency’s interpretation of statutory provisions that define the agency’s legal authority.

City of Arlington v. FCC involves a petition brought by certain state and local governments.  In 2009, the FCC issued a Declaratory Ruling establishing its interpretation of what constitutes a “reasonable period of time” for state and local governments to process antenna-siting applications under Section 332(c)(7)(B)(ii) of the Communications Act. The Declaratory Ruling acted on a petition filed by CTIA – The Wireless Association on behalf of certain wireless service providers. While state and local governments have legal authority to regulate the location, construction and modification of certain defined “personal wireless facilities,” the Communications Act places specific limits on this authority, such as the requirement to process wireless-siting applications within “a reasonable period of time.”

The FCC stated in the Declaratory Ruling that “unreasonable delays” in the siting process had “obstructed the provision of personal wireless services.” The FCC determined that a “reasonable period of time” is presumptively 90 days to process a collocation application and 150 days to process all other applications. 

The Petitioners challenged the FCC’s authority to interpret “ambiguous provisions” of the statute; here, relating to judicial review of wireless-siting decisions and a savings clause that provided that only those provisions in Section 332(c)(7)(B) “shall limit or affect the authority of a State or local government” over siting decisions. While the law requires reviewing courts to afford an agency a measure of discretion in the agency’s interpretation of ambiguous statutes, the Petitioners characterized the FCC’s action as that agency’s effort to interpret “its own jurisdiction.”

Generally, a reviewing court considers a federal agency’s construction of the statute it administers based on two principles: whether Congress has spoken directly to the precise question at issue, and if not, whether the agency has addressed the issue with a permissible construction of the statute. Justice Scalia, writing for the majority, rejected the Petitioners’ objection to the FCC’s interpretation of its jurisdiction. He stated that “judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” Justices Thomas, Ginsburg, Sotomayor and Kagan joined in the opinion, and Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justices Roberts, Kennedy and Alito dissented. 

The City of Arlington decision could shape other pending cases where the scope of the FCC’s regulatory authority is at issue.  For example, Verizon has a case before the U.S. Court of Appeals for the D.C. Circuit that challenges the FCC’s authority to regulate Internet Service Providers via the “Open Internet” rules.  Elsewhere, a separate pending case in the U.S. Court of Appeals for the 10th Circuit involves petitions for review of the FCC’s “USF/ICC Transformation Order” establishing the Connect America Fund for federal broadband subsidies.  While these cases involve different facts and may lead to different results, there’s good reason to think that the City of Arlington precedent will be reflected in these and other future cases.  In the meantime, the decision confirms that providers whose services are covered by the statute now have additional legal support in seeking timely approvals for sites for towers and antennas.

FCC's Outage Reporting Rules Take Effect for Interconnected VoIP Services

In the aftermath of Hurricane Sandy and other recent natural disasters, there is increasing focus on how communications networks weather these storms. In addition to significant, sometimes catastrophic, harm to life and property, severe weather events also sometimes create significant network disruptions or outages, leaving business and residential customers without critical voice and data services. These events make the Federal Communications Commission’s recent expansion of its outage reporting requirements particularly timely.

Under rules that are effective as of yesterday, the FCC has expanded its communications network outage reporting requirements to include providers of interconnected Voice Over Internet Protocol (VoIP) services. As a result, when a VoIP provider suffers an “outage,” defined by the FCC as “a network failure or degradation that significantly degrades the end user’s ability to make or maintain communications,” the VoIP provider must report the outage to the FCC if the outage meets specific criteria. The FCC states that in the case of interconnected VoIP, it interprets "outage" to mean a complete loss of service and/or connectivity to customers, and the provider is deemed to have suffered a reportable outage: 

  • "If the outage even potentially affects a 911 special facility and lasts at least 30 minutes, then within 4 hours of having knowledge of the outage, the provider has to notify the FCC of the outage, through NORS [the Network Outage Reporting System]. The interconnected VoIP service provider also has to contact, as soon as possible, the appropriate personnel at the affected or potentially affected 911 special facility with information that could help mitigate any effects of the outage.
  • If the interconnected VoIP service provider experiences an outage on any of its own facilities or those it operates, leases or otherwise uses (not including 911 special facilities) and the outage lasts at least 30 minutes and has the potential to affect at least 900,000 user minutes, then within 24 hours of having knowledge of the outage, the provider has to notify the FCC of the outage, through NORS.
  • If the outage even potentially affects any “special offices and facilities” and the outage lasts at least 30 minutes, then within 24 hours of having knowledge of the outage, the interconnected VoIP service provider has to notify the FCC of the outage, through NORS."

The expanded rules now apply to facilities-based and non-facilities-based interconnected VoIP providers. The rules define a VoIP service as “interconnected” if it (1) enables realtime, two-way voice communications; (2) requires a broadband connection from the user’s location; (3) requires Internet protocol-compatible customer premises equipment (CPE); and (4) permits users generally to receive calls that originate on the public switched telephone network. "Special offices and facilities" include certain military, government, power plant and airport facilities. The rules apply even if the VoIP service is not “facilities based,” meaning that the VoIP provider neither owns nor has a possessory interest in the “channels of communication” used to provide the service. As a result, these FCC rules explicitly extend to so-called “over-the-top” VoIP providers.

On Friday, the FCC published a small entity compliance guide that discusses these new requirements. As network outage issues gain attention and VoIP services expand, interconnected VoIP providers should become familiar with these requirements. This guide provides a useful starting point in anticipation of the next severe weather event or possible service disruption. 

Will the FCC and the FAA Allow Expanded Use of Wireless Devices on Airplanes?

Here’s an important announcement for gadget-laden air travelers: Federal Communications Commission Chairman Julius Genachowski reportedly has asked the Federal Aviation Administration to “enable greater use of tablets, e-readers, and other portable devices during flights.”  As travelers know well, the FCC and the FAA place significant legal restrictions on passenger use of portable electronic devices during air travel, particularly during takeoff and landing. The Chairman’s letter may open the aircraft door to a policy that releases public pressure and enables increased wireless gadget use during flights.

The FCC and the FAA have limited in-flight use of portable electronic devices due to concerns about potential wireless interference to aircraft systems used for navigation and communication. FAA rules largely prohibit the use of such devices in flights, with limited exceptions. In August, the FAA announced plans to review these regulations, and the agency has requested public comment. Reportedly, the FAA does not intend to expand the rules to include voice calls. Chairman Genachowski issued a statement in support of the FAA’s review last August, saying that “[d]ramatic changes in technology and society make it both appropriate and timely for the FAA to review whether updates to their rules are needed.”

Current FCC rules prohibit passengers from using cellular phones and other wireless devices on airborne aircraft. Several years ago, the FCC launched a proceeding to consider lifting this restriction, but the agency terminated the proceeding in March 2007, citing “insufficient technical information” on potential interference.  The FCC also coordinates closely with the FAA on air-safety matters, such as for towers near airports that require registration with the FCC and for certain wireless devices operating near Terminal Doppler Weather Radar systems. Safety issues are among the FCC’s highest enforcement priorities, which makes the news of the Chairman’s letter, and his apparent willingness to revisit these issues, particularly noteworthy.

As our travels and our productivity depend on increasing gadget use, it is a sign of the times that the FCC and the FAA are taking a fresh look at their regulations. Loosening the rules would require tackling some challenging safety and technical issues. As a result, air passengers awaiting rule changes should anticipate potentially long delays because the timing and scope of any new rules remain, at present, largely up in the air.

TV Station Public Files Go Online for Inspection

Today is the effective date for the FCC's rules requiring TV broadcasters to post their local public inspection file online at a site maintained by the FCC. Late last week, the court denied broadcasters' request for a stay of this deadline. As a result, unless an exception applies, public file documents created on or after August 2, 2012 must be immediately posted online using the FCC's online system: https://stationaccess.fcc.gov/. Public file documents created prior to August 2, 2012 must be posted online by February 1, 2013.

Note that not every local public file document must be uploaded. Documents filed with the FCC by the station (such as applications, reports and the like) are to be imported by the FCC into the online database. Letters and emails from the public must be retained at the main studio. Also, the political file for stations not affiliated with the top four networks in the top 50 DMAs does not need to be uploaded until July 1, 2014. Contact Rebecca Rini for more information.


U.S. Supreme Court Sides with Broadcasters in Indecency Cases

Today, the Federal Communications Commission’s broadcast indecency policy received, at most, a glancing blow from the U.S. Supreme Court. 

In a sharply limited decision, the Court, by an 8-0 vote (with Justice Sotomayor not participating) and for the second time since 2009, avoided difficult First Amendment questions about the FCC’s authority to restrict coarse language and nudity on broadcast television. In 2009, the Court held that the FCC’s adoption of the so-called “fleeting expletives” policy for broadcast indecency was neither arbitrary nor capricious in violation of the Administrative Procedure Act. This time, in  Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al, the Court found that this policy, as applied to Fox and ABC, was impermissibly vague in violation of these broadcasters’ due process rights. The Court did not reach the First Amendment issues, choosing instead to vacate and remand the decisions of the 2nd Circuit that struck the FCC’s broadcast indecency policies on First Amendment grounds.

The Fox and ABC cases, which I’ve written about previously, involved challenges brought by broadcasters to the FCC’s broadcast indecency regulations. The broadcasters argued, among other things, that the Court should overturn its precedent in FCC v. Pacifica Foundation granting the FCC limited authority under the First Amendment to regulate broadcast indecency. While the Court today left the First Amendment issues open, Justice Kennedy, writing for the Court, found instead that the FCC “failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.” As a result, according to the Court, the FCC’s policy was impermissibly vague with respect to the broadcasts at issue here. In a brief concurring opinion, Justice Ginsburg wrote that “[t]ime, technological advances, and the Commission’s untenable rulings in the cases now before the court show why Pacifica bears reconsideration.”

Some initial observations:

1)      The FCC’s “Fleeting Expletive” Policy Still Exists. The decision explicitly does not address the constitutionality of the FCC’s current indecency policy “as expressed in the Golden Globes Order [issued March 18, 2004] and subsequent adjudications.” This Order adopted the “fleeting expletives” policy and apparently remains in force. The Court found that the FCC remains “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.”

2)      Timing of the Alleged Violation Is Critical.  The Fox and ABC broadcasts occurred prior to March 18, 2004. According to the Court, “the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation.” As a result, timing of a disputed broadcast is critical for purposes of determining the precedential effect of this decision on other cases.

3)      The decision is limited in scope on indecency. The Court treated “fleeting expletives and fleeting nudity” as part of the same FCC policy articulated in the 2004 Golden Globes Order. This determination enabled the Court to dispose of both cases via the same vagueness rationale, thus avoiding the First Amendment issues.

4)      The Court’s decision gives clues on how it could rule on the Janet Jackson case. The opinion does not address the FCC’s pending Petition for a Writ of Certiorari from the U.S. Supreme Court in connection with the Janet Jackson “wardrobe malfunction” case. The FCC is seeking review of a decision by the U.S. Court of Appeals for the 3rd Circuit, which found that the Commission acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, when it fined CBS stations for violating the indecency policy. The FCC requested that its petition “should be held for [the Fox case] and then disposed of as appropriate in light of the Court’s decision.” In this regard, like the broadcasts for ABC and Fox in today’s decision, the Janet Jackson broadcast occurred prior to the March 18, 2004 release of the 2004 Golden Globes Order. As a result, “fair notice” is again at issue, particularly now that the Court has explicitly determined that the Commission’s policy extends to “fleeting nudity.” Given that the nudity depicted in NYPD Blue lasted about seven seconds and the "wardrobe malfunction" was clocked at less than one second, the Commission should have concerns about the impact of today's ruling on the Janet Jackson case.

5)      Processing the backlog of indecency complaints is a priority.  Big practical issues remain. For example, the FCC has a massive backlog of indecency complaints filed against broadcasters.  Such complaints often slow processing of applications and delay the closing of transactions. For now, observers must watch and wait to see how the FCC decides to proceed.  Expect the FCC to comb through the backlog of complaints and dismiss those cases built on “fleeting expletives” with respect to broadcasts that occurred prior to March 18, 2004.  The FCC could take the opportunity to dismiss those complaints that it deems to not implicate the agency’s current indecency policy.

In light of these developments, don’t expect the floodgates to open for the broadcast of coarse language or brief nudity on your local station any time soon. There are significant questions about how the Commission will enforce its indecency policies going forward. The hardest questions on broadcast indecency and the First Amendment will continue to be debated, but there’s every reason to expect that one day the Court will be asked to address them yet again.  In the meantime, stay tuned.