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CONTACT: Amy Smorodin
August 8, 2008
(202) 289-8928
Supreme Court Should Uphold Reversal of FCC
Indecency Regulation

PFF and CDT File Amicus Brief in FCC v. Fox Television Case

WASHINGTON D.C. - The Supreme Court should affirm the Second Circuit Court decision that the Federal Communications Commission (FCC) violated the Administrative Procedure's Act (APA) when it began sanctioning "fleeting expletives," state PFF Senior Fellow Adam Thierer and scholars from the Center for Democracy & Technology (CDT) in a joint amicus brief filed today with the U.S. Supreme Court. The brief, filed in the upcoming case of the FCC v. Fox Television Stations, identifies several reasons why the decision should be affirmed and questions the Commission's constitutional authority to regulate speech in broadcast media.

The brief, co-authored by PFF's Thierer and John Morris and Sophia Cope of CDT, contends that the "pervasiveness rationale," which is the basis of the FCC's authority to regulate broadcast programming, is being challenged by technological convergence, the proliferation of new media platforms, and the widespread availability of parental control technologies. Video content available over broadcast television is available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. "With broadcast television being just one of the myriad of ways that people can access lawful content (including indecent content), it no longer makes sense from a constitutional or policy perspective to give broadcast speech less First Amendment protection," the PFF and CDT scholars argue.

Parental controls, such as the V-Chip and set-top box controls, allow parents to block content they deem offensive or inappropriate. Better yet, the rise of VCRs, DVD recorders, video on demand, and digital video recorders means that parents can tailor media consumption to their specific needs and values. Those tools are widely available and provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content censorship on "pervasiveness" grounds.

The brief also states that complaint data the FCC cites as justification for the expansion of indecency enforcement, has been inflated through accounting changes. These changes in the way the complaints are counted, which were only instituted for indecency complaints, are in violation of the APA. These complaints, mostly generated by a single advocacy group, cannot be a substitute for an analysis of "community standards" and essentially represent a "heckler's veto" that violates the First Amendment rights of other viewers.

The brief also cites the Commission's inconsistent analysis of what it deems "indecent" as a violation of both the First Amendment rights of broadcasters and the APA. The inconsistency in what the FCC finds as indecent has a chilling effect on the free expression of content providers and provides inadequate guidance to broadcasters, which is required under FCC statutes.

The brief is available on the PFF and CDT websites. The authors of the brief are available for comment and can be reached by contacting Brock Meeks at or 202-637-9800 at CDT or PFF's Amy Smorodin at or 202-289-8928.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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