While most people were busy swearing at their TV sets as election results rolled in on November 4, the United States Supreme Court was hearing oral arguments in a case challenging whether TV can swear back. The case, Federal Communications Commission v. Fox Television Stations, raises the question of whether the F.C.C., which regulates broadcast media including television and radio, can legally change the criteria for how it determines whether language is “indecent” without providing a reason for the change.
The Supreme Court case came about after a few awards shows were televised live with unscripted slips of the potty mouth. This included a Golden Globes broadcast in which singer Bono said, while accepting his award, that it was “really, really f—ing brilliant.” The F.C.C. issued warnings that it would now consider any utterances of the f- and s- words indecent and subject to punitive action.
Prior to its change in policy, it had overlooked cases of “fleeting expletives” where the offending language was not repeated. Several networks, including Fox Television, filed suit against the F.C.C., claiming that its change in policy was “arbitrary and capricious” and that the commission gave no reasonable reason for its change.
The F.C.C. claims it has the right to interpret and enforce a federal law prohibiting broadcasting obscene language.
KUGS, Western Washington University's student-run radio station, is under the jurisdiction of the F.C.C.'s oversight, which has the power to levy fines on any over-the-air radio station that fails to observe indecency standards. The maximum fine of $325,000 per obscenity is more than three times the annual operating budget for KUGS, according to Sam Parker, the station's news and public affairs director.
KUGS allows “no obscenity, no indecency,” Parker said.
According to Parker and KUGS program director Chris Mak, the station has a firm commitment to obscenity-free broadcasts because the station represents the University and the Associated Students. All new recordings are screened before going into the collection. The station is funded by the AS and its broadcasting license is held by the University's Board of Trustees.
“We are abiding by the University, AS and KUGS' mission statements,” Mak said.
Rosa Jimenez is a Western student and a parent of three children. She compared fleeting expletives on broadcast to a trip to the grocery store where one might hear someone let a swearword slip.
“It's the responsibility of the parent to talk to their children about repeating what they may hear in public or on TV, whether it's live or pre-recorded,” Jimenez said.
Parker noted that whatever decision the Supreme Court hands down at the end of the day will not affect how KUGS goes about its business.
“What's a more alarming trend, for me, is the
conglomeration and commodification of mainstream radio with corporate interests, and what we've ended up with is radio which is supposed to be a public service that does not live up to the people's interests,” Parker said.
With regard to KUGS, Parker added, “We still provide a really great programming model, and regardless of the Supreme Court Decision, that's not going to change.”
The law that regulates obscenity in broadcasting is 18 U.S.C. §1464, which states:
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.
The Federal Communications Committee argues that it has a right to change how it interprets and enforces that law under the Administrative Procedure Act. Judges for the 2nd U.S. Circuit Court of Appeals ruled in a 2-1 decision that the commission's policy shift was “arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” The Supreme Court began discussion in Nov. A decision is still pending.