A chill descended on the sleepy college town of St. Joseph, Minn., one evening in March 2004. The chill came not from the lingering Minnesota winter, but from Washington, D.C., nearly 1,000 miles to the east.

It crept across the campus of the College of St. Benedict, and seeped into an auditorium in Alumnae Hall. On stage, writer Bill Holm was reading poetry for a rapt audience at the Catholic women's college. The chill reached Holm while he was reciting the poem “Stella by Starlight” by Philip Bryant. Where the poet wrote, “To quote any passage of Shakespeare / Every other line is fucking this and fucking that,” Holm, instead, said, “… Dirty word this and dirty word that.”

Holm didn't change the poem because he was afraid of offending his audience, but because the Minnesota Public Radio (MPR) was broadcasting his words on its network.

“We told him we were concerned in the context of the FCC's Bono ruling,” says Mitzi Gramling, associate general counsel at MPR in St. Paul.

Gramling is referring to the FCC's decision involving the utterance of the F-word by U2 lead singer Bono during the 2003 broadcast of the Golden Globe Awards. In Bono the FCC reversed two decades of regulation in deeming a fleeting instance of the F-word profane and indecent, and therefore subject to regulation under the

commission's broadcast-decency standards.

“MPR isn't exactly on the cutting edge of broadcasting indecency, but after Bono we don't know what's OK and what isn't,” Gramling says. “It has a huge chilling effect because we don't know what the rules are anymore.”

In the post-Bono world, radio and TV broadcasters increasingly are second guessing the propriety of the content they put on the air–not according to any consideration of context or meaning, or even a community-standards test–but instead according to the shifting political winds in Washington, D.C.

“This is a nightmare,” says Kurt Wimmer, a Covington & Burling partner in Washington, D.C., who is representing a number of Fox TV affiliates in their challenge to FCC indecency rulings. “What we have is overzealous regulation on the part of the FCC conflicting with free-speech rights under the First Amendment. We shouldn't have the government regulating speech in this way, and these rulings have shown a spotlight on the problem.”

That spotlight ultimately might light a path to the Supreme Court, which established the basis for the FCC's broadcast decency standards in the landmark 1978 case FCC v. Pacifica Foundation. Broadcasters argue that since that decision, the entertainment media changed dramatically, with the advent of parental controls, content ratings and cable and satellite delivery of programming. Moreover, community standards and sensitivities have evolved, even as the FCC has taken a harder-line stance on indecency regulation. This combination of trends suggests Pacifica might have outlived its merit.

“It's been a long time since the Supreme Court has reviewed the constitutionality of regulating broadcast content,” Wimmer says. “The way the commission has enforced decency standards and the way the issue has been politicized raises the importance of a constitutional review.”

Federal Mouthwash

The FCC technically hasn't changed the rules. Since 1978–and theoretically since the 1920s–it has claimed the same authority to forbid the broadcast of “indecent” material during daytime hours (Title 18, USC, Section 1464). The Supreme Court upheld this authority in Pacifica, a case involving George Carlin's “Filthy Words” monologue.

However, the FCC has changed the way it defines “indecent,” moving toward a stricter position on the images and sounds it considers indecent. The commission also changed the way it calculates fines for indecent broadcasts. Because broadcasters have the capability to censor indecent material using a transmission delay, each station now might be presumed to be willfully flouting the regulations by not implementing such a delay for every broadcast, whether “live” or otherwise. Starting with Bono, the commission reviewed dozens of previous rulings from its enforcement bureau and reversed many using the same strict-liability standard used in that case.

“The commission has focused on increasing the substantiality of its enforcement,” said FCC Chairman Michael Powell, in an interview with Sam Donaldson during a National Association of Broadcasters (NAB) convention in April 2004. “It has pursued higher fines for separate utterances, in response to a perception that, as administered before, it was not having the effect Congress intended.”

To underscore the point, in 2004 the FCC assessed the heftiest fines in history against numerous broadcasters, including Viacom, Fox and Infinity. It also issued a stern warning for broadcasters found to be repeat violators: In the future, it will consider revoking their licenses.

Broadcasters are fighting this suddenly zealous enforcement, challenging the FCC's recent decisions and declaring war on the commission's very authority to regulate content. The biggest volley in this regulatory war so far has come in the form of an Academy Award-winning war film. After spending the summer observing the FCC's series of anti-indecency rulings and reversals, ABC aired “Saving Private Ryan” on Veterans Day 2004, unedited per producer Steven Spielberg's contract with the network.

ABC set a TV?? 1/2 14 rating on the broadcast, and placed viewer warnings at the beginning of each segment. Further, the network warned affiliates in advance, giving them the option to air it or not, and offering to indemnify them against any FCC fines. This made the airing decision a local one, and indeed some stations didn't broadcast the movie. Most, however, went ahead with it.

After the broadcast, decency advocates–including the American Family Association–complained to the FCC about the film, citing passages with multiple expletives as evidence of its indecency.

Now, broadcasters are anxious to see how the FCC will rule on “Saving Private Ryan,” as well as numerous other complaints before the commission.

“Every week that goes by, the FCC digs its hole deeper,” says a broadcaster who spoke on condition of anonymity. “They know that coming down on 'Saving Private Ryan' will look really bad, but not censuring it means they have to distinguish it from Bono. Whatever sense they try to make of it will just dig the hole deeper still.”

If the FCC finds “Saving Private Ryan” neither profane nor indecent, it will appear to be distinguishing content based on artistic-merit–not a politically tenable position for the FCC to take on matters of constitutionally protected free speech.

“They have gone down an unpredictable and dangerous road,” the broadcaster says. “You can rest assured we are looking actively at the best way to get to court. Hopefully the courts haven't completely forgotten we have something called the First Amendment.”

George Carlin's Revenge

A court challenge to the FCC's authority might be waged on several fronts. Most notably, broadcasters would seek clarification of the vague and unpredictable nature of the FCC's rules. But it also would raise constitutional questions about the FCC's authority under Pacifica itself.

First, broadcasters might challenge the legitimacy of the FCC's indecency standards, both in terms of their vague nature and in the context of modern community standards. The latter question might gain more sympathy on the court than the vagueness issue.

“Where the line is drawn at a particular time is a matter of some uncertainty, but as we say in the bar, 'tough shit,'” says Dan Polsby, acting dean and professor at George Mason University School of Law. “However, it would not be frivolous to argue that along with the change in behavior by broadcasters there has been a change in the national community's standards about what is acceptable. Mores plainly do change, and they have changed in this country.”

Second, standards aren't the same in every community across the country, and this raises questions about the FCC's practice of imposing a national standard on all broadcasters. Free-speech advocates argue such an approach impinges on First Amendment rights.

“It makes very little sense,” says Marvin Johnson, legislative counsel with the ACLU. “Although indecency is protected under the First Amendment, it is not well defined and therefore is less protected than obscenity.”

Content that is “obscene,” as opposed to “indecent,” is defined in large part by whether the average person in the local community finds it “appeals to the prurient interest” (Miller v. California, 1973). In court, broadcasters might argue that while the FCC has the authority to restrict broadcasts of indecent content, its single national standard is unfairly broad–withholding even the due process Miller provides for obscene speech, which isn't constitutionally protected.

Third, a court challenge likely would argue the tenets of the Pacifica decision are outdated and therefore federal authority to regulate broadcast content is questionable. Pacifica was predicated largely on the idea that broadcast airwaves are an “uninvited guest” in the American home. The High Court questioned the veracity of this concept in 1978, and such an argument still likely would encounter skepticism in the courts today.

In Pacifica, the court acknowledged the government's role in regulating the “uninvited guest,” but it expressed concern that it must employ the least-restrictive means to achieve its ends. Later in ACLU v. Reno, the court ruled the “burden on adult speech is unacceptable if less-restrictive alternatives would be at least as effective.”

Although Reno applied to Internet, not broadcast, content, the principles are the same, and–given the advent of the V-chip and broadcast ratings systems that allow parents to control children's access to TV programming–an argument like the one made in Reno could prove a significant factor for broadcasters challenging the FCC's strict enforcement actions.

“The entire debate is vestigial and outdated,” says Erik Huey, of counsel at Venable in Washington, D.C., who represents the Screen Actors Guild and the American Federation of Television & Radio Artists. “It hearkens back to a time when people tuned in using rabbit ears on their TV sets. The issues in the Pacifica case may no longer be valid.”

For their part, decency advocates argue parental controls are ineffective.

“It's an easy blow-off for the entire industry to say parents should be in charge of their own kids,” says Lara Mahaney, director of corporate and entertainment affairs for the Parents Television Council. “Parents are the first line of defense, and they are doing the best they can do. But the court will recognize quickly that the people who are producing content are rating it themselves, and that is not a viable solution.”

Specifically, she says broadcasters aren't taking responsibility for rating broadcast content correctly, and therefore parental controls don't protect children from indecent content.

Regardless of how the court judges the role of parental controls, broadcasters might argue that broad changes in the media business invalidate the assumptions the court used in Pacifica in 1978, and indeed in 1969 when it established the public-interest doctrine upon which federal authority over radio spectrum is based (Red Lion Broadcasting Co. v. FCC). Namely, today only about 15 percent of American households receive TV signals via an antenna; the rest watch television using cable and satellite systems, which aren't subject to the FCC's decency regulation. On the radio side, while satellite programming is still relatively nascent, it is growing quickly.

Broadcasters might argue, given these changes in the media landscape, the “public-interest” and “uninvited-guest” rationales for regulating broadcast content are no longer valid. Even the FCC chairman acknowledges the weakness of the Red Lion rationale for regulating broadcasters but not cable programmers.

“I don't believe the First Amendment should change channels when [the TV] goes from seven to 107,” Powell said during the NAB convention interview. “I don't believe something on a cable channel is a different animal than something [being] broadcast. Until the Supreme Court changes it, you are going to have this disconnect.”

Careful What You Wish For

With fundamental questions being raised about the government's role in regulating television and radio, advocates on both sides are becoming increasingly uncomfortable with the debate, because they cannot predict the end game. In addition to changes in the market and in media technology, other trends are in play. Among these, consolidation in media ownership, an explosion of competition in cable and satellite programming, and spectrum constraints affecting wireless technologies in particular cast new light on the debate. How the court views that light might have important ramifications for the media.

The court might conclude, for example, the “uninvited guest” and “public interest” reasoning behind Red Lion and Pacifica are obsolete and thus broadcast and cable programming merit the same regulatory treatment. A critical question, then, would be whether the court would limit the government's role as it did in Reno or give it Pacifica-style free rein.

Alternatively, the court might determine that broadcast spectrum has become so valuable in the wireless age that radio and TV broadcasters should be subject to an even higher public-interest standard than has been applied in recent decades. That could open the door to a dramatic restructuring of the industry.

“One solution would be to tell broadcasters to get their ass off all that spectrum,” Polsby says. “It's not theirs anyway. If they have the irresistible urge to bring us Dan Rather, let them rent space on a cable or satellite system like everybody else. Why clog the spectrum with 70-year-old TV technology when we could be using it for more competition in broadband or cellular or whatever?”

Either way, the court cannot settle the fundamental debate over indecency in the media, but it seems likely to redraw the battle lines. Where those lines get drawn largely will determine whether media companies continue operating within a regulatory framework designed three decades ago, or whether a new approach is needed for a 21st century industry.

A chill descended on the sleepy college town of St. Joseph, Minn., one evening in March 2004. The chill came not from the lingering Minnesota winter, but from Washington, D.C., nearly 1,000 miles to the east.

It crept across the campus of the College of St. Benedict, and seeped into an auditorium in Alumnae Hall. On stage, writer Bill Holm was reading poetry for a rapt audience at the Catholic women's college. The chill reached Holm while he was reciting the poem “Stella by Starlight” by Philip Bryant. Where the poet wrote, “To quote any passage of Shakespeare / Every other line is fucking this and fucking that,” Holm, instead, said, “… Dirty word this and dirty word that.”

Holm didn't change the poem because he was afraid of offending his audience, but because the Minnesota Public Radio (MPR) was broadcasting his words on its network.

“We told him we were concerned in the context of the FCC's Bono ruling,” says Mitzi Gramling, associate general counsel at MPR in St. Paul.

Gramling is referring to the FCC's decision involving the utterance of the F-word by U2 lead singer Bono during the 2003 broadcast of the Golden Globe Awards. In Bono the FCC reversed two decades of regulation in deeming a fleeting instance of the F-word profane and indecent, and therefore subject to regulation under the

commission's broadcast-decency standards.

“MPR isn't exactly on the cutting edge of broadcasting indecency, but after Bono we don't know what's OK and what isn't,” Gramling says. “It has a huge chilling effect because we don't know what the rules are anymore.”

In the post-Bono world, radio and TV broadcasters increasingly are second guessing the propriety of the content they put on the air–not according to any consideration of context or meaning, or even a community-standards test–but instead according to the shifting political winds in Washington, D.C.

“This is a nightmare,” says Kurt Wimmer, a Covington & Burling partner in Washington, D.C., who is representing a number of Fox TV affiliates in their challenge to FCC indecency rulings. “What we have is overzealous regulation on the part of the FCC conflicting with free-speech rights under the First Amendment. We shouldn't have the government regulating speech in this way, and these rulings have shown a spotlight on the problem.”

That spotlight ultimately might light a path to the Supreme Court, which established the basis for the FCC's broadcast decency standards in the landmark 1978 case FCC v. Pacifica Foundation. Broadcasters argue that since that decision, the entertainment media changed dramatically, with the advent of parental controls, content ratings and cable and satellite delivery of programming. Moreover, community standards and sensitivities have evolved, even as the FCC has taken a harder-line stance on indecency regulation. This combination of trends suggests Pacifica might have outlived its merit.

“It's been a long time since the Supreme Court has reviewed the constitutionality of regulating broadcast content,” Wimmer says. “The way the commission has enforced decency standards and the way the issue has been politicized raises the importance of a constitutional review.”

Federal Mouthwash

The FCC technically hasn't changed the rules. Since 1978–and theoretically since the 1920s–it has claimed the same authority to forbid the broadcast of “indecent” material during daytime hours (Title 18, USC, Section 1464). The Supreme Court upheld this authority in Pacifica, a case involving George Carlin's “Filthy Words” monologue.

However, the FCC has changed the way it defines “indecent,” moving toward a stricter position on the images and sounds it considers indecent. The commission also changed the way it calculates fines for indecent broadcasts. Because broadcasters have the capability to censor indecent material using a transmission delay, each station now might be presumed to be willfully flouting the regulations by not implementing such a delay for every broadcast, whether “live” or otherwise. Starting with Bono, the commission reviewed dozens of previous rulings from its enforcement bureau and reversed many using the same strict-liability standard used in that case.

“The commission has focused on increasing the substantiality of its enforcement,” said FCC Chairman Michael Powell, in an interview with Sam Donaldson during a National Association of Broadcasters (NAB) convention in April 2004. “It has pursued higher fines for separate utterances, in response to a perception that, as administered before, it was not having the effect Congress intended.”

To underscore the point, in 2004 the FCC assessed the heftiest fines in history against numerous broadcasters, including Viacom, Fox and Infinity. It also issued a stern warning for broadcasters found to be repeat violators: In the future, it will consider revoking their licenses.

Broadcasters are fighting this suddenly zealous enforcement, challenging the FCC's recent decisions and declaring war on the commission's very authority to regulate content. The biggest volley in this regulatory war so far has come in the form of an Academy Award-winning war film. After spending the summer observing the FCC's series of anti-indecency rulings and reversals, ABC aired “Saving Private Ryan” on Veterans Day 2004, unedited per producer Steven Spielberg's contract with the network.

ABC set a TV?? 1/2 14 rating on the broadcast, and placed viewer warnings at the beginning of each segment. Further, the network warned affiliates in advance, giving them the option to air it or not, and offering to indemnify them against any FCC fines. This made the airing decision a local one, and indeed some stations didn't broadcast the movie. Most, however, went ahead with it.

After the broadcast, decency advocates–including the American Family Association–complained to the FCC about the film, citing passages with multiple expletives as evidence of its indecency.

Now, broadcasters are anxious to see how the FCC will rule on “Saving Private Ryan,” as well as numerous other complaints before the commission.

“Every week that goes by, the FCC digs its hole deeper,” says a broadcaster who spoke on condition of anonymity. “They know that coming down on 'Saving Private Ryan' will look really bad, but not censuring it means they have to distinguish it from Bono. Whatever sense they try to make of it will just dig the hole deeper still.”

If the FCC finds “Saving Private Ryan” neither profane nor indecent, it will appear to be distinguishing content based on artistic-merit–not a politically tenable position for the FCC to take on matters of constitutionally protected free speech.

“They have gone down an unpredictable and dangerous road,” the broadcaster says. “You can rest assured we are looking actively at the best way to get to court. Hopefully the courts haven't completely forgotten we have something called the First Amendment.”

George Carlin's Revenge

A court challenge to the FCC's authority might be waged on several fronts. Most notably, broadcasters would seek clarification of the vague and unpredictable nature of the FCC's rules. But it also would raise constitutional questions about the FCC's authority under Pacifica itself.

First, broadcasters might challenge the legitimacy of the FCC's indecency standards, both in terms of their vague nature and in the context of modern community standards. The latter question might gain more sympathy on the court than the vagueness issue.

“Where the line is drawn at a particular time is a matter of some uncertainty, but as we say in the bar, 'tough shit,'” says Dan Polsby, acting dean and professor at George Mason University School of Law. “However, it would not be frivolous to argue that along with the change in behavior by broadcasters there has been a change in the national community's standards about what is acceptable. Mores plainly do change, and they have changed in this country.”

Second, standards aren't the same in every community across the country, and this raises questions about the FCC's practice of imposing a national standard on all broadcasters. Free-speech advocates argue such an approach impinges on First Amendment rights.

“It makes very little sense,” says Marvin Johnson, legislative counsel with the ACLU. “Although indecency is protected under the First Amendment, it is not well defined and therefore is less protected than obscenity.”

Content that is “obscene,” as opposed to “indecent,” is defined in large part by whether the average person in the local community finds it “appeals to the prurient interest” (Miller v. California, 1973). In court, broadcasters might argue that while the FCC has the authority to restrict broadcasts of indecent content, its single national standard is unfairly broad–withholding even the due process Miller provides for obscene speech, which isn't constitutionally protected.

Third, a court challenge likely would argue the tenets of the Pacifica decision are outdated and therefore federal authority to regulate broadcast content is questionable. Pacifica was predicated largely on the idea that broadcast airwaves are an “uninvited guest” in the American home. The High Court questioned the veracity of this concept in 1978, and such an argument still likely would encounter skepticism in the courts today.

In Pacifica, the court acknowledged the government's role in regulating the “uninvited guest,” but it expressed concern that it must employ the least-restrictive means to achieve its ends. Later in ACLU v. Reno, the court ruled the “burden on adult speech is unacceptable if less-restrictive alternatives would be at least as effective.”

Although Reno applied to Internet, not broadcast, content, the principles are the same, and–given the advent of the V-chip and broadcast ratings systems that allow parents to control children's access to TV programming–an argument like the one made in Reno could prove a significant factor for broadcasters challenging the FCC's strict enforcement actions.

“The entire debate is vestigial and outdated,” says Erik Huey, of counsel at Venable in Washington, D.C., who represents the Screen Actors Guild and the American Federation of Television & Radio Artists. “It hearkens back to a time when people tuned in using rabbit ears on their TV sets. The issues in the Pacifica case may no longer be valid.”

For their part, decency advocates argue parental controls are ineffective.

“It's an easy blow-off for the entire industry to say parents should be in charge of their own kids,” says Lara Mahaney, director of corporate and entertainment affairs for the Parents Television Council. “Parents are the first line of defense, and they are doing the best they can do. But the court will recognize quickly that the people who are producing content are rating it themselves, and that is not a viable solution.”

Specifically, she says broadcasters aren't taking responsibility for rating broadcast content correctly, and therefore parental controls don't protect children from indecent content.

Regardless of how the court judges the role of parental controls, broadcasters might argue that broad changes in the media business invalidate the assumptions the court used in Pacifica in 1978, and indeed in 1969 when it established the public-interest doctrine upon which federal authority over radio spectrum is based (Red Lion Broadcasting Co. v. FCC). Namely, today only about 15 percent of American households receive TV signals via an antenna; the rest watch television using cable and satellite systems, which aren't subject to the FCC's decency regulation. On the radio side, while satellite programming is still relatively nascent, it is growing quickly.

Broadcasters might argue, given these changes in the media landscape, the “public-interest” and “uninvited-guest” rationales for regulating broadcast content are no longer valid. Even the FCC chairman acknowledges the weakness of the Red Lion rationale for regulating broadcasters but not cable programmers.

“I don't believe the First Amendment should change channels when [the TV] goes from seven to 107,” Powell said during the NAB convention interview. “I don't believe something on a cable channel is a different animal than something [being] broadcast. Until the Supreme Court changes it, you are going to have this disconnect.”

Careful What You Wish For

With fundamental questions being raised about the government's role in regulating television and radio, advocates on both sides are becoming increasingly uncomfortable with the debate, because they cannot predict the end game. In addition to changes in the market and in media technology, other trends are in play. Among these, consolidation in media ownership, an explosion of competition in cable and satellite programming, and spectrum constraints affecting wireless technologies in particular cast new light on the debate. How the court views that light might have important ramifications for the media.

The court might conclude, for example, the “uninvited guest” and “public interest” reasoning behind Red Lion and Pacifica are obsolete and thus broadcast and cable programming merit the same regulatory treatment. A critical question, then, would be whether the court would limit the government's role as it did in Reno or give it Pacifica-style free rein.

Alternatively, the court might determine that broadcast spectrum has become so valuable in the wireless age that radio and TV broadcasters should be subject to an even higher public-interest standard than has been applied in recent decades. That could open the door to a dramatic restructuring of the industry.

“One solution would be to tell broadcasters to get their ass off all that spectrum,” Polsby says. “It's not theirs anyway. If they have the irresistible urge to bring us Dan Rather, let them rent space on a cable or satellite system like everybody else. Why clog the spectrum with 70-year-old TV technology when we could be using it for more competition in broadband or cellular or whatever?”

Either way, the court cannot settle the fundamental debate over indecency in the media, but it seems likely to redraw the battle lines. Where those lines get drawn largely will determine whether media companies continue operating within a regulatory framework designed three decades ago, or whether a new approach is needed for a 21st century industry.