The stations have fought back, arguing that the traditional broadcast companies should no longer be subject to special indecency regulations. They say the growth and popularity of other media – such as cable television and the Internet – have diminished the need for government controls on broadcast television content.
Government regulations were based on the fact that radio and television broadcasts were ubiquitous and readily accessible to children. In an effort to shield children from questionable content, the FCC established rules that certain offensive language and sexual content would not be broadcast from 6 a.m. to 10 p.m.
Broadcasters were free to schedule more adult-oriented programming after 10 p.m.
The government based its ability to regulate broadcast content on the fact that it was allowing private companies access to a limited band of government-controlled frequencies. The indecency standards were designed to promote the public good.
Now with the increasing popularity of cable television and Internet programming, the broadcast companies are questioning why they must still be regulated.
Cable and Internet companies do not face the same FCC regulations because they transmit their programming via privately built and owned networks, rather than via a government-granted monopoly over a segment of public airwaves.
“Regulation of indecent material has been a defining feature of broadcasting since the medium’s very inception, and it is one of the enforceable public obligations that broadcasters accept in return for their free use of the public’s airwaves,” writes Solicitor General Donald Verrilli in his brief to the court.
“Generations of parents have relied on indecency regulations to safeguard broadcast television as a relatively safe medium for their children,” he wrote. “The rise of alternative communications media has strengthened, not undermined, that reliance interest.”
Lawyers for television broadcasters say their companies are being treated like second-class citizens by the government.
“Only broadcasting is subject to content-based censorship by the federal government,” wrote Washington lawyer Carter Phillips in his brief on behalf of Fox Television.