Fox Television Stations and ABC are asking the Supreme Court to affirm the lower court’s decision and declare that the FCC’s regulatory regime is unconstitutional.
At issue is the extent to which broadcast television viewers will encounter coarse language and brief nudity on their television screens during prime time programming.
The FCC has sought to crack down on what it viewed as an increasingly permissive broadcast environment that failed to adequately self-police the use of four-letter words and risqué images.
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.