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Is FCC 'running wild' with its big fines for 'fleeting expletives'?

A court has ruled that the FCC has to reconsider its fines for unplanned expletives blurted out on live broadcasts. The ruling comes as media experts debate whether the FCC should have a role in the Internet world.

By Staff writer / July 14, 2010

Los Angeles

Tuesday's ruling by the New York-based Second Circuit Court of Appeals, which sends the FCC back to the drawing board for its policy on “fleeting expletives” on broadcast television, has unexpectedly raised the hopes of First Amendment scholars and legal experts who would like to see less government regulation of the media.

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At the same time, the surprise decision to ask the FCC to refine its guidelines for unacceptable over-the-air moments has rallied watchdog groups concerned about the coarsening of civic life.

“The FCC has been running wild with these huge fines,” argues Fordham University’s Paul Levinson, who says “any fines of any broadcaster communication is an obvious blatant violation of the First Amendment.” Pointing to recent discussions in Congress to expand FCC authority to both cable and the Internet, the author of “New New Media” says that this breather in the lockstep march toward increased regulatory intrusion provides an opening for a broader debate.

“What champions of the First Amendment who have been in despair over decades now hope is that this is the beginning of the turning of the tide towards more respect for the First Amendment,” he says adding, “a week ago, before this ruling, I would have called that a pipe dream, but now it may not be.”

While Mr. Levinson suggests that the proper role of the FCC should be limited to technical oversight of broadcasting signals, with no involvement in content, others such as Southwestern Law School professor Butler Shaffer take the argument one step further. [Editor's note: The original misstated the name of Southwestern Law School.]

“Get rid of it,” he says, referring to the FCC. In this new media environment of virtually bottomless media outlets, he says, the argument that a government agency needs to be in the middle, directing traffic for scarce resources, is no longer valid. “How can you possibly argue that this is a limited resource when anyone who wants to can go on the Internet and broadcast?” he asks.

As for the argument that licenses granted to broadcasters require them to act in the public interest because the airwaves belong to the public, he says the terms of that agreement are maddeningly vague. “What do those terms even mean?” asks Mr. Shaffer, adding that what is really going on is a struggle at the heart of our society over who shall control the future.