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Are tough FCC indecency laws obsolete? Supreme Court hears free-speech case.

Fox and ABC say tougher FCC regulations of broadcasters regarding expletives and partial nudity are discriminatory in an age when cable and Internet programs are not similarly regulated.

By Staff writer / January 10, 2012

Paris Hilton (l.) is partially responsible for the FCC's tough rules on expletives.

Shea Walsh/AP

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Washington

The US Supreme Court is set to hear oral argument on Tuesday in a case that examines whether tougher indecency standards enforced against broadcast television companies in recent years violate free speech protections of the First Amendment.

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The Obama administration is supporting the stricter standards and urging the justices to reverse a lower court ruling that declared the Federal Communications Commission regulations unconstitutional.

The tougher regulations subjected broadcast companies to substantial fines for the use of an isolated expletive or partial nudity during prime time programming.

For decades, the FCC had embraced a more lax enforcement posture, allowing the occasional four-letter “blooper” without subjecting broadcast companies to enforcement actions.

That changed in 2004, when the FCC shifted course and beefed up its policy on foul language and nudity on broadcast television.

Broadcasters are objecting to the policy change, claiming it is so ill-defined that it denies companies fair notice of what is banned. They also argue that such government censorship violates the free speech protections of the First Amendment.

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.

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