For any American who has ever watched television on one of the traditional broadcast networks, seven particular dirty words have always been conspicuously absent. Confusingly, on cable, these seven words may all occur in quick succession on one show. When one of them does make it to air on a broadcast network, it often becomes the source of a fine from the Federal Communications Commission and years of litigation. A recent case resulted in a huge victory for broadcasters. In the 2012 holding of FCC v. Fox Television Stations, Inc., the Supreme Court required the FCC to eliminate its existing policy on how it regulated indecent content on the broadcast networks. The Court found the policy unconstitutionally vague because it did not put broadcasters on notice about what types of content were prohibited on television. The FCC has yet to issue a new regulation; this holding leaves the FCC with a gaping hole, but also an enormous opportunity.
An important reason the FCC has yet to act may be that the existing regulatory framework for indecent content on television has grown obsolete. The federal government’s ability to regulate the broadcast airwaves is based on the idea that the airwaves are a scarce resource. However, after the advent of cable and the digital transition, many see opportunities to access the airwaves as plentiful, not scarce. Part of the Court’s holding in Fox was that the government does still have the power to regulate the broadcast networks. However, it would be wise for the FCC to think about television in a more modern context when making its new regulations.
The American government need only look across the pond for guidance on how to structure a modern regulatory scheme for indecent content on television. In the 2003 Communications Act, the United Kingdom empowered its Office of Communications, the U.K. equivalent of the FCC, to create a strong and coherent Broadcasting Code to take U.K. television regulation into the modern era. The code it promulgated is a happy medium that can satisfy all interested parties, which would be an excellent model to emulate in the United States. The U.K. Broadcasting Code regulates all networks equally and has flexible content regulations, but sets important limits about content during the hours when children are most likely to be watching.
Creating a regulatory model like this for the United States would be a vast improvement over its current model with its different rules for different types of broadcasting. A new U.S. model that mimics the U.K. Broadcasting Code would be much clearer than the old FCC policy and would much more likely survive a potential vagueness analysis by the Court in the future. The suggestions outlined in this Note advocate a cohesive scheme that will end the bifurcated regulatory system that has persisted despite a changing industry and culture.