A couple of media reform groups have sent the Second Circuit Court of Appeals a brief urging it to kick the legs out from under the Federal Communications Commission's shiny new rules against "fleeting" expletives—singular bleep words said on the fly. That crackdown has already resulted in "a palpable chill on free speech," complain the Center for Creative Voices and the Future of Music Coalition. "Without coherent and consistent guidelines as to what constitutes indecent programming, creators are literally at a loss for words." The filing was written up by the Media Access Project.

But the brief also grapples with a very sticky wicket that the Second Circuit may or may not take up: whether there's a scarcity of broadcast spectrum any more, and whether the legal precedent empowered by that assumption—a case called Red Lion—still authorizes the FCC to regulate the airwaves.

An extreme approach

To most media advocates, the FCC's indecency rampage has been a disaster. It's almost impossible to predict what the FCC will decide is or isn't indecent, they charge, since the agency keeps changing its enforcement standards. So broadcasters and content providers have to guess what they think the Commission won't like—effectively censoring themselves. The big media companies keep a huge stable of First Amendment lawyers handy to respond to whatever crackdown comes next, but smaller broadcasters have no recourse against the potentially huge fines the FCC can now mete out.

As we've reported, the big networks tried to throw out Fox Television's spanking for various fleeting curse words that aired during the Billboard Music Awards, and they won the support of the Second Circuit in New York. But the Supreme Court, by the narrowest vote (5-4), ruled that the agency's sudden decision to go medieval on broadcasters in the case of a single f-bomb or s-word didn't violate the Administrative Procedures Act's ban against "arbitrary and capricious" decision making. So the case is now back on Second, where the court will review its decision based on constitutional rather than technical issues like the APA.

Central to the new brief is that the FCC's recent indecency decisions offer no consistent guidance to broadcasters. "How is a writer or musician to reconcile the FCC’s acceptance of repeated use of strong expletives in Saving Private Ryan with the FCC’s disapproval of the culturally contextual use of milder expletives in a documentary on the Blues music?" it asks.

And the Commission has gone way past the authority granted to it in the Supreme Court's 1978 Pacifica vs. FCC ruling, the groups argue. That case only approved the agency's sanctioning of a single radio station for broadcasting George Carlin's famous "Seven Dirty Words" monologue. And one justice who backed the decision noted that the FCC didn't issue any new regulations in the case, and so "may be expected to proceed cautiously, as it has in the past."

It hasn't turned out that way, the groups charge. The agency has taken an "extreme" approach to Pacifica "which will have a profound impact on artists seeking to express themselves as creatively as possible."

Rights of the viewers and listeners

But for these interested parties, there's an interesting problem in trying to limit the FCC's indecency authority. The briefs of various TV networks to the Supreme Court didn't just ask the court to throw out the FCC's sanctions because the agency did a whack job on Pacifica. They also argued that the court should reconsider its Red Lion decision of 1969—the case that upheld the Commission's long abandoned Fairness Doctrine policy. But the Center for Creative Voices and the Future of Music Coalition worry about such a move.

It's not like these groups are asking for the Fairness Doctrine back. They're not. But they also don't want the Second Circuit to dump one of the basic legal underpinnings of media regulation.

In Red Lion Broadcasting vs. FCC, the broadcasters argued that Fairness Doctrine enforcement (mandating that stations give air time to "both sides" of disputed questions) violated the First Amendment rights of a radio station and should be repealed. The high court disagreed.

The "scarcity of radio frequencies," Justice Byron White declared, complicates the First Amendment's applicability in this matter. Since most people cannot buy or run radio stations, license owners have an obligation to share the publicly owned airwaves with the public. "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount," White wrote. "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee."

Although the FCC abandoned the Fairness Doctrine over two decades ago, CCV/FMC say that Red Lion provides precedent for a host of crucial FCC powers: setting limits on media ownership, regulating non-commercial broadcasting, and managing spectrum.

"The major, and minor, decisions of communications policy should not be subject to second-guessing by non-expert judges, who could 'constitutionalize' and handcuff the FCC’s broad, flexible mandate to regulate the spectrum to serve the public’s interest," they argue. Crucial services like WiFi have depended on the agency's spectrum allocation authority, as does the FCC's ability to rule on the "white spaces" surrounding television signals. "Even if some Court would someday subject spectrum policy to intrusive second-guessing by the judiciary, this case is not the appropriate vehicle for that decision."

The FCC mutated its indecency policies into what they are today based on Pacifica, not Red Lion, so it is Pacifica that should be examined, the brief advises. Red Lion should remain in place.

But is spectrum still scarce?

Perhaps the most interesting question that this case raises is whether spectrum is still hard to come by. In their brief, NBC, CBS, and ABC argued that the scarcity days are long gone.

"The fact is that, today, 'spectrum' is not 'scarce,'" they told the Supremes. There were 7,411 terrestrial broadcasting stations in 1969 when Red Lion was argued. Today there are 15,736.

"Moreover, this explosion of traditional broadcast outlets has been accompanied, recently, by an explosion of new broadcast technologies—satellite television, satellite radio, HD radio, and low power FM, to name a few of the many," the networks' lawyers added (this line of reasoning almost never mentions the fact that the population of the United States also grew by 80 million people during those years).

Creative Voices and and Future of Music say that the spectrum scarcity argument remains valid in large part because spectrum value has dramatically grown, reflecting demand. The FCC's 2008 auction of the old 700 MHz television bands brought in over $19 billion in cash to the treasury, they note. And Congress boosted the value of local TV licenses in the 1990s by reviving "must carry" rules—these requiring cable companies above a certain size to transmit local TV signals.

"The proper question is not how many outlets there are, or how many outlets are technologically feasible, but how much demand is there for the available spectrum in light of the regulatory scheme," the brief concludes.

How will the Second Circuit deal with this scarcity conundrum? If the court takes it on, the judges might ask the FCC, as the "expert agency" involved, to come up with a position on the problem. Rest assured that quite a few people would be anxious to help the Commission out with that task.