August 07, 2010

By BEN SHEFFNER

Rock'n'roll is about flouting the rules, sticking it to the Man and driving parents insane.

The Federal Communications Commission is about issuing regulations, keeping unruly broadcasters in line and ensuring that the airwaves are safe for children.

On July 13, rock'n'roll won a round, as a New York federal appeals court told the FCC that, despite its mandate to keep the airwaves free from indecent material while kids may be watching or listening, it cannot ban so-called "fleeting expletives"—isolated outbursts of profanity—without making it very clear upfront what is allowed.

The case at hand involved TV broadcasts, not music. But it was related to musicians, and other participants in music awards shows, who have an amazing propensity to go on TV and say things they're not supposed to.

Like U2's Bono, who, during the live 2004 Golden Globe Awards telecast, reacted to winning an award by saying, "This is really, really fucking brilliant." Or Cher, who during the televised 2002 Billboard Music Awards, said, "People have been telling me I'm on the way out every year, right? So fuck 'em." And then, of course, there was Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl.

The FCC had determined that these incidents were indecent, which the commission defines as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities."

In its decision in Fox Television Stations v. FCC, the U.S. Court of Appeals for the Second Circuit held that that standard is simply too vague, "result[ing] in a standard that even the FCC cannot articulate or apply consistently." And because this vague standard causes broadcasters to steer far clear of potentially offensive language whenever possible, they end up self-censoring even completely lawful speech.

How does the court's ruling affect the music industry? First, it will make the producers of awards shows and other live events breathe a bit easier, knowing that an errant four-letter word from a tipsy winner or presenter isn't likely to result in a massive fine.

Also, it may potentially give radio stations a bit more confidence that they can play some of the grittier material by hip-hop artists and hard rock bands without having to bleep offending lyrics or air a clean version of a song.

But will the ruling unleash a torrent of profanity on the airwaves, causing parents to forbid their kids from listening to anything but Radio Disney? Hardly. The FCC indecency rules are certainly one reason that broadcast TV and radio remain relatively clean. But there's another force that's at least as powerful in keeping the most offensive material off the air: advertisers.

Even if the law will allow it, few mainstream advertisers will want their goods and services hawked in close proximity to a barrage of F-bombs, and it's radio station sales managers—not lawyers—who will likely be the first to get an earful if DJs start raunching it up between 6 a.m. and 10 p.m., when the indecency rules apply.

Indeed, the absence of dirty words on TV and radio even during the time frames when the FCC indecency regulations don't apply is telling; broadcasters have their own policies and practices that are generally much more conservative than what the law permits.

The FCC will likely appeal the Second Circuit's decision to the Supreme Court. And we may get the most important ruling on broadcast indecency since 1978's FCC v. Pacifica Foundation, in which the court, in a 5-4 decision, upheld the FCC's determination that comedian George Carlin's "Seven Dirty Words" routine was indeed indecent.

It's impossible to predict with certainty what the high court will do. But there is little doubt that the justices must acknowledge the profound technological and cultural changes that have occurred in the 32 years since the Pacifica case, including the advent of the profanity-saturated Internet and cable TV networks, as well as the general coarsening of the culture.

Whichever way the court rules, a desire to please advertisers will likely ensure that radio stations and awards show producers will keep a lid on profanity. ••••

Ben Sheffner is a copyright attorney who has represented movie studios, TV networks and record labels. Sheffner works as an attorney in the NBC Universal Television Group, which is 20% owned by Vivendi, the parent of Universal Music Group. He is the author of the Copyrights & Campaigns blog (copyrightsandcampaigns.blogspot.com).

Subscribe to Billboard magazine today!