Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had languished for years at the Commission. Part II reviews the FCC's request for public comments in April 2013 regarding whether it should change or maintain its current indecency policies. Next, Part III analyzes the FCC's March 2015 decision to fine WDBJ the maximum $325,000, as well as the arguments made against that decision on appeal by WDBJ and others, including the NAB and RTDNA. Finally, the article concludes by calling on the FCC to reverse its decision against WDBJ and, more importantly, to precisely clarify its policy regarding fleeting instances of indecency and to specifically define "egregious" indecency.
Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein & Tershone Phillips, Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues, 51 U. Rich. L. Rev. 329 (2017)