Fox: How can the FCC fine us when they don't publish the rules?

The FCC was in court last week, defending its recent indecency rulings before an appellate panel of judges. The case at issue was brought by Fox after the network was sanctioned (but not fined) by the agency for a pair of curse words that went "unbleeped" during two different awards shows. The FCC found the broadcast indecent and Fox sued, looking for clarity as to what constitutes indecent material.

Fox is confused because the FCC does not issue clear standards about what is and is not acceptable on TV and radio. The agency believes that doing so would amount to censorship, so they only sanction broadcasters once a show has aired. The obvious problem here is that broadcasters never know in advance if a show will be found indecent; the end result is self-censorship by networks trying to avoid the FCC's wrath.

The justices grilled both parties to a crispy golden brown (watch the video at C-SPAN) and showed tremendous skepticism toward many of the FCC's claims. Because the agency's powers to regulate indecency rarely receive a court hearing, the case could be an important one. It's too early to know how the court will rule (the decision is not expected for several more months), but the ruling could curtail the FCC's power to regulate broadcast content.

If it does so, it won't quite be the Wild West—the networks will still be accountable to their public. Groups like the Parents Television Council (which is by some accounts responsible for 99 percent of FCC indecency complaints) will shift their focus from the FCC to the networks, who will then be on the receiving end of e-mail and letter campaigns, boycotts, and punditry whenever they show material that some consider objectionable.

Given that YouTube, webcasts, and cable television all go largely unregulated by the government, is it only a matter of time before the agency loses its sanctioning power over the major broadcast networks? Or will it convince the judiciary that over-the-air broadcasters need special government oversight? Given the direction that things are moving in the industry, it may not really matter either way; unregulated distribution channels (web broadcasts, cable channels, satellite radio, BitTorrent, etc.) are exploding. The major networks will simply avoid FCC problems by censoring over-the-air broadcasts and making the unedited material available online (as NBC recently did with the SNL joke song "Dick in a Box").

The FCC will eventually need to 1) call "uncle" and devote its resources to other regulatory problems, 2) start regulating all sorts of new distribution channels, or 3) continue to regulate over-the-air broadcasters even as they lose relevance and simply post objectionable material online. We're going with option three unless the court forces the FCC's hand.