Time Warner Fears Cable Indecency Rules

August 13, 2008
By Ted Hearn

Washington—Time Warner Inc. is concerned that banning fleeting indecency on broadcast TV could be used to justify regulating cable television programming for indecency for the first time.

The company, a major owner of cable TV systems and programming networks, stated in an Aug. 8 filing in the U.S. Supreme Court that government regulation of television content shouldn't be allowed to spread to the cable medium.

“This court should never lose its vigilance to prevent restrictions on broadcast speech from spawning copycat restrictions on non-broadcast speech,” the company said.

Time Warner noted in the court brief that prominent individuals such as Federal Communications Commission chairman Kevin Martin have called for greater content regulation of the pay TV industry.

“Members of the FCC at various times have expressed an interest in obtaining the authority to regulate the content of cable television speech as well as broadcast television speech,” Time Warner said.

Time Warner is spinning off its cable company but it will continue to own HBO, CNN, AOL and various video-hosting Web sites. Unlike local TV stations, cable networks are not governed by federal indecency laws enforced by the FCC.

Some think that cable's ability to air unrestricted programming in terms of nudity and language provides an unfair advantage over TV stations, which can't air FCC-deemed indecent content from 6 a.m. to 10 p.m.

In recent years, the FCC has begun punishing TV stations for the broadcast of fleeting nudity and vulgar language. The agency's crackdown reversed three decades of precedent in which only repetitive and lengthy acts of indecency were considered violations.

The Supreme Court has agreed to review a June 2007 ruling by a panel of the U.S. Court of Appeals for the 2nd Circuit which struck down the FCC's fleeting indecency crackdown as a policy reversal that the agency failed to justify under a due process law that independent agencies are required to follow.

In the case, the FCC found indecent Fox’s live coverage of the 2002 and 2003 Billboard Music Awards. In 2002, singer-actress Cher used the phrase, “F---’em,” in her acceptance remarks. A year later, Hollywood actress Nicole Richie said “cow s-word” and “not so f---ing simple” during an awards presentation.

Time Warner told the Supreme Court that it should not affirm the FCC's new fleeting indecency standard. It also said that blocking technology—such as the V-chip, lock boxes and set-top boxes with parental controls—are more than adequate to shield children from inappropriate content on cable.

“In light of the tools available to allow viewers to choose what cable speech to hear and not here, the government cannot possibly establish that content-based restrictions on such speech pass First Amendment muster,” Time Warner said.

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