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September 9, 2011 by · Leave a Comment 

In addition to the Janet Jackson “wardrobe malfunction” case the Supreme Court may now hear the FCC’s appeals of two other decisions by appellate courts that appeared to deal a death blow to the agency’s enforcement of broadcast decency rules. On Thursday the commission filed a 54-page petitioner brief refuting the appellate courts’ rulings that the agency’s decency rules are unconstitutionally vague. Those rules, it noted, were designed to protect impressionable youngsters. “Millions of households in which television sets are present do not subscribe to cable or satellite services and therefore receive only broadcast programming,” the FCC lawyers said in their brief. “Broadcast programming also remains uniquely accessible to children, in part because its availability to children does not depend on any affirmative conduct by parents (such as subscription to a particular cable channel) beyond the initial acquisition of a television or radio.” Moreover, it concluded, “Regulation of indecent material has been a defining feature of broadcasting since the medium’s very inception, and it is one of the enforceable public obligations that broadcasters accept in return for their free use of the public’s airwaves.” (In 2006 the FCC said that 14 percent of American homes receive television off the air. It did not say how it arrived at that figure. In 2008 the Television Bureau of Advertising said that 90 percent of TV households have either cable or satellite.)