Twerking on MTV? Sorry, the FCC’s hands are tied

September 25, 2013

Miley Cyrus VMAMiley Cyrus’ theatrical attempt to shed her “Hannah Montana” image on this year’s MTV Video Music Awards certainly garnered publicity for the young pop artist. She clearly embraces the idea that “no publicity is bad publicity.” While many were satisfied to stand around the workplace water cooler and comment or complain about her highly sexualized declaration of freedom from all things Disney, some felt the need to make a more official complaint. The Federal Communications Commission regulates interstate radio, television, wire, satellite and cable communications in the U.S. The FCC received a large number of complaints about Cyrus’ performance, many insisting that they do something to sanction MTV for subjecting their innocent minds and eyes to the twerk-happy former Hannah Montana. The Smoking Gun blog has collected some of their favorite complaints via a FOIA request. Note: depending on your employer, this page may be NSFW, as it does contain an action photo of Miley Cyrus and the infamous foam finger.

But, as Above the Law points out, the FCC doesn’t have much authority over alleged indecency on cable television. Try this WestSearch:

FCC REGULATION OF INDECENCY ON CABLE TELEVISION

Results include:

THE FCC IN 2010: SEVENTY-SIX YEARS OF OBSCENITY, INDECENCY, AND INCONSISTENCY, 39 Cap. U. L. Rev. 621 (2011)

Cable television—Regulation, Rights and Liabilities in Media Content: Internet, Broadcast, and Print § 5:1

Cable obscenity and indecency—Regulation of cable obscenity and indecency—Cable indecency, Cable Television and Other Nonbroadcast Video § 6:112

This last article indicates that “Attempts to restrict cable indecency in the same manner as broadcast indecency have been uniformly struck down.” It also notes that although the current state of the law is a bit unclear, the FCC has indicated that “the legal status of cable indecency is different from that of broadcast indecency” and so the FCC does not regulate indecency on cable television.

For this last statement, the article cites, IN THE MATTER OF VARIOUS COMPLAINTS REGARDING CNNS AIRING OF THE 2004 DEMOCRATIC NATIONAL CONVENTION, 20 F.C.C.R. 6070, 2005 WL 646639 (F.C.C. 2005).

The decision provides more insight:

““Indecency regulation is only applied to broadcast services,” not cable. In declining to review complaints regarding cable indecency, the Commission has said that cable services “are not broadcast services, but subscription-based services, which do not call into play the issue of indecency.” Under 18 U.S.C. § 1464, the Commission has express statutory authority to impose sanctions for the broadcast of “any obscene, indecent, or profane language by means of radio communication.” As the Commission recently stated: “… the criminal code restriction on indecency applies only to ‘means of radio communication’ and therefore not cable communications.” Thus, the Commission does not regulate cable indecency. More generally, the Commission also has made clear that indecency restrictions do not apply to other subscription services: “[T]his case, which involves subscription as opposed to conventional broadcast service – does not call into play the issue of indecency.”