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- Title
Branding as an Antidote to Indecency Regulation.
- Authors
Rakowski, Kristin L.
- Abstract
En the wake of CBS's broadcast of a bared breast during the 2004 Super Bowl and Fox's airing of the isolated, unscripted expletives Nicole Richie and Cher uttered during their speeches at the 2002 and 2003 Billboard Music Awards, the Federal Communications Commission (FCC) drastically changed its policy on television indecency. Among other changes, airing fleeting expletives would now be met with hefty fines. In addition to being an arbitrary and capricious shift in policy, such zealous regulation violates the First Amendment. When the Supreme Court last considered broadcast indecency regulation, thirty years ago in FCC v. Pacifica Foundation, the Court considered surprise to be one of the central justifications for giving broadcast less First Amendment protection than it gives to cable-and all other media. The idea was that viewers flip through channels frequently and could never be warned properly of the indecency to come, warranting curtailed First Amendment freedom for the broadcaster who was intruding upon their home. But now that broadcast television networks are establishing for themselves narrow niches (in terms of content and the level of indecency permitted), and familiarizing the public with those niches through branding techniques, the "surprise" rationale is undercut because brands warn viewers of what to expect from the network. Because viewers are no longer "surprised" by indecency, stringent regulation of broadcast television is unconstitutional. Further, cable's deeply defined brands provide a powerful reason to think that cable viewers know what they are getting when they tune into a particular network, and that the FCC's strict regulation of broadcast television cannot constitutionally be extended to cable. This Article argues that television networks warn viewers of their content through "branding," providing an alternative to FCC regulation of broadcast television and concludes that the strength of network brands undermines the justification for regulation of broadcast television and precludes extending it to cable.
- Subjects
CANADA; BROADCASTING industry; CANADIAN Broadcasting Corp.; RICHIE, Nicole, 1981-; MUSIC awards
- Publication
UCLA Entertainment Law Review, 2009, Vol 16, Issue 1, p1
- ISSN
1073-2896
- Publication type
Article
- DOI
10.5070/lr8161027119