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Last week, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Act”) which, among other things, reinstates the FCC’s former Video Description rules for television broadcasters, extends closed captioning of video programming to the Internet, and requires the FCC to examine methods of increasing the accessibility of emergency information. The President signed the bill today, October 8, 2010.

The Act is designed to update the Communications Act to account for the many new technologies available in today’s marketplace and to assure that they are accessible to persons with hearing or vision impairment. The Act outlines a decade-long timetable for the submission of various reports by a new advisory committee to the FCC, and then by the FCC to Congress, and the implementation of further regulations based on the findings of those reports. When fully implemented, the Act will require that specific amounts of digital television programming contain video descriptions, that certain video programming distributed via the Internet contain closed captions, and that consumer electronics devices contain features to promote accessibility and be hearing aid compatible. We have summarized the Act’s requirements in three phases below.

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After we published our Advisory reminding licensees of the deadline to electronically file the Quarterly Children’s Television Programming Report on FCC Form 398 for the Third Quarter of 2010, the FCC disclosed that it has modified its electronic filing system to require the entry of a Federal Registration Number (“FRN”) and password as the final step before the report can be filed. The FCC issued no advance public notice of this requirement, but instead placed the following notice on its webpage dedicated to the Children’s Television Act of 1990, although NOT on the page that licensees visit to prepare and file the report itself:

To enhance the security and integrity of the KidVid database, we now require authentication with an FRN and password associated with the broadcast facility for each Form 398 filing. After you have completed Form 398, you will be prompted to enter this information. You must enter your FRN and password to complete the form. If you have forgotten your FRN password, please contact the CORES helpdesk at 877-480-3201.

Because of the potential for surprises associated with the implementation of this new requirement, we recommend that, if possible, licensees complete their Form 398 filings in advance of the filing deadline. The filing deadline for this quarter falls on Tuesday, October 12, 2010 due to the Columbus Day holiday, so Friday, October 8, 2010 is a good target date for completing the Form 398. This will allow additional time for station personnel to address any issues that arise, such as determining which FRN and password combination(s) will be accepted by the filing system, and, if necessary, to locate the correct information.

Should you have any questions regarding this Alert or the FCC’s children’s programming requirements in general, please contact any of the attorneys in the Communications practice section.

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The FCC today released an order refining, but largely reaffirming, its earlier decision to allow unlicensed devices to operate in the TV band as long as they do not cause interference to existing users such as TV stations and wireless microphone operators. While many refer to this spectrum as “white spaces” on the theory that it is vacant spectrum located between existing television signals, veterans of the digital television transition question whether white spaces more appropriately fall into the same category of mythical creatures as unicorns.
The digital transition’s compression of television stations that previously occupied Channels 2-69 nationwide into Channels 2-51 took a miraculous feat of engineering (and the displacement of a lot of LPTV stations). Many stations had to be wedged into the shrunken TV band with a shoehorn, which, at least in urban areas, left very little free spectrum. While the phrase “white spaces” evokes a mental image of vast open prairies, the densely populated areas that are the target markets for manufacturers of unlicensed equipment are already spectrum congested, and are more likely to offer “white spots” or “white specks” than white spaces. The benefit of the Commission’s order will likely be greater in rural areas, where spectrum congestion is not an issue even after the digital transition.

As long as the FCC lives up to the Prime Directive of not causing interference to existing inhabitants of the TV band, the benefits of better utilization of spectrum are hard to dispute. Broadcasters understand as well as anyone the challenge of eking out every last ounce of potential from spectrum. However, broadcasters are understandably concerned with a significant change made by the FCC in today’s order — the elimination of the FCC’s requirement that white spaces devices be able to sense local signals and avoid causing interference to them. By eliminating that requirement, the FCC removed the “safety valve” it had installed in its original plan. Instead, the FCC is placing its faith entirely in the creation of one or more privately-created and run databases of existing spectrum users that unlicensed devices will consult before selecting a frequency on which to operate.

Many in the broadcast industry have been strong proponents of requiring unlicensed devices to have “sensing” capability rather than relying solely on a national database of existing signals. “System redundancy” is an important feature in designing reliable communications systems, and removing that redundancy inevitably makes for a less reliable system. As the FCC has noted, eliminating the “sensing” requirement will reduce the cost of unlicensed devices, but as we discovered in the recent Gulf oil spill, short term decisions to reduce costs by reducing safety margins can have far greater and more expensive long term consequences.

While lacking any backup protection, a spectrum database could be a workable solution if properly implemented. However, the challenges of implementation are immense. Ensuring the accuracy of the database itself will be a challenge given constantly changing spectrum use by new and existing operators. Also, signals propagate differently depending on frequency, what part of the country you are in, local terrain, and various other factors, making the database either incredibly complex, or inadequate to address real world circumstances.

Viewers of TV stations in Fresno, whose real world signals extend far beyond their predicted contours because of terrain effect, will suddenly be subject to interference from unlicensed devices. In addition, you have to think that users of those unlicensed devices aren’t going to be too happy when their wireless network won’t function because (unknown to them) it is receiving interference from a TV signal that the database swears isn’t there.

Because of these and many other issues, the FCC needs to keep an open mind as it implements its proposed use of white spaces. A well-performing database that keeps licensed and unlicensed operators adequately separated is in everyone’s interest. If some of the FCC’s initial conclusions need to be rethought in order to accomplish that, those discussions will be healthy ones.

Equally important is ensuring that equipment manufacturers fastidiously comply with the FCC’s interference protocols. Broadcasters are rightly concerned that non-compliant or just poorly designed and manufactured unlicensed devices can cause immense damage, and the FCC lacks the tools to put the genie back in the bottle should that occur. Fining such manufacturers after the fact won’t help much if millions of interference-inducing devices are already out there interfering with the public’s ability to watch TV, listen to a sermon, or attend a Broadway show. As the FCC proceeds down this path, getting it right is going to be far more difficult than just getting it done.

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9/22/2010

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands and Washington, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction

October 1, 2010 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by October 1, 2010.

Under the FCC’s EEO rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending job fairs, and having an internship program.

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September 2010
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by October 10, 2010, reflecting information for the months of July, August and September, 2010.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given the fact that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below.

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One of the great things about being a communications lawyer is the wide array of issues you deal with over the course of a day. Contract lawyers negotiate contracts, and litigators litigate, but communications lawyers negotiate contracts, litigate, argue government policy, and generally are thrown into the breach whenever a problem emerges affecting their clients. As a very senior communications practitioner said when I was a young lawyer, “if you want to be a communications lawyer, you better be very good at your trade or have a damn good smile!”
Because of the diversity of communications issues out there, you never know when you answer the phone what the issue will be. One question I have received on multiple occasions over the years is whether it’s true that radio stations are prohibited from airing the sound of a police siren. I have had broadcasters swear there is a flat prohibition on this and that they were taught about it early in their career. While there is no outright prohibition, this “old broadcaster’s tale” stems from a 1970 FCC proceeding where several complainants sought such a ban. The FCC declined to prohibit these sound effects, but basically told broadcasters to use common sense when airing them. Not coincidentally, 1970 was the year that R. Dean Taylor’s song Indiana Wants Me made it to Number 5 on the Billboard charts, complete with siren. A siren-free version of the song was also produced to appease nervous radio stations (take a listen to the “with sirens version“; go ahead, I’ll wait till you get back).

I was reminded of all this today when I received a client call asking about a radio ad from the oil company ARCO that includes the Emergency Alert System tone at the beginning of the spot. The Society of Broadcast Engineers has posted an MP3 of the ad here.

The EAS tone differs from police sirens in two important ways. First, the airing of the EAS tone or a simulation of the tone where no emergency or authorized EAS test exists is flatly prohibited by Section §11.45 of the FCC’s Rules (“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”). It could also potentially violate Section 73.1217, the FCC’s prohibition on broadcast hoaxes.

Second, unlike members of the public who usually can discern from context whether a siren or other emergency sound is a cause for concern (does Indiana really want them?), the electronics that monitor radio signals do not have this capability. As a result, the airing of the commercial has accidentally activated EAS receivers around the country, which hear the alert tone and activate the local emergency alert system as though an actual emergency is occurring. It appears the tone in the spot was tweaked to speed it up a bit, but apparently not enough to avoid fooling at least some EAS receivers.

Stations airing the spot, particularly where EAS activations have occurred, should get in touch with their communications counsel immediately. The FCC’s words from 1970 are still relevant here: “The selection and presentation of advertising and other promotional material are, of course, the responsibility of licensees. However, in this selection process, licensees should take into account, under the public interest standard, possible hazards to the public. Accordingly, in making decisions as to acceptability of commercial and other announcements, licensees should be aware of possible adverse consequences of the use of sirens and other alarming sound effects.” It may take 40 years, but what goes around, comes around.

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Having spent a good portion of last week on the road and on conference calls talking about the latest Performance Tax developments, I heard a lot from broadcasters on the subject. For those blissfully unaware of this legislative battle, the recording industry has been seeking a financial parachute from broadcasters to help slow the rate of its descent into an economic abyss. The irony of course is that if illegal music downloads on the Internet are what has caused the recording industry’s plunge, reaching out to drag broadcasters into the abyss with them merely weakens an ally in the battle to protect content from illegal distribution over the Internet.

Famously dubbed a performance “tax” by broadcasters, the legislation sought by the recording industry would require broadcasters to pay royalties to the recording industry for playing music on-air. Beyond the obvious short term benefit of royalty checks from broadcasters that choose to retain a music-based format, the recording industry hopes the passage of a U.S. law requiring such royalties for broadcasts in the U.S. will cause foreign countries to release royalties already being collected for airplay of U.S. artists in those countries. Unfortunately, because most of the record companies are now foreign-owned, much of that money, along with royalties paid by U.S. broadcasters, would wind up in foreign hands, undercutting any argument for this “found money” being an economic benefit in the U.S. All of the royalty funds would come from the U.S., but only a portion of those funds would stay in the U.S. However, one would hope that at least some of those royalties, if they do come to pass, would actually reach the U.S. artists responsible for creating the music that the recording industry has been selling and reselling to us over the years.

Broadcasters have been successful in blocking Performance Tax legislation because of good grass roots efforts to remind Congress that radio promotes the sale of music at no charge to the record labels or to the artists that have ridden radio airplay to fame (and whose records and concert tickets continue to sell because of radio airplay). The long, sordid history of payola — the record labels’ efforts to curry airplay via cash and other payments to radio station programmers — supports broadcasters’ proposition that the “value” of radio airplay exceeds any “costs” it imposes on the recording industry.

It was therefore with great surprise that many radio broadcasters heard last week that negotiating teams for the two industries were floating a multi-part proposal to resolve the legislative impasse — a compromise that would require, for the first time, that artist (as opposed to songwriter) royalties be collected on broadcast airplay of music. While the proposal has some attractive features for broadcasters (most importantly the inclusion of FM receiving chips in cellphones), I got an earful from broadcasters absolutely incensed at the notion of promoting music and concert sales, and then being charged for doing it.

If any member of Congress thinks that “radio promotes music sales” is just a broadcaster talking point for meetings, encountering a broadcaster last week would have decisively corrected that impression. Some broadcasters I talked to had such a visceral reaction to the very concept of such payments that it didn’t matter to them what the beneficial points of the proposal were. For them, it was as if someone had told them to “pay the ransom to the kidnappers and hope for the best.” Some appreciated that it could be the pragmatic thing to do to put the issue behind them, but still found the very concept reprehensible. To be sure, there is money involved and that can sway a person’s thinking. However, a number of the broadcasters I spoke with were so fundamentally opposed to the concept that they would reject the idea even if other parts of the proposal actually resulted in more money coming in from the proposal than going out.

I understand that perspective, but lawyers are trained to assess the options, and to assist their clients in choosing the best option for that client. Often, but not always, the “best” option is the one most economically beneficial to the client. Here, some broadcasters are not interested in the economics, but in the unfairness of being forced to pay a performance royalty as any part of the package. Despite that, all broadcasters should give the compromise proposal a careful look, if only to sharpen their understanding of the numerous issues in play and how they might affect the future of radio broadcasting. There are any number of reasons why the proposal might not gain momentum, or even be possible given the dynamics of Washington, and I hope to address those in a future post. For now, radio broadcasters should suppress the instinct to reflexively ignore it, and instead talk to their colleagues and counsel about the issues this proposal raises for their future, and for the future of their industry.

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July 2010
FCC Eliminates Earlier Proposed Fee Reductions for Radio and Sets Hefty Increases for UHF Television Stations
Last week, just as broadcasters were finishing up with their new Biennial Ownership Report filings, the FCC released its final order setting the annual regulatory fee amounts stations must pay for Fiscal Year 2010. In so doing, the FCC erased promised reductions in annual regulatory fees for radio broadcasters and reallocated the television fee burden from VHF broadcasters to UHF broadcasters, resulting in considerable increases in the fees paid by UHF broadcasters over last year and even over the Commission’s prior proposals for FY 2010.

Background
Each year, the FCC reports to the Office of Management and Budget the amount of money that the FCC estimates it will need to run its operations in the coming year. Congress generally accepts this estimate and sets it as the amount that the FCC is statutorily obligated to raise from its licensees through annual regulatory fees. Between 2008 and 2009, fee amounts increased by about 10%, prompting outcries from broadcasters that the fee increases have historically been too high year to year, and that they were simply intolerable in a year in which the industry was so adversely affected by the economic downturn.

Perhaps because of this, for 2010, the Commission requested, and Congress required, that it raise 1.8% less revenue than it had in 2009. Based on that reduction, in April the FCC released a Notice of Proposed Rulemaking proposing modest, across the board cuts in the amounts paid by radio licensees. Only AM construction permits were to increase–by $20. In contrast to the broad increases in television fees experienced in 2009, the FCC’s proposals were for modest increases in some, but not all, television categories. In most television categories where an increase was proposed, it only amounted to a few hundred dollars over the 2009 level. Even the three categories that were hardest hit (VHF stations in Markets 26-50, and UHF stations in Markets 1-10 and Markets 11-25) only saw increases of a few thousand dollars. Article continues — the full article can be found at FCC Releases Final Regulatory Fee Amount
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At a recent presentation on legislative matters affecting the communications industry, I noted that broadcasters, while lately feeling much under siege, should not underestimate their part in the digital future. It is true that the government wants broadcasters’ spectrum (the National Broadband Plan), cable operators want broadcasters’ programming, ideally for free (the retransmission battles in Congress and at the FCC), politicians want broadcasters’ airtime (the DISCLOSE Act), musicians want broadcasters’ money (the Performance Tax), and the Internet would love to have broadcasters’ audiences. However, the conclusion to be drawn from those facts is that broadcasters have what everyone else wants, and need to themselves capitalize on those important assets.

Let there be no doubt that broadcasters are in for some challenging times fending off those who covet their riches, but that is a far better position than having no riches to covet in the first place. As the possibilities for television and radio multicasting become better developed through experimentation and innovation, mobile video gains the prominence in the U.S. that it is experiencing overseas, and broadcasters continue to refine how best to leverage their content on multiple platforms, broadcasters have as good an opportunity as anyone to make their mark in a digital future, while others fall by the wayside as “one-idea wonders.”

Unfortunately, government has begun to place its thumb on the scale, discouraging broadcasting while encouraging other wireless uses. The latest example is this week’s introduction of the Spectrum Measurement and Policy Reform Act (S. 3610) by Senate Communications Subcommittee Chairman John Kerry (D-Mass.) and Senator Olympia Snowe (R-Maine). The legislation would encourage broadcasters to abandon spectrum for a share of the government’s auction proceeds for that spectrum, and authorize the government to impose spectrum fees on broadcasters. In other words, the FCC can use spectrum fees to “encourage” broadcasters to relinquish their spectrum.

This government push is propelled by one of the oldest myths regarding broadcasting, and one of the newest myths. The first myth is that broadcasters are the only licensees who have not paid for their spectrum, and therefore merit less leeway in how they use it, or whether they get to use it at all. Of the thousands of broadcasters I have worked with over the years, however, only a handful actually received their spectrum for free. The vast majority bought their stations (and FCC licenses) from another party, paying full market price, and therefore being really no different than the wireless telephone licensee that also bought its FCC authorization from a prior licensee. Whether some earlier, long-gone broadcast licensee that built the station enjoyed some financial windfall doesn’t bring any benefit to the current licensee. The current licensee inherited the dense regulatory restrictions of broadcasting, but not the “free spectrum.”

In addition, new broadcast licensees have generally purchased their spectrum at FCC auction since Congress changed the law in 1997, just like wireless licensees. Despite that, no one has suggested that even these more recent licensees should be released from FCC broadcast regulations because they paid the government for their spectrum.

The second and newer myth, propogated by advocates of the National Broadband Plan, is that broadcasting is a less valuable use of spectrum than wireless broadband since spectrum sold for wireless uses goes for more money at auction than broadcast spectrum. That is, however, a distorted view of value. Everyone, including the FCC and the wireless industry, has denoted broadcast spectrum as “beachfront property” from a desirability standpoint, meaning that it is not the spectrum, but the regulatory limits placed on it, that is creating the difference in cash value at auction. An alternate way of viewing it is that the public receives that difference in auction value every day from broadcasters in the form of free programming and news, rather than in the form of a one-time cash payment to the government. That the public receives more value for their spectrum from continuing broadcast service than from a one-time auction payment (that is swallowed by the national deficit in a matter of seconds) becomes more obvious when you realize that the public will then spend the rest of their lives leasing “their” spectrum back from the auction winner in the form of bills for cellular and broadband service.

An apt analogy is national parks. Would selling them outright for industrial use bring in more cash than keeping them and allowing them to be enjoyed by the public? Certainly. Is selling them for industrial use therefore the most valued use of parkland? Hardly.

Broadcasters have been good tenants of the government’s spectrum, paying the public every day for the right to remain there. If they stop those public service payments, they lose their license, making way for a new tenant. This new legislation aims to entice these paying tenants from their spectrum so that the spectrum can be sold outright to the bidder who perceives the greatest opportunity to extract a greater sum than the auction payment from the public. That may be poor public policy, but it is at least voluntary for the broadcaster, though not for the public. Threatening to tax broadcasters with spectrum fees until they surrender their spectrum is not marketplace forces at work, but the government forcing the marketplace to a desired result. Proponents of wireless broadband must have little confidence in their value proposition if they feel they can come out ahead only if they first devalue broadcast facilities by imposing yet more legal and financial burdens on broadcasters.

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In light of today’s decision by the US Court of Appeals for the Second Circuit invalidating the FCC’s indecency policy, it would be hard to justify writing about anything else. From my first days as a young lawyer screening programs before they were aired (I still remember assessing the legalities of airing a live satellite feed of “Carnaval” from Rio) to defending stations accused of airing indecent programming in FCC enforcement actions, the FCC’s indecency policy has been an ever-present, ever-broadening part of the practice. While the definition of indecency has remained largely constant (“language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities”), its interpretation has always been a moving target.

When the Supreme Court originally found that requiring indecent content to be channeled into late-night hours was constitutional, it did so based upon a narrow view of what qualified as indecent content (basically George Carlin’s “Seven Dirty Words” routine) and the assurance of the FCC that restrained enforcement would protect First Amendment concerns. Over the next twenty years or so, broadcasters programmed accordingly, and with a few exceptions, broadcasters and the FCC learned to coexist on the issue of indecency.

However, the rise of cable television placed immense pressure on both television and radio broadcasters to more precisely map the boundary between “decent” and “indecent” content. While most broadcasters remained determined to stay on the “decent” side of that line, they could no longer afford to remain at such a safe distance from that line as to be deemed “fogey programming” by a generation of consumers that did not distinguish between broadcast programming and cable programming. To these viewers, all channels are equal, and whether programming arrives by cable, satellite, or antenna is beside the point. To reach this audience, many programmers struggled mightily to make their programming more edgy and relevant to young adults. This programming stayed clear of Carlin’s seven dirty words, and focused more on situation and entendre to engage its audience.

In response, the FCC stepped onto a slippery slope, seeking to broaden its interpretation of indecency by expanding its view of what constitutes “patently offensive” material. The FCC was not prepared for the mission it undertook. What at first appeared to be a slippery slope of line drawing quickly became a well-greased plunge into the abyss of eternal peril. Those filing complaints at the FCC often urged the agency, as a practical matter, to forget that indecency must be patently offensive and instead sought action against content that was merely offensive to the complainant. The result has been a gut-wrenching high speed slalom down the slippery slope, resulting in the FCC’s headfirst encounter today with the large oak doors of the Second Circuit’s courtroom.

Although the court based today’s ruling on a finding that the FCC’s interpretation of indecency is impermissibly vague, and therefore chilling of protected speech, the problem actually goes far deeper than that. Some of the greatest damage to free speech has resulted from complaints where just about everyone, including the FCC, would agree that indecency is not present. While baseless complaints were once met with a prompt and pleasant FCC letter notifying the complainant that the subject of their complaint was categorically not indecent, the FCC in later years treated every complaint even mentioning the word “indecency” as a reason to put a hold on that station’s license renewal or sale application for literally years until the FCC could investigate the complaint. In the meantime, these stations struggled, as a delayed license renewal made obtaining financing difficult, and a delayed sale often meant that the contract to sell the station expired before the FCC could resolve the indecency complaint and approve the sale. Under these circumstances, it is pretty easy to see how a station would be hesitant to say anything offensive to anyone, even without the potential for a $325,000 indecency fine.

Among the “indecency” complaints I have encountered that were holding up a station’s applications at the FCC was a complaint from a politician who didn’t like what a station said about him (apparently using the word “indecent” in his complaint got it put into the indecency pile), and a complaint that a Spanish word yelled at soccer matches when a goal is scored sounds too much like a bad word in English. When such complaints are allowed to languish or become the basis of a pointless inquiry, they interfere with the operations of a station, serve to chill future speech, and create a “bunker mentality” among broadcasters that anything they say will be held against them.

So where does this leave us? Well, as a pragmatic matter, the court’s ruling will not become effective until it issues its mandate, and the FCC may ask that the court delay taking that action while the FCC seeks a rehearing en banc or review by the Supreme Court. If the court’s ruling does become effective, it will apply only within the jurisdiction of the Second Circuit (which includes Connecticut, New York and Vermont). Both legally and politically, the FCC will feel compelled to pursue an appeal, and the result of that effort will determine the future of its indecency enforcement efforts across the US.

That places the FCC in a very high stakes game of poker. Does it place an ever larger bet on trying to defend its existing policy? If it does, it runs the risk that the Supreme Court will rule that the very notion of indecency enforcement is unconstitutional in light of a changing media landscape and the FCC’s seeming inability to apply a narrow and restrained enforcement policy. Or, does it fold this hand and return to the table later with a “back to basics” indecency policy similar to what was once found constitutional by the Supreme Court? One thing’s for certain–for the first time in a long time, broadcasters are holding all the right cards in this game.