Profanity Ruling Could Boost Net Neutrality

by Wendy Davis, Apr 29, 2009, 6:27 PM

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The U.S. Supreme Court's decision this week to back the Federal Communications Commission in its hard line against profanity on TV could also boost the FCC on a seemingly unrelated matter: its decision to sanction Comcast for violating net neutrality principles.

In the case decided this week, the Supreme Court upheld the FCC's finding that broadcasting "fleeting expletives" -- in this case, instances of swearing by celebrities on live TV -- was indecent.

Prior to 2004, the FCC took the opposite position -- that the use of fleeting expletives wasn't indecent.

Fox and other TV broadcasters argued that the FCC's sudden reversal wasn't fair. But the Supreme Court rejected that argument, in part because the FCC didn't impose fines or other penalties on the networks. (The Supreme Court didn't decide whether the FCC's stance violates the First Amendment. Instead the court told the Second Circuit Court of Appeals to consider that question.)

In Comcast's case, the FCC sanctioned the cable company for violating net neutrality principles by slowing peer-to-peer traffic, but didn't fine it. Instead, the FCC ordered Comcast to stop throttling peer-to-peer traffic (which Comcast had already done by the time the FCC ruled on the case) and to provide the agency with details about a new traffic-shaping plan.

Comcast is now arguing in court that the FCC had no authority to even make that order because it was based on a 2005 policy statement and not an official rule.

But some lawyers say that if it's OK for the FCC to do a turnaround on fleeting expletives, the agency also has the power decide that particular methods for shaping Web traffic are unlawful without first issuing formal regulations. Harold Feld, legal director of digital rights group Public Knowledge, for one, made that argument in a blog post about the issue. "It is hard to argue that the FCC can reverse policy consistent with due process, but cannot announce/clarify policy consistent with due process," he wrote.

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