WATCHDOG: Bozell says his group has doubled its size in seven years
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Cable TV doesn't use those airwaves. It transmits over cables laid and paid for by private industry. So it's questionable whether any extension of the FCC's powers to cable would be constitutional. Likewise, many legal experts think the fact that satellite radio requires a subscription fee would make it tough for regulations there to stand up in court. "I'd love to see cable and satellite covered," says conservative Senator Sam Brownback, Republican of Kansas. "But I just think you have limitations."
Yet the mere threat of legislation can create a chill. Law professor Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, calls this "regulation by raised eyebrow. If it goes too far, it gets out of hand. Then the government is at risk of acting beyond its constitutional powers." And that chill can have effects far beyond what the FCC is empowered to do directly. Says Shield creator Shawn Ryan: "There will be things that we will never see, that are victims of this mind-set. Nobody is really brave enough to take away the shows that people love. But it will have an effect on shows that the networks look at and decide aren't even worth producing."
Even more daunting to broadcasters is uncertainty. They say they have no idea what is acceptable now, and the FCC won't spell it out. Contrary to popular belief--and George Carlin's seven-words-you-can't-say-on-TV routine--there are no stone tablets to clarify that thou shalt never utter this word or show that body part. The FCC will rule on indecency after the fact--sometimes twice. At the 2003 Golden Globes, singer Bono of U2 called his band's winning Best Original Song from a Film "f___ing brilliant." In October 2003, the FCC ruled that the expletive was not indecent, because Bono was not describing a sex act. The following March, the commission reversed itself, though it did not fine NBC. After the ABC affiliates passed on Saving Private Ryan--which uses the same expletive in the same nonliteral way--the commission said the film was not indecent because of its critical praise and wartime context.
"You don't know where the line is," says John Ridley, a novelist and a TV and film writer who has written for cable and broadcast, "and that's what's scaring people." To better draw the line, industry sources tell TIME, broadcasters are considering a court test case--possibly even trying to overturn the 1978 ruling that defined the FCC's indecency standard, on the grounds of inconsistency. "There are two difficulties" that the FCC faces, says a broadcast executive. "One is that extreme [regulatory] positions are going to run into constitutional problems. The second is inconsistent and vague rulings are going to run into constitutional problems." Another strategy for networks is to argue that the existence of the V chip--a device, mandated on all television sets 13 in. or larger manufactured since 2000, that allows parents to block content considered suspect--demonstrates that there are less intrusive means of controlling content. The PTC counters that the V chip is not ubiquitous or widely used enough and that the voluntary ratings system it draws on is faulty.