Focus on Broadcast Indecency Continues, But FCC Tempers Move
 
March 31, 2005
 

Janet Jackson’s revealing moment during the 2004 Super Bowl triggered an intense national debate and a notable shift in the Federal Communications Commission’s (FCC) enforcement of the nation’s indecency rules.  After pushing the broadcast indecency standard’s outer limits for nearly a year, recent decisions suggest that the FCC may be charting a more balanced approach in 2005.  Addressing complaints filed against ABC Television and its affiliates, because they aired the uncut version of the graphic WW II movie “Saving Private Ryan,” the Commission found that expletives used in the film were not used to pander, titillate, or shock the audience, but rather to provide a realistic depiction of what soldiers experienced during the war. This decision suggests that the Commission is once again placing a significant emphasis on context when analyzing indecency complaints.  

Under traditional Commission analysis, actionable broadcast indecency describes or depicts sexual or excretory organs or activities in a manner patently offensive as measured by contemporary community standards for the broadcast medium (indecent content is prohibited during non-safe harbor hours of 6 a.m. to 10 p.m.).  In making indecency findings the Commission has considered the: (i) context of the broadcast; (ii) the explicitness or graphic nature of the broadcast; (iii) whether the broadcast repeats or dwells upon sexual or excretory subjects; and (iv) whether it appears to pander, titillate or shock. In several cases last year, the Commission stretched this traditional balancing test finding violations where the material only referenced sexual acts and where the depiction of a sexual organ was fleeting.  These decisions seemingly ignored the Commission’s usual consideration of whether the material “dwells on or repeats at length” descriptions of sexual or excretory organs and activities, and appeared to soften the “patently offensive” requirement to a standard where mere innuendo is actionable.   The Commission also took action in 2004 to define “profanity” and prohibited profane words during the 6 a.m. to 10 p.m. time period, while suggesting that a single utterance of the “F-Word” is an actionable violation without regard to context.   These changes appeared to set the stage for a near strict liability indecency standard. 

In three decisions released in late February 2005, however, the Commission seems to be taking a more restrained approach, including placing a renewed emphasis on context.  In the Saving Private Ryan decision, the Commission stated that “in light of the overall context of the film, including the fact that it is designed  to show the horrors of war … and the repeated warnings provided by ABC, not only in the introduction, but also at each commercial break, we find that the complained-of-material is not patently offensive as measured by contemporary community standards.”  Commenting on the case, FCC Chairman Powell said, “Context remains vital to any consideration of whether profanity or sexual content constitutes legally actionable indecency … [t]he Commission must stay faithful to considering complaints within their setting and temper any movement toward stricter liability if it hopes to give full effect to the confines of the First Amendment.”   This raises the question of whether the indecency standard will be applied consistently.  Will, for example, the indecency standard be applied in the same way to a “realistic” police drama as it is to a WWII movie?

In another departure from last year’s aggressive enforcement practices, the Commission appeared, in two recent cases, to strengthen the “patently offensive” prong of the indecency analysis.  Considering complaints about the shows Will and Grace and Arrested Development, that allegedly included “references” to graphic sexual content and “sexual innuendo,” the Commission determined that the material was not patently offensive because the cited dialogue was “neither sufficiently graphic nor explicit,” to render the program indecent.  

Despite these recent decisions, the future of the broadcast decency standard is murky.  The House of Representatives recently approved legislation to significantly increase the penalties for indecency violations, including mandatory license reviews for repeat offenders and individual liability for artists.  Similar legislation is pending in the Senate, where the Chairman of the Senate Commerce Committee has called for expanding the indecency regulations to cable and satellite services.  This Congressional pressure, combined with the departure of FCC Chairman Michael Powell, and other expected turnover at the Commission, could easily cause the FCC to once again take a more aggressive stance.   President Bush’s recent comments suggesting that parents need to take responsibility for what their children watch on television has shifted some of the intense focus away from broadcasters, but only further insight into FCC Chairman Martin’s agenda, resolution of pending indecency legislation on Capitol Hill, and completion of the Janet Jackson case, will provide the clarity broadcasters seek in this area of the law.

For more information, e-mail Reginal J. Leichty at reg.leichty@hklaw.com or call toll free, 1-888-688-8500.