Broadcasting in the Crosshairs

During the past year or so, federal regulators and legislators have subjected the broadcast industry to unprecedented threats of punishment. This wave of increasingly aggressive sanctions and regulatory proposals has taken many forms.

Regulation of Content

Indecency

The political posturing for the upcoming Presidential election has spawned substantial new federal efforts to punish indecent broadcasting. Indecent broadcasts are prohibited between 6 a.m. and 10 p.m. on the theory that children likely may be in the audience and should be protected from exposure to such material. To be actionable indecency, broadcast radio or television programming must describe or depict sexual or excretory organs or functions in a manner patently offensive as measured by contemporary community standards. In responding to an indecency complaint, the Commission should consider the following criteria:

• the entire context of the broadcast
• its explicitness or graphic nature
• whether it repeats or dwells upon sexual or excretory subjects
• whether it appears to pander, titillate or shock

Yet in a “get tough” approach popular with certain segments of the electorate, the Commission recently stretched the definition of indecency beyond all reason. The decision against Howard Stern’s show is a recent example. There, the Commission issued a $495,000 forfeiture because the broadcast included conversations making reference to oral and anal sex. (The text of many indecency decisions, including the recent Stern decision and the transcripts of the show are available at http://www.fcc.gov/eb/broadcast/obscind.html.) A reader reasonably may question whether the broadcast actually violated the rule because there was little or no description of the sexual acts, only references. However, the Commission expressly found that: “To the extent the discussion also used innuendo, rather than direct references, it is nonetheless sufficient to render the material actionably indecent because the sexual import of those references was ‘unmistakable.’”

The Stern ruling stretches the definition of indecency improperly. Now, “innuendo” may be counted as the kind of “patent” and “graphic” material to which children should not be exposed and for which broadcasters should be punished. This is as oxymoronic as it is legally irrational. “Patent” and “graphic” content means language that is indecent on its face – not hidden between the lines of a broadcast.

The Commission also found that sounds of flatulence or passing gas broadcast during the show to be material parts of the indecency violations. The FCC held that those “sound effects” contributed to a “tone” that was “vulgar and lewd.” A “vulgar tone” therefore also has become a material part of an indecency finding.

In another election year action, the Commission recently announced a definition of “profanity” and has banned it during the 6 a.m. to 10 p.m. time period, consistent with indecency. The Commission stated that profanity includes “language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to nuisance.” The Commission indicated that the “F-Word” is profane, such that a single utterance of it would be a violation, and that the Commission would consider other language also to be profane.

Strict and fair interpretation of the indecency standard has served the public interest for many years. FCC overreaching of the standard is improper and unfair. This is especially so because there is no indecency standard applied to non-broadcast audio and video media, such as satellite radio, the Internet, direct-to-home satellite television and cable television channels. Clearly, these also are media that our children tune-in or log-on to but are not regulated like the broadcast media.

Violence

Recently, the Commission has proposed substantial new areas of content regulation. For example, the Commission may, for the first time, define “violent” programming in order to ban it during hours that children are likely to be in the audience. Alternatively, the FCC may formulate of a definition of “gratuitous or excessive violence.” If the furor over the indecency standard is any indication, strict regulation of violence in broadcasting would cause considerable turmoil.

Localism

In another area of potential new regulation, the Commission has initiated an inquiry into “broadcast localism.” In that proceeding, the Commission is considering substantial new programming obligations, for example, new requirements for community-responsive programming, including locally produced programs, news, public service announcements, as well as local “ascertainment” of important public issues, enhancements of emergency warnings and required minimums of political broadcasting during election years. Requiring specified amounts of service to “underserved” audiences is another area the Commission asks if it should control. The Commission also inquires into issues connected to payola, plugola, national “play lists” and voice-tracking.

In addition, the Commission asks about the role that low power FM (LPFM) stations play in local service. At the same time, legislation has been proposed that would expand the availability of LPFM licenses by eliminating third-adjacent channel protection.

Many of these regulatory proposals are reminiscent of the kinds of regulation that the Commission eliminated in the early 1980s. In considering reenactment of such regulation, and more, the Commission also considers enforcement issues and whether the current license renewal process is sufficient, or needs to be made more stringent.

Enforcement and Fines

As with its aggressive pursuit of claims, the Commission has been increasing the size of fines at an alarming rate. For example, as stated earlier, the fine imposed for the Howard Stern indecency decision was $495,000 – this was the single maximum fine at the time of $27,500 multiplied by 18 for some of the radio stations which carried the broadcast. Since that decision a few months ago, the Commission has adjusted the maximum fine for inflation, so now it stands at $32,500 per violation, rather than $27,500.

However, if current legislation passes into law, the maximum forfeiture would increase to $275,000 per violation, with a single maximum of $3 million per day. In other words, the exact same Howard Stern broadcast in the near future might have landed Clear Channel with a fine of $3 million.

Similarly, the Commission has increased the maximum fine for violations of its rules governing the Emergency Alert System (EAS) from $8,000 to $32,500 per day, with a maximum of $325,000 for a “continuing violation.” The Commission also is considering requiring broadcasters to turn control of their stations over to local authorities in times of emergency during an EAS alert, so that such officials may send out warnings directly.

As if all of that were not enough, the FCC recently proposed to enforce payments of forfeiture decisions and other “non-tax” fees (such as annual regulatory fees), by refusing to process applications. In the event that fines and fees at issue remain unpaid, then the Commission would dismiss applications on file. This would apply to all applications, including license renewals.

Last but not least, the Commission is holding a proceeding in which it has proposed to require all radio and television stations to maintain recordings of all programming broadcast for up to 90 days. This would be intended to make enforcement against indecency violations more effective. It also represents the return of another regulation removed by the Commission about two decades ago. However, with the possible advent of new violence, EAS and localism regulations, such a recording requirement stands as a substantial new burden.

Direction

It is entirely clear that the FCC and Congress have broadcasting in their sights. The march against broadcast indecency continues, including the well-publicized attempts by the Commission to find and fine supposedly indecent television broadcasts by Oprah and, perhaps, during daytime soap operas. The indecency rampage likely chills broadcast creativity while popular radio shows abandon broadcast stations in favor of the unregulated services carried by the satellite radio providers. New content regulation connected to localism and violence, if put in place, would exacerbate these effects.

Some of this punitive activity may be election-year politics and could fade away after November. However, potentially significant proceedings concerned with broadcast localism and violence cannot be concluded before 2005. Therefore, the Presidential election will have a profound effect on the direction, if any, that such proceedings take. Changes in Presidential administration and FCC Chairman may be decisive.