May 8, 2006

Beware The Ides Of March – FCC Issues More Indecency Decisions

Holland & Knight Newsletter
Charles R. Naftalin

On March 15, 2006, in much anticipated actions, the FCC issued decisions in response to dozens of broadcast indecency complaints.1 These decisions affirm past precedent and offer new guidance in a number of areas in addition to establishing new requirements. The following is a brief update.

In general, the FCC upheld its authority to penalize broadcast stations for airing indecent or profane material. Indecency is defined as programming that depicts or describes sexual or excretory organs or activity, in a manner that is patently offensive as measured by contemporary community standards for the broadcast medium.

Profanity is defined as language that is “so grossly offensive to members of the public that it amounts to a nuisance.” Earlier cases found all variations of the “F-word” to be actionably profane. Now and henceforth, all variations of the “S-word” are to be considered actionably profane.

Here are some of the highlights of the Commission’s decisions released on March 15, 2006.

Building on its Married by America precedent (which remains in litigation), the FCC determined that WB affiliate WBDC-TV, Washington, D.C., violated the indecency standard by airing an episode of “The Surreal Life.” The episode involved pixilated nudity and simulated sex acts. The station was fined the maximum amount of $32,500.

For the first time, the Commission proposed forfeitures against Spanish language programming. The Commission acted against three Spanish language stations. One such station was fined $32,500 for airing a program in which a woman was graphically raped, although with essentially no nudity. Another station was fined $32,500 for a Spanish talk show featuring a partially nude woman. A third Spanish language station was fined $220,000 for airing a number of risqué music videos ($27,500 fine per video) featuring partial nudity accompanied by some sex-oriented Spanish lyrics.

A PBS station was fined $15,000 for airing a documentary concerning Blues musicians. The program contained many uses of the F-word and S-word. The Commission rejected the argument that the documentary included the actual language of the musicians. Unlike Saving Private Ryan or Schindler’s List, the FCC determined that the use of profane words in the Blues documentary was not “essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance” and that substitution of other language or “beeping out” offensive language would not have materially altered the nature of the work.

ABC network stations also were under the gun for an episode of NYPD Blue. Although the FCC concluded that the NYPD Blue episode was indecent and profane because of its use of the “S-word,” the FCC did not issue forfeitures because the episode was broadcast prior to decisions establishing the profanities as actionable. Therefore, none of the ABC affiliates has been fined.

CBS affiliates were not so lucky. Many of them were fined $32,500 each for airing an episode of Without a Trace that the FCC determined to be indecent due to inclusion of a scene that the FCC considered to a teenage “sexual orgy.” However, only those stations against which a complaint was filed were fined. If a CBS affiliate did not have a complaint filed against it, no fine was issued even though the station clearly aired the program.

The FCC upheld its controversial Janet Jackson/Superbowl decision concerning the infamous “wardrobe malfunction.” Only CBS owned and operated stations are subject to those forfeitures.

Several other programs were considered indecent or profane but no forfeitures were issued. These were the 2002 and 2003 Billboard Music Awards, another episode of NYPD Blue and the Early Show. Fines were not issued because these programs aired prior to the FCC’s warning that it might treat separate indecent utterances in the same program as separate violations. In the future, however, this will not be the case, because stations are now deemed forewarned.

Finally, there were a number of programs that the FCC determined were not indecent or profane. These included episodes of Alias, Will & Grace, Two and a Half Men, Committed, The Amazing Race 6, an advertisement for a Reno hotel and a paid political advertisement. A number of other shows which included mild expletives (such as bitch, hell and damn) were determined not to be indecent or profane.

Now that these indecency decisions have been issued, it is anticipated that the FCC will act soon to grant the many license renewal applications that have been pending for over a year.

The release of these decisions does not end the indecency debate. It is likely that some of these decisions will be appealed to the courts, and eventually may be ripe for Supreme Court review. Commissioner Adelstein, for one, is concerned that the courts may find against the FCC, thus removing the FCC’s ability to enforce indecency standards at all. In addition, the seemingly random decision to fine certain CBS affiliates and not others may be construed by the courts as “arbitrary decision making” subject to reversal.

In the meantime, all broadcast stations (radio and television) should be careful to avoid any broadcast of the F-word, S-word, or any variations of them, and should carefully screen any material that could be deemed to be indecent sexual or excretory activity.

1FCC 06-17, 06-18, and 06-19. Copies of the decisions are available on the FCC’s Web site,

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