June 7, 2006

The New Era of Indecency Enforcement by the FCC

Holland & Knight Newsletter
Charles R. Naftalin

Several networks and other broadcasters are challenging recent Federal Communications Commission (FCC) rulings that would impose significant financial penalties for programming that the FCC has deemed indecent.

As widely publicized, the FCC in March released a series of new decisions concerning enforcement of its indecency and profanity standards against broadcast licensees. In three lengthy orders, the FCC: (1) affirmed its 2004 notice proposing a forfeiture of $550,000 against CBS due to the Janet Jackson Super Bowl “wardrobe malfunction”; (2) issued a notice of apparent liability of the maximum forfeiture amount of $32,500 against every CBS owned or affiliated television station (a total of $3,595,250) for a scene in Without a Trace showing a “teenage sexual orgy”; and (3) issued an order finding indecency and profanity violations in several other cases.

These decisions offer new guidance to some extent, but unfortunately, often contradict each other or rest upon less-than-neutral judgments. They continue a trend in enforcement which started about three years ago and stretches the FCC’s indecency standard.

While tough news for the industry in these instances, the recent decisions affirm the indecency standard:

Indecency findings involve at least two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition – that is, the material must describe or depict sexual or excretory organs or activities… [s]econd, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

The FCC has emphasized that the “community standards” are not local or regional but are to be based upon the “average broadcast viewer or listener.” In determining whether broadcast material is “patently offensive,” the FCC states that it will examine the “full context” of the broadcast, considering three principal factors:

(1) the explicit or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience.

In order to fulfill the government’s interest in protecting impressionable children, the FCC is permitted only to prohibit indecent broadcasts during hours when children are likely to be in the audience. Accordingly, stations are prohibited from broadcasting indecent programming from 6 a.m. to 10 p.m., local time. The time period from 10 p.m. to 6 a.m. is a “safe harbor” during which the FCC may not punish licensees for broadcasting indecent material. The indecency standard applies solely to broadcasting.

In the March 2006 decisions, the FCC ruled that some words are so “vulgar and coarse” as to be “grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Previously applying this standard, and reversing its decades-old “fleeting exception rule,” the FCC had held that U2 star Bono’s utterance in a live broadcast of the Golden Globe awards – “This is F---ing brilliant!” – was indecent.

In its recent rulings, the FCC applied the Golden Globe orders and rejected a fleeting exception argument in the case of Janet Jackson’s “wardrobe malfunction.” The FCC also now has doubled the number of epithets considered to be actionable profanity as a matter of law, specifically stating that all variations of the “S-word” are a violation, including “bull----,” “horse----,” “s--- - eating grin” and “smooth as owl s---.” However, in the contexts before it, the FCC found that the following words and phrases did not violate the profanity standard: “hell,” “damn,” “bitch,” “pissed off,” “up yours,” “ass,” “for Christ’s sake,” “kiss my ass,” “fire his ass,” “ass is huge,” and “wiping his ass.”

In an especially troubling ruling to many, the FCC also proposed a substantial forfeiture against a noncommercial educational TV station which broadcast the PBS documentary “The Blues: Godfathers and Sons.” Interviews of some of the musicians included numerous utterances of the “F-word” and the “S-word” during the evening prior to 10 p.m., locally. The FCC held that such language was not:

[E]ssential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance, or that the substitution of other language would have materially altered the nature of the work.

The FCC contrasted the Blues documentary to similar language from scenes in Saving Private Ryan, which the FCC found was not indecent a few years ago.

Challengers have filed petitions for review in the District of Columbia and Second Circuits, in which they argue that: (1) the indecency standard is constitutionally problematic; (2) the modern, seamless multi-channel video lineup of both cable and broadcast programming render the FCC’s approach outdated; (3) cable-like blocking technologies, such as the “V-Chip,” permit parents to screen objectionable material; and (4) any “broadcast scarcity” rationale is undermined by the recent explosion of Internet media sources.

However these challenges come out, a number of indecency decisions eventually will wind their way through the courts and resolve some of the uncertainties currently facing broadcasters.

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