By Steven J.J. Weisman
BOSTON – Somehow it seems particularly fitting that the FCC chose April Fools’ Day to issue a press release in which it indicated that as a result of its review of its broadcast indecency rules following the Supreme Court’s decision in the case of FCC v. Fox Television Stations, Inc., it had managed to reduce its backlog of pending indecency complaints by more than one million — which represented 70% of the outstanding pending complaints. How, you might ask, was the FCC able to carefully evaluate more than a million complaints in only six months? It was easy. These cases were summarily dismissed for various reasons, such as being beyond the FCC’s five-year statute of limitations, involved cases outside of the FCC’s jurisdiction, contained insufficient information or were not actionable due to previous established precedents. Cases were also dismissed for being, in the FCC’s words “too stale to pursue,” although there is no FCC definition of staleness. It is also interesting to note that the FCC has not brought an action against a broadcaster for indecency since 2008 and that order of the FCC against Fox involving the 2003 broadcast of the show “Married by America” — which originally carried a $1.18 million fine, later reduced by the FCC to $91,000 — was ultimately voluntarily dismissed by the FCC in September of 2012.
A cynic might find it curious that the reason for the staleness in those cases was the FCC’s total ignoring of these cases for years, although in the FCC’s defense, a reasonable case could be made for the agency’s hesitance to act in the last few years as Fox’s challenge to the indecency regulations made its way through the federal courts and ultimately to the Supreme Court which decided the case (sort of) on June 21, 2012. However, as for the cases that were dismissed for having insufficient information or being not actionable due to previously established precedents, those facts should have been readily apparent to the FCC years ago.
In its April 1 public notice, the FCC not only proudly proclaimed its resolution of more than a million indecency complaints, but also indicated it is “actively investigating” what it referred to as “egregious indecency complaints” and would continue to do so. What actually makes a case “egregious” is not very clear because there is no definition of “egregious” in the FCC regulations, where it seems filth is in the eye of the beholder. Apparently, egregious violations of the indecency rules is the FCC’s new standard for action.
Many people had hoped that when the Supreme Court made its decision in the FCC v. Fox case in which the constitutionality of the FCC’s indecency rules was challenged, that the Supreme Court would determine the rules were unconstitutional and that the rules were outdated and did not serve their original purpose because of a dramatically different media landscape from 1978 when the rules were initially upheld in the FCC v. Pacifica case involving George Carlin’s “Filthy Words” monologue. However, as the Supreme Court often does in politically sensitive cases, in the FCC v. Fox case it ducked the issue. It ruled in favor of Fox and dismissed FCC determinations of indecency violations involving brief nudity and fleeting expletives. However, it did so on Due Process grounds saying that Fox could not be held responsible for rule violations when the interpretation of the rules by the FCC were not in place at the time of the original broadcast of the shows later deemed to be in violation of the rules. The interpretation of the indecency rule changed after the offending shows had aired. In fact, in regard to fleeting expletives, which involved the words of Bono at the 2003 Golden Globe Awards, when upon receiving an award he uttered, “This is really fucking brilliant. Really, really great,” the FCC’s own Enforcement Bureau did not find the utterances to be violations of the indecency rules at the time. It was not until later, following a perceived public concern as to the decision that the FCC reversed its ruling and found Fox to be in violation of its newly minted interpretation of the indecency rule when it stated that the word fuck was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language” and changed its former rules to now state that “any use of that word or a variation, in any context, inherently has a sexual connotation.” As to the word being said in a mere fleeting utterance, the FCC then stated, “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” This was a total reversal of previous policy.
Ultimately, the Supreme Court took absolutely no position as to whether the indecency rules were unconstitutional or not indicating that “because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy.”
In a marginally constructive move, the FCC’s public notice of April 1 also invited public comment on whether or not the FCC should change its indecency rules to go back to permit so-called isolated expletives or fleeting utterances, such as for example where a news broadcaster slips up and utters the word “shit,” a word that FCC commissioners and lawyers find themselves unable to speak and only refer to it, even in court hearings as “the s word.” This reasonable interpretation of the FCC’s indecency rules was, in fact, the FCC policy for many years until it summarily and without notice decided in the Bono-Golden Globe case that anytime the words “shit” and “fuck” were used, they were potentially violations of the indecency rules. I say potentially because even though the position of the FCC is that these words are always violations of the FCC indecency rules, exceptions have been made for Steven Spielberg movies, such as “Saving Private Ryan.” Additionally, the rules defining fleeting nudity as a violation of the FCC’s indecency rules were deemed not to apply to Steven Spielberg’s “Schindler’s List.” This curious situation prompted Supreme Court Justice Elena Kagan to comment in court, “Nobody can use dirty words or nudity except Steven Spielberg.”
The FCC’s public notice was greeted with concern in some quarters. Tim Wildmon, the president of the American Family Association is greatly concerned about any changes from the FCC’s indecency rules as utilized prior to the Supreme Court’s recent Fox decision. According to Wildmon, “American society is moving further and further away from the Biblical standards of morals and decency set by God, to the point that we have to worry about what our children view in the supermarket checkout, in their school textbooks, and now even in their own homes on television and radio. We’re urging the FCC to uphold high decency standards in entertainment in order to protect America’s children and families.”
What Wildmon may not understand is that if he is worried about television and radio, he has lost the battle. As we all know, the FCC’s authority only applies to broadcast television and broadcast radio. It does not apply to cable or satellite television or satellite radio. As the children of today click on their television’s remote control, I don’t think they are necessarily distinguishing between broadcast television and cable. And why should Wildmon’s definition of Biblical standards of morals and decency set by God be determinative for everyone? Wildmon and others who believe like him have every right to set the standards for viewing in their own homes, but why should they set the standards in everyone else’s home?
It is important to note that the FCC does not initiate complaints for indecency, the public does. However, often the public outcry is not as large as it may seem. The case against “Married by America” was based on what initially appeared to be only 159 complaining letters, however, upon closer examination there were only 23 individuals who filed complaints and of those 23 individuals, there were only three different letters. As often is the case in indecency complaints, someone or some organization provides a form letter that other people use.
Presently the FCC is still operating under its three-prong test for indecency which is:
- An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- The material must depict or describe in a patently offensive way, sexual conduct specifically defined by applicable law; and
- The material, taken as a whole, must lack serious, literary, artistic, political or scientific value.”
The relative weight that must be given to each factor in a particular situation is left to the discretion of the FCC. It is important to note that recognizing that contemporary community standards is a key element of any indecency infraction, some have argued that no action is necessary by the FCC at all in regard to protecting people from indecency. Shows that offend the public will find that they lose viewers and when shows lose viewers, they lose advertisers, and when they lose advertisers, they are cancelled.
It is interesting to note that the FCC’s decision that started its more active enforcement of the indecency rules, the 2004 Superbowl wardrobe malfunction of Janet Jackson that resulted in an FCC issuing a $550,000 fine against CBS was ultimately overturned in federal court and deemed to be “arbitrary and capricious.”
The whole matter of the FCC’s byzantine indecency policy might be amusing were it not for the fact that indecency complaints can ultimately threaten the broadcast licenses of stations airing the material deemed objectionable.
The public’s comments and suggestions as to the FCC’s indecency rules were invited by the FCC in its public notice. The deadline for such comments is May 1.
Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine and publisher of the websitewww.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss the subjects of identity theft and scams. Meet Steven J.J. Weisman at TALKERS New York 2013 on Thursday, June 6.