By Steven J.J. Weisman
BOSTON — Earlier this week, the FCC announced that it intends to fine television station WDBJ of Roanoke, Virginia $325,000 for broadcasting an image of a penis in a corner of the television screen for three seconds in a story that WDBJ ran on its six o’clock news on July 12, 2012. The story was about a retired porn star, Harmony Rose, who was now working as an EMT. In the broadcast of the story, a visual image of a porn website for which the star had worked was shown in a corner of the screen. While putting the story together, no one who worked on the story noticed a penis was viewable on the image of the website. According to WDBJ, which has never been fined in the past, the image was not even viewable on the editing machines used to create the story. According to WDBJ president and general manager Jeff Marks, “We are surprised and disappointed that the FCC has decided to propose to fine WDBJ for a fleeting image on the very edge of some television screens during a news broadcast. The story had gone through a review before it aired. Inclusion of the image was purely unintentional.” This fine, if it stands, would be the highest fine the FCC has ever issued for a single incident broadcast on one station and ten times higher than previous single broadcast fines for indecent material.
According to Travis LeBlanc, the FCC’s chief of its Enforcement Bureau, “Our action here sends a signal that there are severe consequences of TV stations that air sexually explicit images when children are likely to be watching.” It should be noted, however, that although the hour at which the broadcast was aired was certainly one where children would be watching television, the six o’clock news hardly competes against Sponge Bob when it comes to younger viewers.
This is, of course, Janet Jackson’s fault. Although the FCC’s fine against CBS following the notorious “wardrobe malfunction” of Janet Jackson at the 2004 Super Bowl was ultimately overturned, Congress was spurred by the event to pass the Broadcast Decency Act that raised the fines for indecency to a maximum of $325,000 for a single offense and it is this maximum fine that the FCC is attempting to impose on WDBJ. The minimum fine for an indecency violation is $7,000.
When the Supreme Court issued its ruling on the FCC’s indecency rules on June 21, 2012, many had hoped that the Supreme Court would follow the lead of the Federal Appeals Court and find that the FCC’s rules were unconstitutional, however the Supreme Court failed to do so and instead unanimously ruled that the indecency rules as applied by the FCC against various television programs violated due process requirements. Justice Kennedy wrote in his decision, “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… at this time.” While the Supreme Court overturned the FCC’s fines against Fox, the network broadcasting the specific programs that were the subject of the FCC’s fines, it left the FCC “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.”
A year after the Supreme Court’s decision, the FCC reduced its backlog of indecency complaints that had accumulated while FCC vs. Fox Television, Inc. had been pending by more than a million complaints, which represented 70% of the outstanding pending complaints on the grounds of the statute of limitations, staleness (which is undefined), the complaints being outside of FCC jurisdiction, the complaints containing insufficient information or previous precedents. In response to the remaining complaints, the FCC had not brought legal action against a broadcaster for indecency until 2014 when two radio stations paid fines of $15,000 and $37,500 to settle FCC indecency charges. It is interesting to note that the WDBJ incident took place less than a month after the Supreme Court decision, yet it took the FCC more than two years to act on it.
At the time of the FCC’s announcement proclaiming its resolution of the million complaints by dismissing them, which was announced on April 1, 2013, the FCC did say that it was “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.
Federal regulations are violated if indecent material is aired between 6:00 am and 10:00 pm although these regulations only apply to broadcast radio and television and do not apply to cable or satellite.
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. Recognizing contemporary community standards is a key element of any indecency violation. Some have argued that no action is necessary by the FCC at all in regard to protecting people from indecency because shows that offend the public will find that they lose viewers and when they lose viewers, they lose advertisers, and when they lose advertisers, they are cancelled.
Many are questioning the size of the WDBJ fine particularly when it was an obvious mistake rather than an intentional exercise of pushing the indecency envelope as has been the case with indecency fines from years past when hosts such as Howard Stern were often singled out for indecency charges.
WDBJ has indicated that it will oppose the proposed fine. Under federal law, the station has thirty days to file a written challenge to either reduce or dismiss the fine.
Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com. He can be e-mailed at: email@example.com. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams. Meet Steven J.J. Weisman at Talkers New York 2015 on Friday, June 12. To register call, 413-565-5413.