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We recently wrote about the FCC’s request for comments on how to enforce its indecency policy, and how to deal with the backlog of hundreds of thousands of complaints pending at the FCC. The FCC has now set the dates for comments in this proceeding – with initial comments due on or before May 20, 2013. Reply comments may be filed on or before June 18, 2013.

As we wrote in our article two weeks ago, the FCC is asking for comments on whether it should formally adopt a probation on “fleeting expletives” (though, according to an article published over the weekend, even the FCC's Chairman recognizes that there are circumstances where some of those expletives are justified as, according to an FCC Tweet, he agreed that the use of an expletive by a Boston Red Sox player after the events of last week was understandable). The question of the constitutionality of the indecency policy was not addressed in the request for comments – but certainly seem to call for consideration as part of any decision as to where the rules go in the future. So sharpen your pencils, and get your comments in by May 20. 

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The FCC's indecency policy has been in limbo since last year's Supreme Court decision determining that the Commission's fines on broadcasters for fleeting expletives had not been adequately explained before being imposed. On Monday, the FCC took a step to clarifying that policy by asking for public comments on what it should do now. Should it formally adopt the policy that bans even fleeting expletives, and explain that policy to broadcasters to meet the issues that the Supreme Court raised? Or should it go back to the policy that had been in place before – the decision in the Pacifica case (known more popularly as the "seven dirty words" case, about which we wrote here) - where there had to be repetitive or deliberate use of expletives before the FCC would act. Comments will be due 30 days after this notice is published in the Federal Register, and replies 30 days after that.

The Commission stated that the public could comment on other aspects of its indecency enforcement as well, without specifying any specific areas of inquiry. One issue that would seem to be foremost in the FCC's inquiry, but one which was not mentioned at all, is the constitutionality of the policy and its enforcement. This was an issue that was twice teed up to the Supreme Court, and both times that Court managed to avoid the issue by deciding cases before it on procedural "due process" grounds – essentially that the FCC had not given sufficient warning before adopting fines or that the FCC otherwise had not followed its own procedures when it changed its policies to a stricter enforcement standard. As the Court never finally resolved the constitutionality issue, it may well be back before the Court again – especially were the FCC to decide to pursue the stricter standard applied by the last Commission.

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Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters' audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC's long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC's considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. 

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As you know by now, last week the U.S. Supreme Court found the FCC's enforcement of its indecency policy unconstitutional in FCC v. Fox.  As Bob Corn-Revere and Ronnie London described in our Advisory , this case concerned the 2002 and 2003 Billboard Music Awards shows televised by Fox as well as a 2003 episode of NYPD Blue televised by ABC.  While the Supreme Court did NOT address the First Amendment issue of whether the FCC can constitutionally prohibit fleeting expletives and momentary nudity, it did find that the FCC's enforcement of those policies with regard to these particular shows violated due process, because the networks had no advance notice of them.

As we noted more than a year ago, there are approximately 300 TV station renewal applications from the last renewal cycle still pending due to indecency complaints filed against them.  It is unclear how many of them relate to these particular shows, but to the extent any renewal applications have been held up due to complaints against these shows only, it should only be a matter of time before those renewal applications are granted.

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The Supreme Court heard oral argument today (Jan. 10, 2012) in FCC v. Fox Television Stations, which put squarely before the Court the constitutionality of the FCC’s current indecency enforcement regime.  The case came to the Court from decisions by the Second Circuit, involving broadcasts of the Billboard Music Awards and NYPD Blue, which held that the enforcement regime at the center of the FCC’s “crackdown” on broadcast indecency over the last several years had become unconstitutionally vague.

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The Third Circuit Court of Appeals today issued its decision in the case dealing with the FCC's fine for the Janet Jackson "clothing malfunction" Super Bowl incident.  The Court once again rejected the FCC decision - essentially upholding a 2008 decision that had found the FCC's indecency fine to be an arbitrary departure from prior precedent.  The Court found that the Commission had a policy of not finding a "fleeting image" actionable, and the Commission did not explain why it was changing its policy, or even acknowledge that it was in fact changing policy. The 2008 decision had been remanded to the Third Circuit by the Supreme Court after the Court's decision on the Golden Globes case (see our summary here and here), dealing with "fleeting expletives", to determine if the Supreme Court's decision had any impact on this case.  In today's decision, the Court also found that a fine cannot be imposed on a party who did not know that the conduct in which it was engaging could lead to a fine.  Bob Corn-Revere and Ronnie London from our firm litigated this case, and have written a much more detailed explanation of the Court's decision.  That explanation can be found here.  The full Third Circuit decision can be found here. 

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The FCC's indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit - essentially finding that the FCC's policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited.  After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.  The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue - resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.

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As the next broadcast license renewal cycle is about to begin in June (see our post here about that process), the last renewal cycle still has not ended despite the fact that the last renewal application due in that cycle was to have been submitted almost 5 years ago. At the NAB State Leadership Conference held in Washington, DC yesterday, FCC Commissioner Robert McDowell provided statistics about the hundreds of renewals still pending – principally due to indecency complaints against the stations. The FCC will not grant a license renewal application when there is an indecency complaint pending, as the grant of the renewal could preclude the FCC from taking action against the licensee on the complaints filed before the renewal grant. But with indecency enforcement in a holding pattern pending the final resolution of the pending court cases challenging the FCC’s renewal policy (with no immediate end in sight to the uncertainty that surrounds that policy), these renewals are still in limbo. The Commissioner did, however, provide some good news on the indecency front, noting that the Enforcement Bureau had started weeding through all of the pending complaints, dismissing those that were clearly without merit.

The dismissal of indecency complaints that were without merit is a seemingly small, but nevertheless significant, step in weeding out the backlog of renewal applications. The Enforcement Bureau has traditionally not looked deeply into the merits of each of the pending indecency complaints while the Court challenges to the policy were pending, presumably to avoid a waste of resources were the standards to change based on the Court review. But that avoided weeding out some clearly meritless complaints – ones that complained of content that was broadcast during the 10 PM to 6 AM indecency safe harbor, or complaints that were focused on issues that were not prohibited under the FCC’s policy and precedent – such as complaints that really centered on violence, or ones that dealt with innuendo rather than the use of prohibited words or the depiction of prohibited body parts. Up until now, except when there was a sale of a station pending, there was no pressing reason for the FCC to dispose of the complaints. Stations continued to operate, and the pending complaints had little day to day impact.  But, with the renewal cycle soon to begin again, the resolution of these issues takes on some urgency.

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The Second Circuit Court of Appeals today issued a Summary Order vacating the $27,500 FCC fines imposed on a number of ABC television network stations in the Central and Mountain time zones which had aired, prior to the 10 PM safe harbor, an episode of the television program NYPD Blue on which a woman's bare buttocks were shown on screen.  We had initially written about this case when the fine was issued in 2008, here.  While this case was on appeal, the Supreme Court issued its decision on the FCC's indecency rules in Federal Communications Commission v. Fox Television Stations, Inc, dealing with "fleeting expletives", upholding the more rigorous enforcement of the FCC's indecency rules begun under FCC Chairman Kevin Martin as being justified under administrative law procedures, but not addressing the constitutional issue as to whether the FCC's indecency policy could be constitutionally justified.  The Supreme Court remanded that case to the Second Circuit, which had initially thrown out the fines as being inconsistent with prior FCC precedent, for consideration of the constitutional issue.  In a decision released this past July following the remand, the Second Circuit determined that the FCC rules were unconstitutional, as they chilled the speech of broadcasters without giving broadcasters sufficient guidance as to what speech was permitted and what speech was prohibited.  Restrictions on speech which are "impermissibly vague" are constitutionally prohibited.  In today's decision, the Court relied on its decision from July and determined that, whether the indecency claim is based on speech or nudity, the FCC rules as to what is prohibited are impermissibly vague, and therefore the Court threw out the fines.

We have likely not heard the end of the indecency story yet.  These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues.  So stay tuned as these issues are sorted out. 

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As we wrote earlier this week, the US Court of Appeals for the Second Circuit on Tuesday struck down part of the FCC's indecency rules, finding that the rules were too vague and had an undue chilling effect on broadcasters.  DWT's First Amendment experts have now taken a closer look at the Court's decision in Fox Television Stations v. FCC and have released an advisory with further analysis.  The advisory, available here, provides further details and insight into the decision from Robert Corn-Revere and Ronald G. London.  Given that there are several other indecency cases still pending before the courts, including the Second Circuit, it will be interesting to see what impact this decision has on those pending cases and whether the FCC's indecency rules can ultimately withstand constitutional scrutiny. 

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The US Court of Appeals for the Second Circuit today struck down the FCC's indecency rules, finding that the rules were so vague as to not put broadcasters on notice of what programming was prohibited and what was permitted.  Today's decision was reached following a remand of this case to the Second Circuit by the Supreme Court.  The Supreme Court's decision did not resolve all questions about the FCC's rules, instead only deciding that the lower court's prior decision voiding the rules was not justified.  The prior Second Circuit decision had not been decided on a constitutional basis, but instead it was based on the Court's perception that the FCC had failed to justify its departure from prior FCC precedent that had excused broadcasters from liability for fleeting expletives.  The Supreme Court found that the departure from prior precedent was justified.  The Supreme Court left open the issue of whether the rules were constitutional, and sent the case back to the Second Circuit for further consideration.  In today's decision, the Second Circuit takes up the constitutional review left open by the Supreme Court, and has determined that the vagueness of the FCC's guidelines and the inconsistency in its decisions chilled the First Amendment rights of broadcasters in violation of the First Amendment. 

The Court, in reaching its decision, looked at a number of the Commission decisions on indecency which have arisen since the Commission started its enhanced enforcement of these rules in 2003.  After reviewing the cases, the Court felt that the FCC could not logically articulate when the use of certain prohibited words would be punished.  In one passage, the Court asks how the FCC can find that the broadcast use of expletives in the fictional movie Saving Private Ryan were permissible as the words were essential "to the realism and immediacy of the film experience for viewers", yet at the same time find that these same words did not rise to that same level of importance when spoken by real people in the PBS documentary The Blues.  The Court then cited numerous instances where broadcasters felt that their speech had been chilled - often refraining from airing significant programming for fear of FCC fines.  For instance, the Court cited one station that refused to cover a political debate as a candidate had previously used a forbidden word in a prior debate, and another case where stations did not run a documentary about emergency workers and the 9-11 tragedy as the documentary contained some actual footage from the Twin Towers, where emergency workers used some of those forbidden words. 

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Another year is upon us, and it’s time for predictions as to what Washington may have in store for broadcasters in 2010.  Each year, when we look at what might be coming, we are amazed at the number of issues that could affect the industry – often issues that are the same year to year as final decisions are often hard to come by in Washington with the interplay between the FCC and other government agencies, the courts and Congress. This year, as usual, we see a whole list of issues, many of which remain from prior years. But this year is different, as we have had a list topped by issues such as the suggestion that television spectrum be reallotted for wireless uses and the radio performance royalty, that could fundamentally affect the broadcast business.  The new administration at the FCC is only beginning to get down to business, having filling most of the decision-making positions at the Commission.  Thus far, its attention has been focused on broadband, working diligently to complete a report to Congress on plans for implementation of a national broadband plan, a report that is required to be issued in February.  But, from what little we have seen from the new Commission and its employees, there seems to be a willingness to reexamine many of the fundamental tenants of broadcasting.  And Congress is not shy about offering its own opinions on how to make broadcasting "better."  This willingness to reexamine some of the most fundamental tenets of broadcasting should make this a most interesting, and potentially frightening, year. Some of the issues to likely be facing television, radio and the broadcasting industry generally are set out below.

Television Issues.

In the television world, at this time last year, we were discussing the end of the digital television transition, and expressing the concern of broadcasters about the FCC’s White Spaces decision allowing unlicensed wireless devices into the television spectrum. While the White Spaces process still has not been finalized, that concern over the encroachment on the TV spectrum has taken a back seat to a far more fundamental issue of whether to repurpose large chunks of the television spectrum (if not the entire spectrum) for wireless users, while compressing television into an even smaller part of what’s left of the television band – if not migrating it altogether to multichannel providers like cable or satellite, with subscription fees for the poorest citizens being paid for from spectrum auction receipts. This proposal, while floated for years in academic circles, has in the last three months become one that is being legitimately debated in Washington, and one that television broadcasters have to take seriously, no matter how absurd it may seem at first glance. Who would have thought that just six month after the completion of the digital transition, when so much time and effort was expended to make sure that homes that receive free over-the-air television would not be adversely impacted by the digital transition, we could now be talking about abolishing free over-the-air television entirely? This cannot happen overnight, and it is a process sure to be resisted as broadcasters seek to protect their ability to roll out new digital multicast channels and their mobile platforms. But it is a real proposal which, if implemented, could fundamentally change the face of the television industry.  Watch for this debate to continue this year.

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In the past several weeks, broadcast indecency has been back in the news - seemingly almost on a daily basis.  First, there was the story about Bob McDonnell, the Republican candidate for Virginia governor who, seemingly inadvertently, dropped the f-bomb, perhaps as a result of tripping over his tongue during a news interview on a news radio station in Washington.  Then came the extensive coverage of New York City TV newscaster Ernie Anastos who, during on-air banter with the weather man, also let the f-word fly - in what was apparently not a slip of the tongue, but perhaps a slip of the brain, where the anchor must have thought that he was somewhere other than on the set of a live TV newscast.  And then this past weekend, an actor on Saturday Night Live let the word fly during the late night program.  These incidents come on the heels of the FCC releasing its statistics on complaints that it had received in the first quarter of this year (reflecting many indecency complaints in the last month), while the Commission has asked the Court of Appeals for the opportunity to reexamine its decision in the Janet Jackson case to determine if any violation of the indecency rules was "willful."  What does all of this activity mean?

The recent well-publicized on-air slip-ups demonstrate how the fleeting expletive, which have formed the basis of a number of recent FCC cases, including the Supreme Court decision upholding the FCC's authority to decide to change its prior holdings and issue fines for such utterances (but leaving open the constitutional questions as to whether the FCC regulation is consistent with the First Amendment), can no longer hide from public examination.  In the past, fleeting expletives were just that - fleeting.  If there was an on-air slip up, people in the audience may have done a double take, trying to decide if they really heard what they thought that they heard.  Often, there would be a shrug of the shoulders and the event would pass.  Not so in today's electronic world.  Now, when a politician or a TV announcer slips up and let's one of those you-can't-say-that-on-TV words slip, the listening public quite often has the opportunity to check out YouTube or some other website to confirm what they did or didn't hear.  As a recent press article about the NY anchor observes, these events become viral.  A similar observation was made today about the SNL skit.  And, when they become viral, the FCC often hears about it in the form of a complaint.  As the FCC does not usually monitor stations themselves looking for indecency, but instead only takes action where a member of the public complains, the viral preservation of these incidents have no doubt resulted in far more FCC complaints that would have otherwise occurred - certainly more than have occurred in the past.

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In light of the recent decision upholding the FCC's right to sanction licensees for violations of the FCC's Indecency rules for "fleeting expletives" in the Golden Globes and Billboard music awards, i.e. isolated profanity on the airwaves, the Supreme Court also remanded the Janet Jackson case to the Court of Appeals.  The one sentence remand (see page 2 of the list of orders) was so that the Court of Appeals could consider the impact of the fleeting expletives case on the Court of Appeals decision throwing out the FCC's fine on CBS for the fleeting glimpse of Jackson's breast during the Super Bowl half-time program.  The Third Circuit Court of Appeals that heard the Janet Jackson case had reached a decision very similar to the Second Circuit's decision in the Golden Globes case - finding that the FCC had not justified its departure from a policy of not fining stations for fleeting instances of prohibited speech or pictures, where the words or pictures were isolated and their broadcast was not planned by the station.  Given that the Supreme Court has remanded the case to the Court of Appeals, the lower court will now need to consider the same constitutional issue that the Second Circuit will consider in the Golden Globes case - while the FCC may not have violated administrative procedures in justifying its actions, are the FCC's indecency rules so vague and enforced in such a haphazard manner that they chill free speech or are otherwise unconstitutional?  Based on an analysis of the various concurring and dissenting opinions in the Golden Globes case, the Supreme Court might well decide the constitutionality issue against the FCC.  Could the final ruling in these cases have an impact far beyond the indecency question?

Two of the Davis Wright Tremaine attorneys involved in some of the indecency cases have written this memo, summarizing the Supreme Court decision in the Golden Globes case - pointing out how Justice Thomas seemed to imply that the constitutional basis of the FCC decision was suspect - even though he sided with the majority in finding that the FCC was justified in its administrative decision to find violations.  Justice Thomas seems ready to come down against the FCC on the constitutional issue were it to be squarely presented, questioning whether the Red Lion decision, justifying lesser First Amendment protections for broadcasters than other media outlets based on frequency scarcity, has continuing vitality.  Were this precept underlying the regulation of broadcast content to be undermined, the justification for much FCC content regulation could be in doubt.

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In a decision released today, the US Supreme Court upheld the FCC determination that fleeting expletives in the televised broadcasts of the Golden Globes and Billboard Music Awards violated the FCC's indecency rules.  In this case, called Federal Communications Commission v Fox Television Stations, Inc., the Supreme Court overturned the decision of the Second Circuit Court of Appeals, which had found the FCC decision to be arbitrary and capricious. The Supreme Court, in a 5-4 decision, determined that the FCC had adequately justified its departure from prior decisions in determining that it could sanction a station for a single "F-word" or "S-word" broadcast on that station outside of the 10 PM to 6 AM safe harbor.  However, the Supreme Court specifically declined to rule on the constitutionality of the indecency finding, as the Second Circuit had not made its decision on that ground.  The Supreme Court sent the case back to the Second Circuit for further consideration, recognizing that the constitutional issues with the FCC's enforcement policy might well be back before it again, "perhaps in this very case."

Thus, this decision was made on a very narrow basis - that the FCC had justified its decision to change its prior policies to find that a single fleeting expletive was actionable.  Decisions of administrative agencies like the FCC are given great deference by the Courts, as long as the agencies provide a rational basis for their decision, and as long as their decisions do not violate their statutory mandate or the constitution.  Here, the Court found that the Commission had provided a rational explanation of its departure from prior precedent., and had otherwise provided an explanation of its decision, so the Court was willing to find that the FCC had the power to make the decision that it did, overturning the Second Circuit's conclusion that the decision had not been rationally justified. 

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According to a recent article from the Des Moines Register, a station in Iowa recently fired two employees who, during what they thought was a break in programming, got into a heated, profanity-laden exchange which, luck would have it, ended up on the air as their mikes were live.  Fearing an FCC fine, the station owner fired the duo, hoping to mitigate any fine that the FCC might impose.  We will have to wait to see what impact the employers action will have on any action the FCC might take.  But the action demonstrates two things - first, mistakes happen and will happen whenever there is live programming.  Even clear station policies that absolutely ban such actions and make clear that they are a firing offense (as were apparently in place here) can't stop human beings from messing up.  Second, the case reminds all on-air employees that they need to respect a microphone, and need to assume that a mike that can pick up sounds is in fact doing so.  Even Presidents seem to have had problems remembering that fact, but these live-mike slip ups can lead to FCC indecency fines.

The action also reminds us that, with the new administration now in place, we don't know how the new FCC will enforce the indecency policy.  We are waiting for decisions on several court appeals of FCC indecency cases, and on the appointment of new FCC Commissioners.  Until we see the decisions in those cases, and find out who the new Commissioners are and how aggressively they want to enforce the rules, we will likely not know how cases like this one will be treated in the next few years. 

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On Monday's edition of Morning Joe on MSNBC, host Joe Scarborough, while recounting a story about Obama Chief of Staff designate Rahm Emanuel, dropped the "F-bomb" - seemingly without even realizing that he did it.  He genuinely looked shocked after being told that he had not used the euphemisms that we're using here, and apologized profusely, apologies that were even posted on the MSNBC website later in the day.  While the cast joked about the FCC fines that would be imposed, and discussed the legal ramifications about this incident, none seemed to recognize that cable - even basic cable - has not been subject to the same indecency regulation as over-the-air television, even though most basic cable networks generally observe the same standards observed by broadcasters to avoid offending their audiences (and perhaps inviting new attempts to regulate their operations.

Cases have generally held that cable, being a pay medium invited into the household, and with filtering technologies that allow particular channels to be blocked, does not have the same intrusive nature as the broadcast medium which comes in free to any house with a TV set and an antenna.  And, until recently when the V-Chip was introduced, over-the-air television did not have the same ability to block access to adult content.  It is interesting that this incident occurs only one week after the Supreme Court held its oral argument on the fleeting expletive case deciding if the inadvertent, unscripted use of a profanity should be subject to a fine.  If nothing else, this incident shows that mistakes happen even in the most unexpected places - who would expect that the host of a morning television program would slip up and let fly with an improper word?  This incident, and the cases before the Supreme Court, do not involve intentional, repeated use of profanity, like the George Carlin routine about which we wrote here, but instead just a fleeting isolated use of one of those "bad" words.  The FCC simply cannot demand perfection from its licensees without demanding perfection from society at large, which is clearly beyond the FCC's jurisdiction. 

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Congress years ago tried to regulate indecency on the Internet through the Child Online Protection Act, through regulation of content that was harmful to minors.  Because of the sweeping nature of the restrictions, the Courts have repeatedly invalidated the law.  We wrote in March 2007 about a Federal District Court decision invalidating the law (this post also details the provisions and prohibitions of the Act).  Now, the Third Circuit Court of Appeals has upheld the District Court ruling, finding that the law violated the First Amendment rights of website operators, as the government had not shown that the Act's restrictions were the least restrictive means of accomplishing the government's objectives - protecting children.  According to the Court's findings, voluntary filters would accomplish the same ends, and allow adults to view adult material which might be harmful to children under the Act's definition but which is not legally obscene and is therefore constitutionally protected .  Our law firm's  Advisory Bulletin on the Third Circuit's decision can be found here.  The Third Circuit decision is available here.

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The Third Circuit Court of Appeals today released a decision overturning the FCC's fine of CBS Television for its Super Bowl broadcast of the notorious Janet Jackson halftime show and her "clothing malfunction."  The decision is available here.  Our partner Bob Corn-Revere argued the case.  Full details on the decision are contained in our firm's Advisory Bulletin which was just issued.  But essentially, the court found that the FCC had not sufficiently justified its departure from prior precedent that any "fleeting" content would not result in a fine by the FCC, nor had the FCC justified its decision finding that the conduct of CBS was "willful," as the Court questioned whether the independent actions of Janet Jackson and Justin TImberlake could be attributed to CBS.  The decision was remanded to the FCC with the instruction that it could not fine CBS but that any further decision could be only declaratory in nature - setting policy for the future. 

If the FCC decides to wade back into the indecency area, it will have to deal with two decisions finding its rulings arbitrary and capricious.  We wrote about the Second Circuit decision throwing out the "fleeting expletive" fines arsing from slips of the tongue during the Golden Globes, the Billboard Music Awards and other programs (see our last post on that case here).  Of course, the FCC has asked the Supreme Court for review of the Golden Globes case, so we'll all have to stay tuned for more information about what action that Court will take, and what the FCC will do with respect to these decisions. 

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Today's morning newscasts were filled with the stories of the passing of George Carlin - a comedian and satirist who effectively wrote the indecency regulations that most broadcasters abide by - without the FCC ever having had to adopt the regulations that he attributed to them.  In the broadcast world, Mr. Carlin was probably best known for his routine about the Seven Words that You Can Never Say on TV.  When that routine was aired by a New York radio station, and heard by a parent who claimed that he had a child in his car when the routine came over his radio in the middle of the day, the resulting FCC action against the station resulted in appeals that ended in the Supreme Court which, in its Pacifica case, upheld the right of the FCC to adopt indecency rules for the broadcast media to channel speech that is indecent, though not legally obscene, into hours when children are not likely to be listening.  But what this case and the FCC ruling did not hold are perhaps more misunderstood than what the case did hold.

First, the case was about "indecency" not "obscenity."  Many of this morning's newscasts referred to the Pacifica decision as being an Obscenity decision.  Obscenity is speech that can be banned no matter what the time and place, as it is speech that is deemed to have no socially redeeming value.  Indecency, on the other hand, is a far more limited concept.  Indecent speech is speech that is constitutionally protected - it has some social significance such as the social commentary clearly conveyed by the Carlin routine.  It cannot be constitutionally banned.  But the Supreme Court upheld the FCC's decision in the Pacifica case that, because of the intrusive nature of the broadcast media, it can be limited to hours where children are not likely to be in the audience.  Hence, the FCC has a "safe harbor" that allows indecent programming between the hours of 10 PM and 6 AM, when "obscene" programming is never allowed on the air.

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A recent Washington Post article highlights a bill that was recently introduced in Congress suggesting that the FCC bring back their rules for audio descriptions of video programming - rules which were thrown out by the Courts several years ago as being beyond the scope of the Commission's authority without explicit Congressional authorization.  But not only does this bill propose to give that missing Congressional approval to the FCC to re-introduce video description requirements for broadcast television, but it would authorize the FCC to introduce these rules, and closed-captioning requirements, on all video screens, including MP3 players, wireless devices and other video devices getting their programming through the Internet or other digital technologies.  With this bill, and various other proposals that have surfaced in recent months, it seems more and more likely that, as the Internet becomes even more important in the provision of broadcast-like programming in the future, the FCC may be called on by Congress to impose broadcast-like restrictions on that programming.

The full text of the recent bill, introduced by Congressman Markey, Chair of the House Subcommittee on Telecommunications and the Internet, can be found here.  A summary of the bill is also available on Congressman Markey's website.  The bill deals first with the accessibility of telephones and other communications devices, before setting out the provisions dealing with the captioning and video description requirements for broadcast and Internet video devices.  The bill first asks the FCC to study and report to Congress on the issues with captioning and video description on video devices, and then asks the FCC to adopt rules governing these matters, making video programming placed on the Internet that was either broadcast on a television stations or which is "comparable" to broadcast programming to be subject to these rules.  The idea is to make all TV-like programming subject to the rules, no matter what device it is viewed on.  Presumably, if adopted, the law would allow the FCC to make exemptions for certain types of programming (just as it currently allows exemptions from the current closed captioning requirements for small entities that have insufficient resources to caption a program).  The bill also requires that the FCC make sure that program guides and emergency information are available to those with hearing or visual difficulties, and that the navigation devices on video receivers can  be worked by those with disabilities.  So the FCC would have much to do to comply with this law, if adopted, and all within an 18 month period.

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The Senate Commerce Committee held a hearing this week on the Future of the Internet, dealing principally with the issue of net neutrality - whether Internet Service Providers treat all content carried through their facilities equally.  This issue principally involves questions of whether ISPs can charge big bandwidth users for their content to be transmitted through the ISPs facilities, or to be transmitted at preferred speeds.  The testimony of Chairman Martin at the hearing raised several issues - issues both about what he said and what some reports perceived him to say.  Some reports had him saying that the FCC did not need to regulate indecency on the Internet - though I never heard that question asked. But he did say that he did not have trouble with ISPs blocking illegal content such as child pornography and illegal file-sharing, which raises the question of whether some might look to ISPs to become copyright police - blocking access to material that does not have copyright clearances.  And, with the hearing being held on the same day as a media company purchased a company that can identify copyrighted material by reviewing that content when transmitted on the Internet - is that possibility coming closer to being a reality?

In recent weeks, there have been several trade press reports about government regulation of indecency on the Internet.  I've seen at least two trade press reports on Chairman Martin's testimony before the Commerce Committee, claiming that he said that no government regulation of indecency on the Internet was necessary.  I did not hear any reference to indecency regulation in his testimony (a written version of his statement is available here, and you can watch the entire testimony, here).  Instead, that testimony was about whether Congress needed to pass laws to allow the Commission to enforce its net neutrality principles.  Nonetheless, the press seems to believe that Internet indecency is an issue which might be targeted by regulation.  A recent study finding that the majority of Americans think that FCC regulation of indecency should be extended to the Internet has also been cited in several reports.  However, despite the seeming interest in regulation of the Internet, there are serious constitutional concerns about any such regulation.  In fact, as we wrote here, numerous attempts to regulate indecency on the Internet have been overturned by the Courts on constitutional grounds, as the government could make no showing that the regulations were the least restrictive means for restricting access to adult content.

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The Supreme Court has agreed to hear an appeal by the FCC of the "fleeting expletives" case, where the Second Circuit Court of Appeals threw out the FCC actions fining stations for isolated incidents where a profanity was uttered on the air in a live program.  The cases stem from the Golden Globes and Billboard Music Awards, where over-exuberant winners let slip one of those words that you are not supposed to say on TV.  The Court of Appeals found that the FCC had not justified its departure from prior Commission decisions where such conduct was not sanctioned.  The Court also suggested that the Commission's decisions did not give broadcasters enough guidance as to when the use of such words was permissible, and when it was prohibited.  We have written previously about this case a number of times, including here and here.  Should the Court determine that the FCC was justified in acting as it did, this may leave the FCC open to taking new actions in the indecency area - such as the suggestion that one Commissioner recently made that indecency enforcement in connection with video delivered to mobile phones should be explored.

 A couple of words about some of the commentary written about this case.  First, while many stories have stated that this is the first indecency case to reach the Supreme Court in 30 years since the famous Seven Dirty Words  ( or the Pacifica) case, in fact there have been several other more recent cases that have dealt with the indecency issue - though not in the broadcast context.  Cable and Internet indecency rules have been adopted by the FCC or by Congress, and usually overturned as not constituting the least restrictive manner of preventing children from being exposed to "indecent" speech - speech which is constitutionally protected (as opposed to obscenity which has no protection as it has no socially redeeming significance) - but from which children can be sheltered.  However, in the cable and Internet cases, the regulations have been overturned because there were other less restrictive means of limiting children's access to the content, e.g. through filters or restrictions on access to specific channels or websites.

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This week, after a long period when we saw little in the way of indecency enforcement by the FCC, the Commission issued two orders compelling payment of fines for television programs broadcast in 2003.  The Commission issued a Notice of Apparent Liability (an order proposing a fine) only a few weeks ago asking ABC affiliates to respond to a potential indecency violation in connection with an NYPD Blue episode run in February 2003 (see our description of the proposed fines here and here).  Only a week after the submission of arguments against the proposed fine made by the cited affiliates in a 75 page response to the Notice of Apparent Liability, the FCC issued its order rejecting the arguments against the fines - an unheard of speed in issuing a decision.  Each station involved was fined $27,500.  Then, later in the week, the FCC issued an Order which fined a number of Fox affiliates $7000 each for perceived indecency violations in an episode of the Married By America reality television program, also broadcast in 2003 - following up on a Notice of Apparent Liability issued over two years ago by the FCC.  In one case, an incredibly quick action resulting in a large fine against many stations - in another a smaller fine against far fewer stations.  Why the differences?

The reason for fines coming now was that, in both cases, the 5 year statute of limitations was coming to an end and, if the Commission did not quickly act, it would be precluded from doing so.  In both cases, the Commission determined that it would fine only stations against which complaints were filed.  In the case of Married by America, the Commission had sent a notice of Apparent Liability to 169 stations, but ended up fining only 13 against which actual complaints had been filed.  In contrast, the Commission fined 45 stations for the NYPD Blue episode, even though the "complaints" were in many cases filed months after the program aired on the stations, and even though many of the "complaints" did not even allege that the local viewer had actually seen the program for which the fine was issued.  Instead, many of the complaints were apparently initiated by an on-line campaign urging that the people write the FCC to complain about the program - even if they hadn't necessarily seen it.  In its decision, the Commission concluded that the fines were appropriate - even without specific allegations that the program was watched by the people who complained.

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We recently wrote about the Notice of Apparent Liability for violation of the FCC's indecency rules that was issued last week by the Federal Communications Commission, proposing to fine 52 ABC network affiliates $27,500 each.  This $1.4 million fine was suggested by the FCC for alleged violations which occurred almost 5 years ago in a broadcast of the now canceled television program NYPD Blue.  For those interested in more details of the case, and about the cause of the trouble for these affiliates, our firm, Davis Wright Tremaine, has issued an Advisory to Clients, here providing more background.  Clearly, this notice is not the end of the story - watch for more developments in this case in the coming months, as ABC and the affected stations file their responses to the fines proposed by the FCC.

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This evening, at about the close of business on a Friday evening, the FCC issued a decision on an number of indecency complaints involving a five-year old episode of "NYPD Blue."  The Commission fined approximately fifty or so ABC affiliates in the Central and Mountain time zones $27,500 each for airing indecent material.  Specifically, the Commission found that a scene in the episode aired on February 25, 2003 containing adult female nudity to be indecent.  The Commission rejected ABC's seemingly common sense argument that a woman's buttocks are not "sexual organs" within the definition of the indecency rules.  Instead, the FCC has now determined that showing the backside of a naked woman is a violation of the indecency rules if it airs before 10 PM, as it did in the Central and Mountain time zone.  A copy of the FCC's decision can be found here.  If there is a silver lining it is that the FCC imposed the statutory maximum that existed at the time the programming was aired -- $27,500 -- rather the new, stepped up fines.  Further, the Commission fined only those stations about which it received an actual complaint, and not simply all stations in those time zones that aired the episode. 

The stations have until February 11th to either pay the fine or appeal the forfeiture.  This is an accelerated timeframe for responding or paying the fine, as usually Commission gives stations 30 days to respond to a Notice of Apparent Liability for Forfeiture.  It is unclear what the impetus was for the FCC to finally issue a decision on the "NYPD Blue" complaints nearly five years after the episode originally aired and with several challenges on earlier Commission indecency rulings currently pending before the courts.  No word yet on whether ABC and the affected affiliates will appeal the decision, but it seems likely that this indecency decision will join the others already in the pipeline for judicial review.  And in the meantime, broadcasters have been put on notice that a woman's posterior is now officially indecent material.  No word yet on whether showing a man's rear end is equally problematic, but if there's a station willing to air it and a viewer willing to complain, the FCC will undoubtedly tackle that critical issue if and when it arises.   

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At last Thursday's Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate's positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television - after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We've already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit's decision throwing out the FCC's fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

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This week, legislation was introduced in the House of Representatives to make a single use of an expletive on a broadcast station subject to sanctions from the FCC.  This parallels legislation that was introduced in the Senate this summer, about which we wrote, here.  The point of this legislation is to overturn the decision of the US Court of Appeals for the Second Circuit which held that the FCC could not levy indecency fines on stations for airing a single isolated "fleeting expletive". As we wrote when the Senate Bill was introduced, the Second Circuit decision overturning the FCC's fines was technically based, not on constitutional issues, but instead on the fact that the FCC had not rationally defended the distinctions that it made as to when to impose fines for the use of an expletive, and when to allow the use of the expletives without sanction (as in the airing of Saving Private Ryan).  The Court also faulted the Commission for not providing guidelines as to what was indecent and what was that were clear enough to alert a broadcaster as to what was permitted and what was not.  When a decision is based on an administrative failure to rationally justify its decision, Congress can pass a law providing that justification.  Here, that would give the FCC permission to fine a broadcaster for the use of a single expletive.  If the decision was constitutionally based, finding that the regulation of the use of fleeting expletives was unconstitutional, then the ability of Congress to pass a law permitting FCC action that the Court found was unconstitutional is severely limited.

However, while not basing the decision on constitutional grounds, the Second Circuit decision did go out of its way to question the constitutionality of the FCC's indecency enforcement, but deciding that it did not need to decide the issue of constitutionality as it had already thrown out the FCC fines.  While the Second Circuit passed on that issue, another court may well reach the constitutional question in the near future.  On September 11, the Third Circuit, the same Court which invalidated many of the FCC's 2003 liberalized multiple ownership rules, heard arguments on the FCC's $550,000 fine imposed on the CBS owned-and-operated television stations for the Janet Jackson breast-baring Super Bowl incident.   CBS, represented by an attorney from our firm, argued that the FCC's indecency rules are unconstitutional.  The Court seemed engaged in the issue, according to press reports, asking many questions.  As the briefs have been filed and the arguments made, the Court decision could come at any time.  Sometimes these decisions can be released quickly, though at other times the final decision can take many months to be written.  Broadcasters will have to wait for this further clarification.

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Last month, we wrote about the US Court of Appeals throwing out the FCC’s decision to issue fines to broadcasters for the use of an occasional “fleeting expletive,” i.e. one of those impolite words that once in a while will slip onto a broadcast station’s airwaves, most usually in a live and unscripted program. The Court looked at the FCC’s decisions in this area and determined that they were inconsistent and did not provide the guidance that a broadcaster needs to determine what is and what is not permitted on the airwaves. Thus, the fines were thrown out as the Court found the FCC's decisions to be arbitrary and capricious.  In an attempt to reinstate the FCC’s authority to regulate in this area, Senator Sam Brownback of Kansas, the author of the legislation which raised potential broadcast fines to $325,000 per violation of the indecency policy, last month suggested that he would introduce legislation that would overturn the Court action.  That proposal was preempted by Senate Commerce Committee, which earlier this month approved a bill introduced by Senator Rockefeller which would, very simply, state that the FCC had the jurisdiction to fine stations for a single word or phrase that they broadcast.  While the bill was approved by the Committee, the full Senate and the House of Representatives would need to approve the legislation before it could become law.

The proposal to give the authority back to the FCC to fine a station for an isolated utterance  is possible in theory, as the Court decision was based on the lack of consistency, clarity and guidance that the FCC provided to broadcasters about its standards, and not based on constitutional grounds.  However, reading the Court decision, one can see that the Court went out of its way to question the constitutional basis of the FCC regulation in this area. See our summary of the decision, here and here. A piece of Congressional legislation can reverse a Court ruling which was based on statutory interpretation, but it cannot reverse a decision that is based on a finding that a government action is unconstitutional. A constitutional amendment - which is obviously very rare -  is necessary for that.

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This article is no longer available. For more information on this topic, see  Third Circuit Reaffirms Rejection of FCC's "Fleeting Images" Policy, Reverses Super Bowl Fine 

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We wrote yesterday about the Second Circuit Court of Appeals ruling throwing out two FCC indecency fines.  Further details on the legal reasoning in that decision are given in our firm's advisory published today. The decision also provoked heated reactions from two of the FCC Commissioners.  Commissioner Copps issued a statement warning broadcasters not to engage in gratuitous sex and violence on television.  Chairman Martin's statement was even more aggressive - using the "F-word" and the "S-word" freely - without resorting to the euphemisms that we employ here to avoid triggering spam blockers - for the shock value to emphasize how he believed that a liberal court overlooked the what he thought was a common-sense FCC decision with which most people would agree.

 It seems unlikely that there were many broadcasters waiting for this decision to give them the green light to run out and start gratuitously airing sex and violence.  Look at basic cable.  Years ago, court rulings held that indecency rules did not apply to cable television.  Yet, as I'm writing this, the Daily Show on Comedy Central is airing, and all the explicatives that are of such concern to the Commission are edited out of the program - and this is for a program that is not only on cable, but also is airing at 11 PM, in the safe harbor where indecent programming can air even on broadcast television.  And who has seen a rush of indecent programming on broadcast television in those safe harbor hours?  The Court decision only reached the common sense decision that the passing use of an explicative should not jeopardize an FCC license.  No matter what the Commissioners statements may say, the ruling was not one that opens the door to filth flooding the airwaves, but instead it was only one that demanded that the FCC apply logic and consistency in line with constitutional requirements when making its rulings. 

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Just as the FCC issued its order to implement the statutory increase in the amount of indecency fines, raising them to $325,000 per violation (see our comment, here), its enforcement of its indecency policy may be dead in its tracks.  A three judge panel of the US Court of Appeals for the Second Circuit, in a 2 to 1 decision released today, rejected the FCC's actions against a number of television networks for broadcast indecency.  The FCC actions were in the context of "fleeting utterances," i.e. the use of specific words that the FCC determined were indecent whenever they were used.  The Court rejected the FCC decision as being arbitrary and capricious, as the FCC decisions overturned without sufficient rational explanation years of FCC precedent that had had held that the isolated use of these words was not actionable.  The FCC actions were sent back to the FCC for further consideration to see if the Commission could craft a decision that provided a rational explanation for this departure from precedent.

However, this may prove to be impossible.  While the Court's decision was based on the FCC's failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions.  The Court pointed to the inconsistent decisions of the FCC - fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS'  The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS' morning show.  In the Survivor case, the Court indicated particular confusion, as the Commission went out of its way to say that there was no blanket exclusion of news programming from the application of its indecency rules, but then it proceeded to find the softest of news - the Survivor cast-away interview - as being of sufficient importance to merit exclusion from any fine.  The Court felt that these decisions were so conflicting that a licensee would not be able to decide whether a use was permissible or not - and that such confusion, leaving so much arbitrary discretion in the hands of government decision-makers as to where to draw lines between the permissible and impermissible, would not withstand constitutional scrutiny.  It would have a chilling effect on free speech - and could be enforced in an arbitrary manner that could favor one point of view over another.

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It's been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them - until today.  Today, the FCC issued an order adopting a rule to implement the statutory mandate - and the new higher fines will go into effect 30 days after this order is published in the Federal Register, which will presumably be quite soon.

There was no explanation for the Commission's delay in adopting the new rule.  As the change was mandated by statute, the adoption of the new rule did not require public notice and comment.  All the Commission needed to do was to put out the Order that was released today.  Perhaps the Commission was concerned about the pending Court cases to resolve whether their enforcement of the rules is constitutional (see our comment here).  In fact, in opposing the expedited consideration of one of the appeals of a Commission indecency fine, the Commission specifically made the point that there was no need to for prompt consideration as the chilling effect of the Commission policies was limited as the new fines had not yet gone in to effect.  But, for whatever reason, the Commission has finally decided to act, and the new fines will soon be effective.  Now we just need to watch for the Court decisions to see if the enforcement of those fines will be permitted.

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The front page of the Sunday New York Times featured a story titled "Shock Radio Shrugs at Imus's Fall And Roughs Up the Usual Victims."  The story reports on radio station talk programming and how the Times' reporters found numerous instances of what they refer to as "coarse, sexually explicit banter" and "meanness."  The Times reports that these programs could lead the announcers and the stations owners into dangerous territory - either from FCC fines or through advertiser cancellations.  The Times also correctly indicates that the FCC usually does not initiate actions against such programs based on its own monitoring, but instead based on listener complaints - almost an open invitation for such complaints to be filed based on the paper's report.  With reports such as this hitting the popular press, after being brought to the forefront of public attention by the Imus affair, and earlier this year by the Sacramento contest gone wrong for the the Wii (here), can calls for regulation be far behind?

The Times own report asks the question as to whether the FCC or Congress will step up regulation in light of the Imus affair.  Interestingly, it avoids the questions raised by its own reports as to where lines would be drawn in any regulations.  For instance, in the story, the Times identified some programming that might cause concern under FCC indecency guidelines depending on the context in which the cited material was used, the report also cites several instances which assuredly do not fit within any FCC prohibitions.  In fact, some of the samples cited by the article do not seem much more "coarse" than what you might find on some Sunday morning or cable television news-talk programming.  For instance, the Times cites, seemingly as an example of "crude remarks," statements made on the Mancow syndicated radio talk programming, where Mancow allegedly asserted that radical Muslims "would not stop until they had flattened American religion like a steamroller" and then went on to say that he didn't want his children to be killed or "brainwashed" into Islamic beliefs.  While I'm sure that the Mancow language was not the same as that which might be used on a political talk program - aren't similar expressions about the goals of radical Islam often aired on such news talk programs - often by members of the political establishment?  Would the Times want to regulate the discussion of ideas based on how or where they were expressed?  In any content regulation, lines are hard to draw.

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This article is no longer available. For more information on this topic, see A Summary of Privacy Issues for Broadcasters and Other Media Companies - A Presentation to the Texas Association of Broadcasters 

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In recent weeks, the FCC has been vigorously defending its indecency rules in Court.  First, oral arguments on the FCC's actions against Fox and NBC for "fleeting utterances," one-time unscripted airing of profanities during television coverage of live award programs, were held the week before Christmas - with a decision possible in the upcoming months.  At the same time, briefs are being filed in the case involving Janet Jackson and the Super Bowl clothing malfunctions.  But, with more and more video moving on-line, where the FCC's indecency rules don't reach, who is the FCC really protecting?

A recent article in the New York Times (subscription required for full archived content) reported on NBC's Saturday Night Live posting on the Internet an unedited copy of a partially censored animated feature that aired on its program.  If viewers can access complete, unedited content of a television program online, and that online content can be promoted on the air, unless there is some great expansion of the FCC's power in regulating on-line activity, it seems that the FCC's indecency crackdown doesn't accomplish much.  But, with the pending court actions, it may well be that the FCC's ability to regulate indecency shrinks before it increases.

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While you may not be able to say the "F-word" on broadcast TV, you can on cable TV.  And apparently they will - as the Court of Appeals has agreed to televise the oral arguments on the appeals of the FCC fines levied against Fox for broadcast of the Billboard Music Awards and NBC for its airing of the Golden Globes.  Both of these fines arose because the broadcasts featured one of those words that you're not supposed to say on TV.  The Court granted permission for C-Span to broadcast next week's oral arguments in these cases.

However, broadcast TV seems, so far, unwilling to take the risk.  According to a Broadcasting and Cable report, no broadcast network has asked C-Span for the rights to rebroadcast their coverage.  Perhaps, until these decisions are released, the broadcasters fear that a Court of Appeals oral argument will somehow be mistaken by the FCC for something that "describes or depicts sexual or excretory functions."  As one who has participated in Court of Appeals arguments, that mistake would seem highly unlikely, but the FCC's policy seems to fine first and ask questions later.  So, with the concern of FCC action restraining the broadcast networks, the 15% of the country without access to cable or satellite television in their homes will be safe from exposure to this potentially profane court argument. 

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On Monday night's episode of NBC's Studio 60 on the Sunset Strip, that program's viewers were treated to a subplot about an FCC investigation into indecency on the fictional television network featured in the program. And these viewers were treated to a portrayal of the FCC as an all powerful agency, able to not only issue fines, but also pull "transponder licenses" and stop Asian casino acquisitions by the network's parent company simply because of the inadvertent use of the "F word" in a live newscast.  Chairman Martin probably wishes that he has as much power as the fictional FCC had on the program.

Perhaps a communications lawyer shouldn't get concerned about the dramatic license taken by a TV show.  But the program provided such a distorted view of the FCC process that it could even encourage those interested in making trouble for broadcast licensees to file more complaints with the FCC, thinking that the FCC is so powerful.  In fact, the FCC's power, and its precedent, are nothing like those portrayed on the show. 

Obviously, the FCC's powers don't extend to casino acquisitions outside the United States (or for that matter in the United States).  Nor will the FCC pull a satellite transponder license for a broadcast indecency matter - the FCC has never pulled any license for indecency violations, and has thus far shown no inclination to do so (and even had the FCC had been so inclined, it would take years of litigation).  Even the proposed fine level - $350,000 for each of the network's affiliates - while recently authorized by Congress, has never been levied by the FCC. 

 

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In our posting of July 17, we asked whether President Bush's comments to Tony Blair at the G-8 summit, which had occurred earlier that day, could get broadcasters who aired the unedited version into trouble under the Commission's indecency policies.  Well, it looks like the President may have indeed found a unique way to raise government revenue.  Press reports yesterday reported that  complaints were filed with the FCC asking that fines be imposed on stations that aired the President's comments without bleeping the "S-word."  Specifically, at least one complaint named a Maine television station airing the unedited comments, while another complaint was registered by the FCC about NPR's coverage of the event.

While unedited coverage of a news event had, in the past, in more tempered times, been found by the FCC to be permissible if the station felt that it was necessary to convey the context of the story (for instance, in the case of coverage of a mobster using some colorful language about the prosecution's case as he emerged from a courthouse).  But these days, with the recent FCC crackdown on even fleeting uses of expletives, stations are unsure of the law, and frightened of FCC actions.  And, with recently legislated higher indecency fines, which we reported on on June 16, the fears take on even more urgency for broadcasters.

For instance, CBS plans to air a documentary on 9-11, which includes footage of the reactions of emergency personnel at the site of the collapsing World Trade Center.  The reactions to the tragic events include some use of FCC-prohibited expletives.  This documentary has already aired twice on CBS without any adverse action.  Yet now, certain groups have reportedly suggested that complaints should be filed at the FCC about the upcoming airing of the program.  And now, reports state that at least one broadcaster has announced that they will delay the program until after 10 PM - in the FCC's "safe-harbor" where adult content will not be subject to FCC penalties as the potential for children in the audience is less.

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An article in Saturday's NY Times once again highlights the broadcaster's dilemma in deciding what can and cannot be said on over-the-air without triggering the wrath of the FCC for broadcast indecency.  The article also highlights the self-censorship that broadcasters are engaged in to avoid even the potential of the $325,000 fines that Congress has recently authorized the FCC to impose in cases where a violation of the Commission's standards are found.

The Times article talks about the issues now facing PBS in connection with a new documentary being produced by award-winning film maker Ken Burns.  Mr. Burns' new multi-part documentary is about World War II, and he has interviewed veterans about their experiences in the war.  As might be expected, some of those interviews contain words that the FCC has determined to be actionably indecent whenever they are used on broadcast television.  Thus, according to the article, new PBS guidelines would call not only for deletion of the words but, perhaps based on concerns about recent FCC interpretations that have fined stations based on implications of indecent actions even where the actions may not have been shown, pixilation of the mouths of the veterans so that the TV audience cannot lip-read to determine what words were being used.

To some, this legal advice may seem extreme, but with the FCC guidelines and precedent as confusing as it is, and the stakes so high with the new level of potential fines, perhaps this very conservative advice is all that can be given.  Some may look at the proposed documentary as essentially identical to the airing of Saving Private Ryan, where the FCC held that the use of these otherwise prohibited words was permissible given the serious nature of the programming and the need to portray the soldiers in a realistic setting.  So you would think that a documentary on exactly the same subject, dealing with the topics depicted in the movie, would be entitled to the same treatment.  One would think - but then we have the case of PBS' airing of The Blues, a serious documentary about blues singers which used some of the prohibited words to convey the realism of  of the blues musicians being portrayed.  The significant difference, and the reason for broadcasters' concerns is that, unlike Private Ryan, The Blues drew a fine from the FCC for the use of the words.  Our memo of April 2006 discusses some of these issues.

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Today, many broadcast stations covered the comments that President Bush made to British Prime Minister Tony Blair at the G-8 Summit.  While discussing the Middle East before a microphone that the President did not realize was live, he used the "S Word" in discussing the problems in that part of the world.  As the FCC recently declared the "S Word" to be one of those words that will subject a broadcast station to a fine except in very rare circumstances where the context and importance of the broadcast demands its use (like Saving Private Ryan, but not a PBS documentary on the blues), will the President have presented the FCC with the first case where it can impose the new $325,000 fines for indecency that he himself signed into law less than a month ago?  Perhaps it's a one-man government revenue enhancement plan!  Stay tuned for what might be a very interesting case.

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This article is no longer available. For more information on this topic, see  What is a Broadcaster to Do?

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This article is no longer available. For more information on this topic, see  What is a Broadcaster to Do? 

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