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.

No one wants the FCC to act as a censor – reviewing each and every program before it’s aired to decide if it meets the some national standard.  But no broadcaster wants to take the risk of being put out of business by a $325,000 fine.  Without clearer standards from the FCC or guidance on these issues from the Courts, who are currently considering some of these issues, we will no doubt see more and more instances of broadcasters engaging in this kind of seemingly unnecessary self-censorship of meritorious programs.  The stakes are too high for most broadcasters to take the risk.