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.
The violation itself – the unexpected use of the "F-word" during a live report from Afghanistan when a shell exploded near the subject being interviewed – also does not seem to be the type of violation that the FCC would prosecute vigorously. In its recent decision revisiting some of the television indecency cases, the FCC found that the context of the use of an isolated explicative, and the fact that it occurred during a newscast, would mitigate the violation which might otherwise be found. In that case, it was the use of the "S word" in an Early Show conversation with a Survivor castaway, that was found to be newsworthy enough to mitigate a fine. Given that precedent, an isolated explicative in live news coverage, uttered during the heat of a military action, would hardly seem to be the kind of action that the FCC would prosecute to the fullest.
So, the next time a TV show wants to cover the finer points of FCC regulatory issues, I’m ready to offer my advice.