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.

In both cases, the FCC rejected arguments that its indecency rules were so vague as to not give enough guidance to broadcasters as to what was permitted and what was forbidden.  Also rejected were claims that the V-Chip was a less intrusive way of keeping children away from programming with adult content.  The Commission concluded that the V-Chip was not widely enough distributed in televisions, or used frequently enough even when it was included in a television set, to conclude that TV was no longer so pervasive and invasive that the government was no longer justified in regulating it.   The Commission also noted that the NYPD Blue episode was not coded by the network as containing sexual material, so a V-Chip would not have blocked the bare butt that formed the basis of the indecency finding.

In both cases, the Commission rejected claims that the affiliates should not be responsible for the content broadcast on the network programming.  The FCC found that the affiliates are responsible for all content that is broadcast on their stations, including network programming.  The Commission implied that the affiliates should be monitoring network broadcasts before the episode airs (a proposal suggested in the FCC’s localism proceeding – see our summary here) and, in the case of Married By America, where the Commission perceived an on-going emphasis on indecent sexual activity, the affiliates certainly should have taken action after the first few minutes of the program (though what they would have then aired at that point was unclear).

In the rush to decide the NYPD Blue case before the statute of limitations ended, the FCC gave affiliates only 17 days to respond to the Notice of Apparent Liability, instead of the 30 days usually provided.  The Commission concluded that the rules did not require a 30 day response period, and that the affiliates were not prejudiced by the shorter response period – given that they were able to file a 70-plus page response.

In the Married by America, the FCC actually stated that they thought that the fine that they issued was too low given the nature of the programming (a entire program segment focusing on bachelor and bachelorette parties, with strippers who were deliberately sent to entice the participants into relationships) was so meant to be pandering, shocking or titillating that the fines should have been higher.  However, given the approaching statute of limitations, the Commission concluded that there was not enough time to propose higher fines.

These fines are unlikely to be the end of either case.  In the NYPD Blue case, ABC has already paid the fine, and filed an appeal seeking a refund, arguing that the fine was not legal or justified ( to challenge a fine, a licensee can pay the fine and appeal, or not pay the fine and wait for the Department of Justice to file suit to collect the fee).  We would expect that the Fox case will also see further consideration – and we are still waiting for a Court decision in the Janet Jackson clothing-malfunction case (summary here), and possible Supreme Court consideration of the fleeting expletive cases where the Court of Appeals threw out FCC fines (our summary here).  So indecency will likely be on the FCC agenda for some time to come.