The FCC set a new record for a fine for a single violation of its indecency rules – $325,000 for a 3 second visual image of a penis run in a corner of a TV screen a single time on a TV station during its 6 PM news (a full description of the image is in the FCC’s Notice of Apparent Liability but, so as to not trigger too many spam filters, I will omit any more details in this article). The image in the newscast was a visual of a website, the website having several different frames, each with video images, and one of those frames had the image that led to the fine. This is the first time that the FCC has imposed a fine of $325,000, an amount authorized by Congress during the FCC’s last crackdown on indecency but never before used by the FCC. And not only did the FCC issue the Notice of Apparent Liability describing its legal reasoning for imposing the fine, but they also put out a press release publicizing the Notice, highlighting other recent indecency actions taken by the FCC, and warning broadcasters to pay attention to the decision. What happened here?

According to the FCC’s order, a TV station did a story on a former adult movie star who had retired from her former profession and begun to work with the local rescue squad. In providing background to what might otherwise be an off-beat human interest story about a person with a colorful past adapting to a new life as part of a local community, to provide context, the station showed the website of the adult movie company for which she had formerly worked. In editing the brief clip of the website into the story, neither the independent producer who put the story together nor anyone at the station noted the visual in one corner of the webpage with the image that got the station into trouble. According to the station, the image was not viewable on the editing machines used by those producing the story. But, apparently viewers at home, perhaps watching on bigger screens, were able to see the image, prompting the FCC complaint and other complaints to the station. While the image appeared on screen for only about 3 seconds, and only once, the FCC nevertheless selected this case to be its first in which to levy this new level of indecency fine – ten times higher than previous fines for a single broadcast of indecent material on a single station. Why?

First, the FCC looked at the image at issue and determined that this was a case that nicely fit within its definition of indecency. To be indecent under the FCC rules, the Commission will assess whether broadcast material depicts or describes sexual or excretory organs or activities in a manner that “is patently offensive.” In making that decision, the FCC has said that “the full context in which the material appeared is critically important.” That context is determined by looking at three principal factors: (1) the explicitness or graphic nature of the description or depiction; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience. While the image in question was no doubt explicit, and probably shocking to some in the audience, the FCC had to explain how the case fit into the second criteria, given that the image was on screen for only 3 seconds. The Commission noted that it balances and weighs these three factors and, in this case, the material was so offensive and graphic, that it was on screen long enough to be noticed, and that the factors therefore dictated a determination that this broadcast was indecent.

But why the heavy fine on something that was likely a mistake by the broadcaster? Clearly, it was to send a message. The FCC repeatedly noted that this broadcast was during the 6 PM news, at an hour that children were likely to be watching. Where the station decided to make a story about an adult film actor, and to illustrate it with material from an adult website, the Commission stated that it felt that the broadcaster should have exercised more care in reviewing the material for broadcast. Basically, the Commission seems to be saying that if you are playing with fire, don’t complain if you get burnt.

But there will still no doubt be questions should the broadcaster decide to contest the Notice of Apparent Liability. Did the FCC really need to come down this hard on a very reputable broadcaster whose TV station obviously made a mistake? There is no question that the station should have been more careful in its editing, and the FCC wanted to warn other stations not to make the same mistake. But was a $325,000 fine necessary to make that point? This is not a situation where a station was repeatedly airing nasty material in a blatant attempt to push the limits to get ratings (like some morning radio shows with which the FCC has had problems in the past). Instead, it was one story that was run by a TV station, a little risqué perhaps, but certainly not over the line (but for the image in question). The Commission noted the fact that the station was ultimately owned by Schurz Communications, a significant company with multiple broadcast and newspaper interests, seemingly to conclude that the amount of the fine was necessary to make an impact on a big company. But for a well-respected company like this, wouldn’t almost any size fine and the publicity from this decision have had the same impact?

And what about the fact that the FCC’s own rules are currently under review? The FCC itself is trying to decide how to deal with fleeting expletives and images after the Supreme Court determined that its prior enforcement of its indecency policy did not give sufficient notice to the broadcaster of what was prohibited and what was permitted. In the Notice which began its review of its indecency policy (which we wrote about here, here and here), the FCC says that its indecency policy is constitutional and that the broadcaster should have known that this material was prohibited. It also notes that its request for comment on how to enforce the policy for fleeting images and expletives, and whether to only enforce the policy in egregious cases, came out after the conduct in question here (though the Supreme Court’s decision was before the conduct).

Yet these are all questions that will no doubt be argued in many quarters over the next few months. Watch as the argument develops – but also exercise caution as, once the FCC has pulled out this big cannon in its arsenal, it may well look to use it again, so don’t become a target!