Indecency

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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.Continue Reading Radio Shock Jocks in the News – Calls for Regulation to Follow?

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…

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…

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. 

Continue Reading Everything I Know I Did Not Learn on TV

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. Continue Reading George Bush, 9-11 and Potential Big Fines

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.Continue Reading What is a Broadcaster to Do?

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…