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.