FCC Record Indecency Fines Criticized as Not Setting Clear Precedents

FCC notices unveiling the record-setting fines departed from previous policy. NBC Telemundo’s KWHY-TV L.A. (Ch. 22, independent) was the only station fined $32,500 for an Oct. 9, 2004 broadcast of Spanish-language movie Con El Corazon En La Mano. But the Commission said other stations may have aired the program, which it described as containing an “explicit and graphic” rape scene. “Although other stations may have broadcast the material at issue here between 6 a.m. and 10 p.m., we propose a forfeiture against only the licensee and station whose broadcast of the material was actually the subject of a viewer complaint,” said the notice of apparent liability: “We recognize that this approach differs from that taken in previous Commission decisions involving the broadcast of apparently indecent programming.”

The Commission didn’t draw a hard and fast line at situations involving profanity. The “s-word” can be considered “both indecent and profane,” said the FCC: “We also note, however, that in rare cases, language that is presumptively profane will not be found to be profane where it is demonstrably essential to the nature of an artistic or educational work or essential to information viewers on a matter of public importance.” That didn’t stop the Commission from fining nonprofit station KCSM-TV San Mateo- San Francisco for airing a PBS series on jazz that contained swear words. That finding on The Blues: Godfathers and Sons caused Comr. Adelstein to dissent in part from the orders. “It is clear from a common sense viewing of the program that coarse language is part of the culture of the individuals being portrayed,” he said in a statement: “I am concerned that today’s order overreaches with its expansion of the scope of indecency and profanity law, without first doing what is necessary to determine the appropriate community standard.”

The fines’ upshot is uncertainty for programmers, said industry sources. The order said it hoped to clear up confusion: “Broadcasters have sought guidance from the Commission about our rules, arguing that they lack certainty… The decisions we issue today respond” to that concern and viewer complaints, it said. It’s still unclear what programming is okay and what may cross the line, said industry sources.

“I think a lot of broadcasters may very well scratch their head,” said Womble Carlyle’s Peter Guttman, who used to work in broadcasting: “Programmers I think are becoming far more aware of the sensitivity of possibly crossing the line and possibly generating a complaint.” The fact that “shit” can’t generally be used but euphemisms for it are okay highlights uncertainty, said the Progress & Freedom Foundation’s Adam Thierer. The FCC isn’t “providing broadcasters with the clarity they need to make programming decisions,” he said. “This is going to tee up what is ultimately going to be a historic First Amendment decision” by a court, perhaps the Supreme Court, he said.

The Janet Jackson incident is “ripe” for a legal challenge, said an industry official. CBS could decide not to pay the $550,000 fine, giving DoJ the right to take it U.S. district court, said industry sources. The broadcaster could pay that amount and seek a review of the case by the U.S. Appeals Court, D.C., they said. Six other programs, including 2 in Spanish, generated $355,000 in fines. More than 100 stations were fined for airing a Dec. 31, 2004, episode of CBS’s Without a Trace. The show contained “pandering, titillating and shocking” scenes that depicted sex between teens, said the FCC.

“We will continue to pursue all remedies necessary to affirm out legal rights,” said a CBS statement. An NBC statement said “if the FCC adheres to its ruling, we intend to challenge it in court.” Officials at the companies declined comment on specific legal remedies that might be sought. Sources said plans haven’t yet been set.