FCC Staff Slash Indecency Backlog by Dismissing Old Complaints
The FCC in recent months reduced by at least two-thirds pending indecency complaints. That was via career staffers’ continuing effort to cut a backlog of objections from TV viewers and radio listeners by dismissing older cases as commissioners made no policy decisions, agency and industry officials said. They said cases with an expired five-year statute of limitations and those made for late-night and very early-morning shows not subject to indecency rules were among those dismissed by Enforcement Bureau staff. They also appear to be dismissing some complaints that might have been held beyond the statute of limitations by voluntary agreements with licensees, yet not actionable because the brief instances of cursing or nudity aired before the commission said in 2004 that such fleeting indecency could result in fines, industry officials said.
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The pace of dismissals drastically picked up steam after the Supreme Court ruling June 21 (http://xrl.us/boaet2) in a case known as Fox II, agency and industry officials said in recent interviews. The 8-0 ruling dismissed on process and not First Amendment grounds fining affiliates of Disney’s ABC for the 2003 airing of seven seconds of nudity on NYPD Blue and censuring News Corp.’s Fox for unscripted celebrity cursing on that year and 2002’s Billboard Music Awards (CD June 22 p1). At the time of Fox II, the backlog was 1.5 million. Within just under six months, the total was whittled down to 500,000, Commissioner Robert McDowell said last month.
The number of programs subject to complaints fell 47 percent during that period to 5,500, McDowell said in a written statement before testifying to a House Communications Subcommittee hearing (http://xrl.us/boaeug). The number of shows subject to at least one complaint, and the number of complaints, likely has been reduced further in recent months, broadcast industry lawyers said. FCC representatives declined to provide an updated figure, so Communications Daily publisher Warren Communications News made a request to the FCC on Friday under the Freedom of Information Act.
Enforcement Bureau staff are cutting the backlog by culling complaints in several ways, agency and industry officials said. They said complaints with an expired statute of limitation or one that’s about to run out have been dismissed as part of the bureau’s push to drastically cut the backlog. Some of the backlog’s been cut against stations that enter into so-called tolling agreements with the bureau so they can renew licenses and/or transfer the properties, broadcast lawyers said. When staff prepare an agreement, where a licensee agrees to extend by a few years the time the FCC can act on complaints, they set aside some pending complaints, said attorneys who represent radio and TV stations including Drinker Biddle’s Howard Liberman.
Most dismissals so far appear not to relate to policy calls, and instead are on process grounds, FCC and industry officials said. They said the upshot is that hard questions about whether to censure a licensee for programming that could potentially be ruled indecent post-Fox II aren’t being made. That left disappointed a supporter of indecency enforcement, Parents Television Council Policy Director Dan Isett. FCC Chairman Julius Genachowski isn’t expected to deal with the issue in his remaining time at the agency, which may end this year if he decides to leave, said Isett and industry lawyers and an executive. “So it will be up to the new chairman to chart the way forward,” said Isett, whose group encourages parents to file complaints. “It has been very clear that Chairman Genachowski has not wanted to deal with the issue, and has gone out of his way not to deal with the issue, much to my dismay."
FCC staff continue pondering how to proceed with such policy calls, agency and industry officials said. Whatever action is taken, it’s still unlikely the agency will update the 2004 Golden Globe Awards order giving general guidance on what could be considered too racy to be broadcast, agency and industry officials predicted. The March 18, 2004, order found a single curse, as U2 frontman Bono uttered on the award show, could be indecent. The commission continues reviewing its enforcement policy, a spokesman said. Since Fox II, the FCC has been “reviewing its indecency enforcement policy to ensure the agency carries out Congress’s directive in a manner consistent with vital First Amendment principles,” Genachowski said in a September written statement a spokesman cited last week. “In the interim, I have directed the Enforcement Bureau to focus its resources on the strongest cases that involve egregious indecency violations. We also will continue to reduce the backlog of pending indecency complaints."
Granting license renewals appears to have taken a back seat at the bureau as some staff focus on dismissing old complaints, an agency official said. Some stations have had renewals of licenses, which have eight-year terms, pending since cycles covering periods including the late 1990s, broadcast lawyers representing stations in such situations said. Even when renewals are granted, having pending complaints regardless of whether they're outside the statute of limitations makes certified public accountants who certify companies’ books nervous, said Garvey Schubert’s John Crigler. “It’s easy to get a CPA confused when you say, `well, there is a complaint sitting there, with a potential liability of $325,000” per instance of indecency, Crigler said. “CPAs don’t like complications” when asked about a licensee’s possible liabilities, he said: “What they want is a yes or no answer” about whether a station faces complaints, not to be told it does but they're too old for the FCC to act upon.
Typical tolling periods now extend for two years, much shorter than agreements enacted several years ago at the FCC under then-Chairman Kevin Martin, broadcast lawyers whose clients have signed the new ones said. Having pending complaints is at least an “annoyance” for a station, Liberman said. “It is a real problem for broadcasters.” It’s “troublesome for communications attorneys when complaints remain pending regarding broadcast material that could never be found to be ‘indecent’ under current Supreme Court precedent,” he said. “Perhaps the Media Bureau can now grant license renewal applications that have been pending for years, and not have to hold up approvals for transactions because of an Enforcement Bureau ‘hold.'”