FCC Asks If It Should Stick With Policy of Not Pursuing Fleeting Indecency
The FCC asked if it should stick to what has become an indecency policy of sorts of not fining broadcasters for airing single instances of cursewords or nudity and instead pursuing only what it deems to be more significant cases. A public notice Monday asked whether it should stick with its recent policy of restrained enforcement or instead return to an earlier policy of censuring radio and TV stations for fleeting indecency. The agency has taken the restrained approach under outgoing Chairman Julius Genachowski. FCC officials had said that tack was buttressed by June’s Supreme Court ruling dismissing fines against affiliates of Disney’s ABC for airing in 2003 seven seconds of nudity on NYPD Blue and censuring News Corp.’s Fox for unscripted cursing by Cher and other celebrities on the 2002 and 2003 Billboard Music Awards (CD June 22 p1).
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The agency, meanwhile, released information to us confirming our report (CD Jan 14 p1) that the backlog of indecency complaints had been slashed by about two-thirds in the 52 weeks through Jan. 11. The total number pending had been reduced to 464,740 on Jan. 11 from 1.49 million 52 weeks earlier, said information released Friday night to Communications Daily’s publisher, Warren Communications News. That responded after several delays to the company’s Jan. 11 request for information on the backlog reduction. Other responses Friday to FOIA requests -- about the number of stations that had license renewals put on hold because of pending complaints, the number that tolled the five-year statute of limitations for such complaints to get renewals and the number of staffers working on indecency related matters -- provided no new information. Some of the responses cited exemptions to FOIA allowing the agency to keep those details private.
The commission since Jan. 11 has continued to dismiss older complaints by radio listeners and TV viewers alleging indecent broadcasts when those allegations run up against the five-year statute of limitations, said FCC officials. The number of total complaints was cut almost 70 percent from Sept. 21 to 465,554 complaints on Feb. 25, said an agency spokesman. In late September, Genachowski asked the Enforcement Bureau to focus only on “egregious indecency violations” after the Fox II high-court ruling and the Justice Department that month dropping its case against Fox over an unrelated program depicting bachelor parties featuring strippers. During the five months through Feb. 25, the number of cases dropped 45 percent to 5,538, said the spokesman.
The notice sought comment on whether the full agency should “treat isolated expletives in a manner consistent with our decision in Pacifica Foundation,” a 1987 order that said “deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” The 1978 high-court Pacifica decision said certain swear words could be found indecent. A restrained policy has mostly been the practice of the commission, except during the tenure of Chairmen Michael Powell and Kevin Martin, agency and industry officials have said. Or, the notice asked, “should the Commission instead maintain the approach to isolated expletives” in the 2004 Golden Globe order that found unscripted cursing by Bono was indecent (http://fcc.us/YriVnY). “As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?” the document said. “Commenters are invited to address these issues as well as any other aspect of the Commission’s substantive indecency policies.” Comments are due 30 days after the notice appears in the Federal Register, replies 30 days later, in docket 13-86.
Commercial TV programs generated the most complaints, with programs on commercial FM in second place among all types of broadcast services, showed FCC information released under the FOIA. The number of pending complaints against commercial TV shows fell from 1.48 million on Jan. 11, 2012, to 461,174 exactly a year later. The number of such cases -- which roughly correspond to a particular show but can represent other considerations, according to the FOIA response -- fell from 5,541 to 3,440. Commercial FM complaints fell to 2,474 from 6,317, and the number of cases to 1,533 from 2,680. “We are constantly updating and correcting entries in our database as we eliminate duplicates and process complaints that have previously been received and are waiting in queue to be logged in,” said the FOIA response. The dismissal of more than 1 million complaints since September came “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent,” said the public notice. “The Bureau is also actively investigating egregious indecency cases and will continue to do so."
That backlog reduction isn’t enough for some broadcast lawyers. Stations “get caught in a bind” when their licenses aren’t renewed because of a long-pending complaint, said radio-station lawyer Gregg Skall of Womble Carlyle. It’s “an expensive process for people” to keep tapes of what aired for years “on end” in case a complaint is received that the licensee doesn’t learn of until the license is up for renewal, which happens every eight years, he said. Policy Director Dan Isett of Parents TV Council, which asks members to file indecency complaints, wondered about the 1 million backlog reduction number: “Are we to believe that nearly 7/10 of the backlog of complaints” or about 1 million “were defective complaints,” he asked. “Were none of these dismissed on the merits?”