Broadcast Network, Affiliate Indecency Differences May Again Be Shown in FCC Comments

More pervasive differences appear to exist between some broadcast-TV networks, which oppose most any FCC indecency enforcement, and owners of independent stations affiliated with some of the Big Four networks, which support restrained enforcement, our survey found. Some of the differences, over whether the 1978 Supreme Court Pacifica decision upholding the agency’s authority to guard against cursing, were on display in briefs in 2011 (http://bit.ly/10Fzjyq) in the last broadcast indecency case to reach the high court. Some lawyers representing TV stations said such differences may be borne out in comments and replies to the public notice, though they also said there are many areas of overlap on some core issues between various broadcasters. Scott Flick of Pillsbury Winthrop, who plans to file comments for a broadcast client on the public notice, hasn’t heard a “lot of backbiting between the two” on indecency, he said of networks and affiliates. “It’s a mutually beneficial relationship."

In the recent Supreme Court case, some broadcasters wanted Pacifica invalidated because it singled out broadcasters for different First Amendment treatment than all other media, while other broadcast briefs supported more restrained FCC enforcement without throwing out the landmark case. “Pacifica’s foundations were built on sand,” wrote News Corp.’s Fox Television Stations, Comcast’s NBCUniversal, CBS and the FBC Television Affiliates Association (http://bit.ly/1805oWZ). “This Court should now overrule Pacifica, and with it the FCC’s authority to punish broadcast speech.” Unlike in 1978, broadcasting is no longer “uniquely pervasive and uniquely accessible to children,” said Disney’s ABC (http://bit.ly/11CxCs2). The network’s affiliate association said it agreed with the government “that Pacifica need not be overruled to decide this case” (http://bit.ly/16xNNrs). The CBS and NBC affiliate groups said “Pacifica indicates that the First Amendment imposes significant limitations on the government’s authority to punish non-obscene broadcaster speech, including ‘isolated’ expletives and brief nudity that does not constitute ’shock treatment'” (http://bit.ly/12sKVI1).

Networks long have been considered more eager than owners of stations affiliated with ABC, CBS, Fox or NBC but not owned by those networks to air racy content that may garner indecency complaints, industry executives and lawyers said. Affiliates that don’t originate such programming are sometimes less interested in such content, the officials said. Networks “would like to be edgier, with all the non-broadcast content sources” now available to viewers, said Harry Cole of Fletcher Heald. No client has asked him to file comments, he said. “This is probably the first time where the commission has opened up the phone lines for kind of indecency-related input.” The Supreme Court in June dismissed FCC actions against ABC for seven seconds of nudity on NYPD Blue and celebrity cursing on Fox’s Billboard Music Awards, a ruling FCC officials have said buttressed Chairman Julius Genachowski’s policy of not pursuing indecency cases except in cases staff consider egregious.

With Genachowski departing, agency and industry officials said the FCC’s response to the public notice will be a litmus test of whether that “egregious” policy will be encapsulated as such, as it wasn’t previously publicly defined. “It’s exactly the type of a proceeding you see launched in the waning days of a chairmanship,” said Flick. He wondered if the FCC will “really dive into this” and issue guidelines, or take no action. The April 1 release of the public notice wasn’t accompanied by the usual coordination well beforehand among staff in various FCC bureaus and offices, agency officials said. That led some of the officials to speculate that the notice mainly was meant to be a marker of a reduction in backlogged complaints under Genachowski rather than a thoroughly considered attempt to shape policy on future alleged violations of indecency rules. A commission spokesman declined to comment.

Broadcast networks, affiliate groups and other stakeholders are preparing initial comments, so it’s impossible to say how the industry’s differences will play out, industry officials said. The deadline for comments was delayed Friday (http://bit.ly/17r9OIw, CD May 13 p12) by agency staff for another month, to June 19, with replies due July 18. NAB requested (http://bit.ly/YTSKZ1, CD May 2 p11) the delay. The association said it needed “sufficient time to consider the views of our varied membership and to gather additional information about the impacts of specific policies on radio and television stations and networks.” An NAB spokesman declined to comment for this story.

The group won’t be alone among broadcast commenters, our survey found. “Public broadcasting organizations are ... in the process of considering what more we might present to the FCC in response to their notice,” said an Association of Public Television Stations spokeswoman. She pointed us to a PBS Supreme Court brief in docket 10-1293 that said the FCC’s “move to abandon, in most cases, its deference to broadcasters’ judgement flies in the face of the restrained approach required by Pacifica” (http://bit.ly/19pfAXJ). Fox will file initial comments by the deadline, a spokesman said. Other broadcast networks had no comment.

The public notice left a lot to be desired detail-wise, said several broadcast lawyers. They criticized it for not spelling out what Genachowski’s policy is of not pursuing complaints other than those alleging egregious violations, and said the document itself seemed to have been put together in a hurried manner because it focused on both the backlog reduction and request for comment. “The commission’s invitation for comments was so totally opaque, what is anybody going to say,” asked Cole. “It gives no indication of what the commission is proposing to do, what the commission’s current posture really is or anything. So it’s like punching at a marshmallow."

Martin’s approach of censuring even brief instances of nudity or cursing was the right one, said Prather of Gray, who isn’t sure if the company will file comments. “I think it’s going to be important for us for the FCC indecency standards to stay tough,” he said. “I wouldn’t want anything to change” from a ban on fleeting indecency, Prather added. “You can do anything you want pretty much on cable,” he said. “I guess networks just see that as an opportunity they're missing out on."

The Enforcement Bureau and Office of General Counsel shouldn’t have delayed comment deadlines, since almost all comments in docket 13-86 were from individuals supporting indecency enforcement, said President Patrick Trueman of indecency foe Morality in Media. “If the FCC is paying attention, they can plainly see that the public does not want this change” toward the egregious standard, he said. “So now you have the time extended -- so it can’t help the general public that does not want the change.” The delay shows the agency in his estimation will “do whatever the networks want them to do.”