Liberman Broadcasting, Paying $110,000, Settles Indecency Probe in Rare FCC Action

It appears the last time the FCC took any action on indecency was 2010, when the bureau proposed a $25,000 fine against Fox Television Stations, now part of 21st Century Fox, for not responding to a bureau notice of inquiry (http://bit.ly/1e8CFTg) on complaints about an episode of American Dad (CD June 4 p10/10), said Crigler. He cited the bureau’s website, which we also reviewed. The commission over the years has taken few if any actions against broadcasters for airing allegedly indecent programming in a language other than English, said Crigler and public interest lawyer Andrew Schwartzman. Both unaffiliated in this case, they have represented others opposing FCC indecency enforcement.

Liberman had “consistently maintained that the broadcasts did not violate the Indecency Laws,” said the consent decree (http://fcc.us/1igQT78). “The Bureau disagrees. Liberman also points out that, as of August 8, 2012, it ceased airing Jose Luis, and explains that it has otherwise revised its programming line-up and no longer produces a program similar to Jose Luis.” The show, also called Jose Luis Sin Censura or Jose Luis Uncensored, had seen advertisers flee after complaints were made in 2011 from GLAAD, the National Hispanic Media Coalition (NHMC) and others (CD June 3/11 p10). A Liberman spokesman declined to comment for this story.

"Notwithstanding any of Licensee’s prior submissions in this proceeding, Licensee admits, solely for the purpose of this Consent Decree and for Commission civil enforcement purposes” that “its actions with respect to the broadcast of certain portions of certain episodes of Jose Luis ... inadvertently violated the Commission’s interpretation of its indecency regulations and requirements in force at the time of such actions, assuming construction of those regulations and requirements as Licensee has been informed they are construed by the FCC” now, said the decree. It noted earlier that Liberman “with certain exceptions” admitted it broadcast the programming at issue. A complaint to the FCC from what also was called the Gay & Lesbian Alliance Against Defamation and NHMC said Jose Luis often had uncensored cursing. It also had “minimally edited video depictions of couples engaging in sexual intercourse” and “minimally edited and unedited instances of nudity including views of female breasts, genitalia, and buttocks presented in an overtly sexual manner,” said the complaint (http://bit.ly/1btgrHP). It also cited slurs against those with sexual orientations other than heterosexual and of immigrants.

The FCC received 79 indecency complaints about Jose Luis as of November 2010, said GLAAD and NHMC’s complaint (CD March 1/11 p18), citing a Freedom of Information Act request. The show aired on Liberman stations in California, Texas and Utah, said an FCC news release Thursday night (http://fcc.us/17YcAHk). Allegations included that the show “on several occasions featured pornographic film performers and exotic dancers who engaged in behavior inconsistent with the Commission’s indecency standards for broadcast programming that is aired during the day and early evening,” said the FCC. It said Liberman, which discontinued broadcasting the show in August 2012, “fully cooperated” with the bureau’s investigation. The company will make the voluntary contribution as part of the settlement in eight quarterly installments of $13,750.

GLAAD finds what was on the show “inappropriate for any audience, in English or Spanish,” said Monica Trasandes, director of Spanish-language media for the organization, in an interview Friday. “It is content that would not be allowed in the English language,” said Trasandes, who works to have accurate news and entertainment representations of those who aren’t heterosexual. The types of “anti-gay slurs, using anti-transgender, anti-female” and other language on Jose Luis can increase violence against such populations, she said.

The settlement comes after “non-English language programming has tended to escape FCC purview to a considerable degree,” said Schwartzman. “This stuff was really egregious,” he said of the language allegedly broadcast by Liberman, which he compared to a “Spanish-language version of the Seven Dirty Words” curses by comedian George Carlin in which the Supreme Court upheld the FCC’s indecency enforcement. That was “in addition to being homophobic and other things which are upsetting but not actionable indecency,” said Schwartzman of Jose Luis. “I'm unhappy that the FCC has indecency policies ... but whatever they are,” this complaint appears to be “one of the few relatively rare instances where it was over a clear line,” he said. “I think the FCC thought they had a case they could act on.”

If the curses on Jose Luis had been in English and would be actionable by the FCC in that context, then “they should carry the same weight” when in Spanish if the programming targets those who speak that language, said NHMC Policy Director Michael Scurato. The profanity and curse words in Spanish were spoken repeatedly on the show “and it wasn’t just a few curse words that weren’t bleeped,” he said. “Most of the time, there was absolutely no care given to these words,” he said. Women’s buttocks and other body parts often weren’t obscured or barely obscured, said Scurato, whose group recently asked the FCC to block the licensee renewal of Clear Channel’s KFI(AM) Los Angeles for airing what NHMC called hate speech against immigrants (CD Nov 4 p18).

Liberman’s settlement has limited import for other broadcasters seeking guidance about what’s indecent and what’s not, said Crigler. “They are of no precedential value to anybody, except I guess for the licensee who can say this resolved the matter.” Often consent decrees are “buying ... time” for a station that sees it as an “impediment to a sale,” said Crigler. “The consent decree is probably less a gauge of whether Liberman could prevail on the merits than it is a gauge of Liberman wanting to get rid of this thing, for whatever reason.”