FCC Indecency Complaint Backlog, Cut At Least 18 Percent in 2013, Doesn’t Resolve Uncertainty

The backlog of pending complaints fell 18 percent from Jan. 11, 2013, to 380,370 Nov. 12. That was the last date the commission disclosed a number, in a Freedom of Information Act response, said an FCC spokesman. When officials wouldn’t release a current figure, Communications Daily made a new FOIA request for it. Backlog cuts continue this year, as staffers are dismissing complaints about broadcast programming not deemed to be actionable, and other shows not subject to indecency rules, said agency officials.

But 249 TV stations are awaiting renewal licenses from a cycle that ended in 2007, while another 702 are awaiting renewals from the current cycle, FCC data show. Broadcasters renew licenses every eight years, with cycles based on type of service and state. The indecency complaint backlog means renewals aren’t granted for stations with pending complaints unless they agree to extend a five-year statute of limitations on enforcement, said industry lawyers. There appears to be “a small but steady stream” of such tolling agreements, though the total is unclear because the agency doesn’t release the numbers, said broadcast lawyer John Crigler of Garvey Schubert, by email after he spoke to an off-the-record FCBA brown bag lunch April 30 on indecency (http://bit.ly/RSDQ3t). The agency has declined to release such information to us under FOIA, citing exemptions including one that allows the agency to keep data confidential if release would impact future tolling agreements.

FCC Chairman Tom Wheeler told advocates against broadcast indecency who met with him twice in the last two months that the backlog needs to be cut further, with complaints that won’t lead to a fine or censure dismissed, said meeting attendees Parents Television Council (PTC) Public Policy Director Dan Isett and Concerned Women for America CEO Penny Nance. “We agree with him,” that the commission has authority to act and should reduce the backlog said Nance, who worked on indecency issues for then-FCC Chairman Kevin Martin last decade. “Under Chairman Martin, it was very clear where there was going to be enforcement.” That’s not the case under Wheeler, and it wasn’t during the tenure of Chairman Julius Genachowski from 2009-2013, said Nance and Isett.

Wheeler said during the private meetings he’s committed to enforcing indecency law, said Isett and Nance. They said he agreed with them that the agency’s 2012 Supreme Court loss (CD June 22/12 p1) over enforcement against Disney’s ABC and 21st Century Fox’s Fox broadcast networks didn’t strip the agency of authority to act. A unanimous high court ruled the commission violated the due process rights of ABC, which aired brief nudity on NYPD Blue, and some affiliates and Fox, for celebrity cursing on the Billboard Music Awards, by not giving them notice that fleeting indecency could lead to enforcement.

Trends

The backlog reached 1.49 million in January 2012, as complaints lingered for years, according to FCC data obtained by a previous Communications Daily FOIA request (http://www.warren-news.com/commdailynews/indecencyFOIA.pdf). That total was little changed from January to June 21, 2012, when the Supreme Court ruled against the FCC on ABC and Fox. Then, agency staff started dismissing old complaints that weren’t considered egregious because they lacked shots dwelling on nudity and did not have multiple curse words.

Total pending complaints tally fell 69 percent from June 21, 2012, to Jan. 11, 2013, according to data given to us under FOIA. That came as the FCC sought public comment (http://fcc.us/1ooKtHR) on whether it should stick with Genachowski’s informal policy of only pursuing cases of egregious indecent content. The current backlog isn’t likely to factor into any future court cases because the judiciary has been far more focused on what the FCC’s policy is and whether there was fair notice before enforcement, Davis Wright appellate lawyer Peter Karanjia, FCC deputy general counsel during Genachowski’s tenure, who also spoke on the FCBA panel, told us separately.

The current average rate of new complaints of a few thousand annually in recent years was a plunge to about one-tenth of 1 percent of the high in 2004, found a Communications Daily analysis of 11 years of quarterly data from the Consumer and Governmental Affairs Bureau (CGB) (http://fcc.us/1lyAmNp). During a 2004 halftime show, Justin Timberlake pulled off Jackson’s bustier to reveal, for a split second, her breast, which resulted in a $550,000 fine to CBS — later thrown out by the 3rd U.S. Circuit Court of Appeals (CD Nov 3/11 p3).

In 2004, a record 1.4 million indecency complaints were received, the most since at least 2002 when CGB first reported such data. What Jackson and Timberlake have called a “wardrobe malfunction” was “a cultural moment” that hasn’t been matched, said Isett of PTC, which has alerted members of fewer instances of indecency for them to complain to the FCC about in recent years. “The numbers of complaints have tended to rise and fall, sometimes dramatically, in response to the organized spam campaigns some of the advocacy groups run,” Davis Wright First Amendment lawyer Robert Corn-Revere, who has defended broadcasters against indecency complaints and also spoke on the FCBA panel, told us. “When not driven by some external campaign to gin up complaints, the number stays pretty low, between 100 and 200 a month.” Complaints averaged 176 monthly 2011-2013, our review of CGB data found.

Disappointment, Uncertainty

Consumers have been dissuaded from filing new complaints because the FCC hasn’t acted on old cases where groups including Concerned Women for America and PTC think broadcasters broke the law, said Isett and Nance. “People kind of don’t think it matters” and “don’t feel like their voices are heard, so at some level they kind of give up,” said Nance. “I certainly wouldn’t equate a lack of filings with lack of concern by the public."

"The FCC can’t be paralyzed -- they've got to move forward on these cases” where content was indecent, said Nance. A new policy statement voted on by commissioners to say what’s considered indecent is unnecessary, and the agency can instead show via enforcement what’s unacceptable, said Nance and Isett.

Consumers feel “ignored” by the FCC, because not since 2006 has it issued a notice of apparent liability (NAL) over a substantive indecency issue, said Isett. Stations owned by CBS and those affiliated with the network got a proposed fine of $32,500 per station for airing depictions of teen orgies on Without a Trace, said a 2006 NAL (http://fcc.us/1gw8g0J).

Industry lawyers said the most recent indecency consent decree was last month (http://bit.ly/1jaWjmL) for $15,000 to KRXA(AM) Carmel Valley, California, over what station General Manager Hal Ginsberg told us was repeated on-air cursing. Consent decrees don’t often describe what allegations led to the settlement. A settlement that drew notice was in November, when Liberman Broadcasting -- in the first such action in years and perhaps first ever against non-English programming -- agreed to pay $110,000 for a since-cancelled Spanish-language talk show that a GLAAD and National Hispanic Media Coalition complaint said featured uncensored cursing and female nudity. The groups also cited slurs against immigrants and those who aren’t heterosexual (CD Nov 18 p9).

Guidance Lacking

Broadcasters usually learn of indecency complaints against them years after they have been lodged, often when applying for license renewals or selling stations, said industry lawyers. KRXA didn’t know for years about an April 2009 show, since discontinued, where the host cursed several times, said Ginsberg. It only was alerted when it sought FCC OK to sell the station, which has a progressive talk radio format, for $300,000 to El Sembrador Ministries. “It was very frustrating,” said Ginsberg, who also found out upon the sale agreement that sponsorship identification wasn’t provided during the show, for which the host bought time to be on-air. “If they had notified me as soon as the complaint was lodged, I would have immediately changed our practice."

"The FCC takes cursing seriously: Don’t let people on your program or on your station who curse,” Ginsberg said was among lessons learned. “I should have been even more careful.” Had the commission told him when a complaint was made, “we could have resolved it without holding up the sale,” which remains pending as the ministry buying KRXA seeks a main-studio location rule waiver, said Ginsberg. “It’s a real problem when a licensee does not learn about a complaint that has resulted in a hold on FCC action until action is needed,” said Womble Carlyle broadcast lawyer Gregg Skall. “Then, the only practical way to deal with it is the tolling agreement.” Skall said he hopes the issue is dealt with in the FCC process review being overseen by Wheeler Special Counsel Diane Cornell.

Wheeler is unlikely to issue an indecency policy statement, at least if he’s like most past chairmen, agreed lawyers who oppose enforcement. “No chairman wants to do anything about this, and the only time they do is when Congress starts getting on their back,” said Andrew Schwartzman, a senior counselor at Georgetown University Law Center’s Institute for Public Representation. “It’s just like a no-win proposition. And when they're finally forced to do something, they take a more aggressive position than they really want to take, and hope that the courts reverse them.”

Indecency foes say it’s time Wheeler acts, and if he doesn’t they say he will face public outcry as he has over proposed net neutrality rules set for a vote Thursday that public interest groups and some Web companies contend are too weak. (See separate report above in this issue.) “Even with these smaller numbers” of indecency complaints, there are hundreds of thousands “that hadn’t been dealt with at all,” said Isett. “Everything moves at a glacial pace” at the FCC, and PTC expects that on indecency, too, he said. “But a glacial pace is not the same as not doing anything.”