FCC Mulling of Indecency Policy Not Likely to Mean Change

Despite the FCC’s notice Monday seeking feedback on indecency enforcement (CD April 2 p1) and the fact that more than a million backlogged complaints had been cleared, industry observers don’t see substantive changes in enforcement policy on the horizon. “There will never be an expansive approach by the FCC to enforcement,” said Howard Liberman, a communications attorney at Drinker Biddle: “They always take a narrow approach on this.” The public notice asked for comment on whether the agency should pursue enforcement against isolated acts of indecency, or focus solely on more significant violations. “Should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?” asked the notice.

Ex-Commissioner Harold Furchtgott-Roth didn’t doubt that the FCC’s new examination of its indecency polices would lead to new ones, but he doubts the agency could come up with standards that would survive court scrutiny, he said. “The commission has tried to do this for a number of years. It’s always been very difficult.” The commission’s current policy came about when Genachowski asked the Enforcement Bureau to focus only on “egregious indecency violations” after the Fox II Supreme Court ruling on FCC enforcement attempts against went against the commission.

Policy Director Dan Isset of Parents Television Council doesn’t believe the public notice will lead to substantive change, based on what he sees as the FCC’s past failures to enforce its indecency policies, he said. “There has been no enforcement of federal decency standards by the FCC.” The FCC’s current policy of pursuing only “egregious” violations is arbitrary, said Isset. The term egregious is “undefined,” said broadcast lawyer Harry Cole of Fletcher Heald in a blog post. “All we know is that, for the past seven months or so and going forward into the foreseeable future, the ‘new’ indecency standard has centered and will center on the essentially undefined concept of ‘egregiousness'” (http://bit.ly/16umGuG).

That the FCC hasn’t recently defined what egregious means makes it hard for radio and TV stations to know what sort of programming might run afoul of indecency rules, agreed several industry lawyers we surveyed. Some continued to express frustration that stations haven’t been able to get licenses renewed because of pending complaints. Three nonprofits that oppose indecent content also weren’t satisfied with the public notice, seeing it as potentially giving the commission an entree to pursue fewer allegations of indecency by adopting more tolerant standards. Since the full commission hasn’t voted on the current egregious standard, Isset and Cole both said it may not be valid. “The chairman doesn’t have the unilateral authority to do this,” said Isset. The same issue also invalidates the call for public comment, he said. “The time to have public comment is before a policy change, not after."

Morality in Media “will fight changes to lower” FCC standards on indecent and profane broadcasts, said a MIM statement Tuesday. The agency’s 70 percent reduction in backlogged complaints in the five months through Feb. 25 “is mostly due to them ignoring complaints and waiting until too much time had passed,” said the group. Concerned Women for America “has no problem with the Enforcement Bureau cleaning up complaints that clearly don’t meet the standard for indecency,” CEO Penny Nance, an adviser to then-FCC Chairman Kevin Martin on indecency, told us. “However, we find it very disappointing that the FCC refuses to do its job and enforce the law.” It’s “essential” that the next chairman “is willing to do his job,” said Nance.

Those seeking a definition of the egregious standard could look to the commission’s 2001 policy statement on indecency, said an FCC spokesman who pointed to it as a potential example. In that statement, egregious misconduct is defined as a repeat violation of decency standards. “If the Commission previously determined that the broadcast of the same material was indecent, the subsequent broadcast constitutes egregious misconduct and a higher forfeiture amount is warranted,” said the document’s only use of the word (http://bit.ly/YR8yt9).

That each TV program facing an indecency allegation has led to an average of a hundred-plus individual viewer complaints, while allegedly indecent radio programs garner “only a few” listener complaints each worries Peter Gutmann of Womble Carlyle, who has broadcaster clients. He cited figures from an FCC response to a Freedom of Information Act request by Communications Daily’s publisher, Warren Communications News. “For maximum impact, staff resources are likely to be prioritized to dealing with the TV cases,” said Gutmann. “That, in turn, would bode ill for radio licensees whose renewals or assignments remain in limbo pending resolution of pending complaints.”

To get guidance for broadcasters, “it would be nice to understand what ‘egregious’ means” on indecency, said Gutmann. That’s “especially if the FCC doesn’t plan to issue a broad policy statement and plans instead to rely on case-by-case examples of what it is prepared to tolerate in this area,” he said. “If the staff is again willing to overlook inadvertent, fleeting lapses, that would be good to know. So far, though, it appears that the staff has applied procedural standards (statutory bars; safe harbor) rather than substantive criteria to determine which cases to dismiss in lieu of issuing reasoned decisions."

Commercial FM stations had the second highest number of pending indecency complaints as of Jan. 11, after commercial TV stations which were No. 1 in the complaint rankings. Commercial FM had 2,474 complaints filed in 1,533 “cases” -- or less than two complaints on average associated with each case, the FOIA-produced documents showed (http://www.warren-news.com/commdailynews/indecencyFOIA.pdf). Commercial TV stations had 3,440 cases encapsulating 461,174 complaints, or 134 complaints on average per case. “Some ‘cases’ may represent multiple episodes of the same series, while other cases focus on one episode that prompted numerous complaints, and other cases may represent individual broadcasts of a particular program, series, or episode,” said an FCC response Friday to our FOIA request made Jan. 11. It was one of a series of three requests made that month and in February that the agency responded to after several delays.

There are some who believe the request for feedback is a genuine attempt to set policy rather than to later take no across-the-board action or to further put off the day that happens. Pillsbury Winthrop broadcast lawyer Scott Flick said the timing of the announcement was to the agency’s advantage. The process to move “forward will likely be complex and arduous, and the ultimate result is anyone’s guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources,” said Flick (http://bit.ly/YR8Z6H).

Ex-Commissioner Michael Copps also praised the process: “In light of what the Supreme Court did and all that, it’s obvious we need to update the policy, get comments and be transparent and have procedures in place before things happen instead of after.”