Major Players Weigh In On FCC Indecency Enforcement
June 21, 2013 at 5:01 AM (PT)
The FCC's indecency rule review docket has drawn some comments from major industry players, including the major television networks, the NAB, and the RTDNA.
The NAB's comments stressed the changes in technology and media consumption that have eroded the basis upon which the PACIFICA "seven words" case was decided, and that current Commission policy has expanded beyond PACIFICA's mandate and are unconstitutional. The organization asks for "at the very least" revision of the rules to comport with PACIFICA's narrower mandate and stop banning "fleeting expletives" and images. "Taking an approach to indecency regulation that shows significant respect for, and reluctance to second-guess, the editorial and artistic judgments of stations and program creators in the indecency context would be more consistent with the Commission’s constitutional obligations and regulatory approach outside the indecency context," the NAB wrote.
NBCUNIVERSAL MEDIA also went after the rule's constitutionality, echoing the NAB's contention that the underpinnings of PACIFICA have been undermined and that television is no longer "uniquely pervasive and accessible to children" and that the indecency standard, which does not set forth specific proscribed language or activity and has been inconsistently enforced, is unconstitutionally vague, and has allowed a vocal minority a "heckler's veto" ("cookie-cutter" complaints generated by pressure groups, lacking evidence) made worse by the slow pace of resolution.
FOX called PACIFICA's foundations "built on sand" and outdated due to changes in the media, and charged that the last decade's indecency enforcement is contrary to the First Amendment and unconstitutionally vague, and at least should be restrained to PACIFICA's scope. It also said that lack of fair notice should lead to the dismissal of all pending indecency cases.
CBS called the current indecency enforcement "unintelligible," repeated the other networks' contention that broadcasting is no longer "uniquely pervasive and accessible to children," and noted the availability of less-restrictive technology (the V-chip) to do the job that the regulations do. It asked that indecency enforcement be restricted to the "most egregious" cases and that broadcasters' editorial and artistic judgments not be second-guessed. "What is required is simple: expeditious, written decisions, dismissing or sustaining complaints so that licensees will know what the Commission believes is required of them, and have the opportunity to seek judicial review where appropriate."
ABC's filing also hit at the changes in the media and their effect on the PACIFICA rationale, and asked the Commission to return to its pre-2004 policy and establish a clear bona fide news exception. The network concluded, "The concrete steps outlined above -- restoring the pre-2004 approach to fleeting live material; establishing a clear indecency exemption for news, documentary, and public affairs programming; making clear that material cannot be found indecent if it is not both highly graphic and so sustained as to constitute verbal or visual “shock treatment”; and according real and substantial deference to broadcasters’ editorial and programming choices -- would significantly ameliorate some of the chilling impact of the FCC’s current broadcast indecency policies. But even these steps, welcome as they may be, would not eliminate the vagueness and subjectivity inherent in any attempt to regulate material deemed to be offensive. Nor would they resolve the fundamental constitutional issues facing any attempt to regulate broadcast television channels differently in this regard from cable television channels or other television or video programming."
PBS and the ASSOCIATION OF PUBLIC TELEVISION STATIONS wrote that the Commission should "modify its indecency policy and complaint process to further public television stations’ mission of fully and fairly exploring topics of interest to their local communities without the undue threat of legal penalty. Public television stations do not seek to air content that panders or titillates, but too often during the last decade vague indecency standards have chilled the distribution of content that would have addressed the pivotal artistic, scientific, historic, and social issues of the day."
NATIONAL PUBLIC RADIO criticized the Commission's "zero tolerance" approach as chilling free speech and called for the use of an "egregious cases" approach instead. It also asked for clarification of the bona fide news exemption.
The RADIO TELEVISION DIGITAL NEWS ASSOCIATION wrote that the current standard does not allow for fair notice of what is and isn't permitted, and is unconstitutionally vague, chilling protected speech and overstepping the boundaries of PACIFICA. "At a minimum, the Commission should act expeditiously to create a clear exemption for news and public affairs programming," the RTDNA wrote.
A joint filing by AMERICOM, L.P.; AMERICOM LAS VEGAS LIMITED PARTNERSHIP; BEASLEY BROADCAST GROUP, INC.; BROADCASTING LICENSES, L.P.; CALKINS MEDIA INCORPORATED; EAGLE CREEK BROADCASTING OF LAREDO, LLC; ENTERCOM COMMUNICATIONS CORP.; GALAXY COMMUNICATIONS, L.P.; GREATER MEDIA, INC.; JOURNAL BROADCAST CORPORATION; LINCOLN FINANCIAL MEDIA COMPANY; MOUNTAIN LICENSES, L.P.; RAMAR COMMUNICATIONS, INC.; and STAINLESS BROADCASTING, L.P. asserts that "the Commission should not in the future punish broadcast licensees for airing fleeting or isolated expletives or nudity; it should never have done so." The commenters added that "industry developments and evolution have mooted the need for indecency regulation by the FCC," including the growth of alternative media that have eliminated the "uniquely pervasive" status of broadcasting.
Another joint filing by EMMIS COMMUNICATIONS CORPORATION, MISSION BROADCASTING, INC., NEW VISION TELEVISION, NEXSTAR BROADCASTING, INC., and RADIO ONE, INC. echoed FOX's position that the Commission needs to provide fair notice of what is proscribed by the rules before resuming enforcement. "(T)he FCC is required to clarify its indecency policies before it may resume enforcement efforts, and must limit its enforcement to broadcasts occurring after the issuance of this clear guidance," the group concluded. "Any new policy should hold fleeting words and images not to be indecent, and should avoid the use of procedures that have enhanced the chilling effect of the current policy on broadcast speech."
The WRITERS GUILD OF AMERICA, WEST, noting the rise of alternative delivery methods for programming, wrote that "we believe the Commission should consider phasing out application of indecency regulations, particularly to programming broadcast during primetime hours. Absent such action, the Commission must provide clear guidelines on what constitutes indecent material. We believe the Commission should state that use of nonsexual nudity is not indecent. We also believe that the use of expletives in a non-excretory context should not be considered indecent. The Commission should indicate whether there continues to be a presumptive ban on the use of certain words."
UNIVERSITY OF CALIFORNIA-RIVERSIDE noncommercial KUCR/RIVERSIDE, CA pointed out that the magnitude of indecency fines threatens the volunteer programming on stations like itself, because an inadvertent slip can result in a crippling fine. "The punishment for a small broadcaster in no way fits the violation. In fact, it ultimately punishes the local community that supports the station.... We ask that the definition of indecency allow for the possibility of good-faith human error and encourage rather than punish programs of artistic and social merit. We also ask that the FCC’s enforcement policy give realistic weight to the scale, function and purpose of the station involved, that the FCC recognize the simple difference between big and little, commercial and noncommercial, and between sanctions that chasten and those that destroy."
SAGA COMMUNICATIONS asked the Commission to restrict itself to the PACIFICA standard, to establish a "triage" system to weed out frivolous or unsubstantiated complaints, and to refer egregious cases to the Justice Department.
The FAMILY RESEARCH COUNCIL, on the other hand, wrote, "Simply put FRC opposes everything about this illegitimate and ill-advised proceeding." The group, which favors restrictions on broadcast indecency, complained about the process by which the issue came up for comment, saying, "Whatever one thinks of the FCC’s current indecency policy, no reasonable person can believe that millions of Americans are unconcerned with the nature of the video and audio content broadcast into their homes. It is fair to say that for most Americans the FCC’s enforcement – or non-enforcement -- of its indecency rules is the Commission’s most important function. It is this fact that makes the release of this Notice along with Chairman GENACHOWSKI’s unilaterally-created enforcement policy so shocking and insulting." The FRC wrote that "the Commission should not deviate from the statement of its policies made to the Supreme Court in the litigation leading up to the decision in FCC v. FOX. There should be no weakening of the indecency standards the Commission enunciated to the Court ... Frankly, it is mind-boggling that, with the FCC v. FOX decision now decided, it would even ask these questions or consider creating a new standard that can be litigated for another decade."
And the PARENTS TELEVISION COUNCIL, which has been credited with generating over a million listener complaints about indecency through form letters, wrote that the FCC "has failed in its responsibility to adjudicate complaints based on the merits on each case while inexplicably claiming that it has not changed any policy, and will potentially give rise to even more litigation from broadcasters who have demonstrated a willingness to use the Commission’s historical unevenness in enforcement as a reason to request judicial relief." The PTC asked, "how can material that meets the FCC’s own standard of 'patently offensive' not meet a would-be standard of 'egregiousness?' It is also unclear what the definition of “egregious” as used by the Enforcement Bureau to dismiss more than 1 million duly-filed indecency complaints was ... It has created a new de facto standard out of whole cloth and only now seeks public comment on the issue." It counseled the FCC not to change the rules and should not limit itself to fining "egregious" cases.