NAB, RTDNA Take On FCC Over WDBJ-TV/Roanoke Indecency Ruling
July 29, 2015 at 4:15 AM (PT)
Among the comments filed in SCHURZ COMMUNICATIONS CBS affiliate WDBJ-TV/ROANOKE, VA's appeal of the FCC's maximum $325,000 fine for indecency is a joint filing by the NAB and RADIO TELEVISION DIGITAL NEWS ASSOCIATION, which raises the question of whether the FCC's action constitutes sanctioning or punishment of speech based on its own subjective view of the merit of the speech and warns of an exacerbation of a chilling effect on speech from the Commission's indecency policies, which it says don't comport with the PACIFICA precedent.
"While the proposed sanction on WDBJ cannot be squared with relevant legal standards, common sense, or fundamental fairness," the organizations write, "NAB and RTDNA want to make abundantly clear that the ramifications of the Commission’s action in this case reach far beyond penalizing a single station or a single broadcast group. From the broader industry perspective, the NAL is disquieting because it improperly intrudes into broadcasters’ editorial discretion. In particular, the extraordinarily punitive nature of the fine and the accompanying discussion in the NAL raise the specter that the Commission’s subjective view of the merit of WDBJ’s underlying news story drove the unprecedented decision here. As such, the FCC’s action is a direct affront to First Amendment values that undoubtedly will further chill broadcast speech.
"The WDBJ NAL also extends the FCC’s arbitrary, unpredictable, and unconstitutional course in applying its indecency policies, which do not comport with applicable precedent. THE SUPREME COURT premised its decision in PACIFICA on the assumption that the FCC would exercise restraint and proceed cautiously in the indecency area, given the First Amendment implications of content-based speech regulation. However, the 'wildly expansive' approach to indecency enforcement the Commission has taken (especially since 2004), improperly extended policies that are unacceptably vague, subjective, and inconsistently applied. The Commission’s further insistence on creating indecency policy through multiple adjudications, many of which have never been concluded, let alone judicially approved, already has demonstrably chilled speech at broadcast stations and in newsrooms across the country."
The filing points out that the case, in which a porn video was accidentally shown in the corner of a shot (1.7% of the screen) for 2.7 seconds, "begs the question of what judgment the Commission might pass and what penalty it might impose for non-fleeting editorial content it finds objectionable." And it notes that the Commission's expansive definition of "willfulness" is "so broad that it threatens to turn almost every human error, equipment failure, or unpredictable occurrence resulting in the airing of arguably indecent material into a deliberate, intentional violation of federal criminal law and FCC regulation."
As for the Commission's decision to prosecute the particular case, the NAB and RTDNA charge that the FCC "proposed an unprecedented fine because it disapproved of the licensee’s decision to broadcast a story about a former female adult film star who subsequently became an Emergency Medical Technician volunteer." The Second Circuit Court of Appeals' 2010 ruling that the indecency policies were unconstitutional raised the concern that the Commission had treated two cases differently "because 'the FCC was simply more comfortable with the themes' in one program than it was in the other," the filing adds. And the organizations rip the Commission for issuing Notices of Apparent Liability for indecency cases but then dragging its feet for a decade or more, never making the action final but also precluding judicial review, something the increasingly frequent consent decree settlements also preclude.