LAWYERS SAY CLOSER CALLS ON INDECENCY WILL BE MORE HELPFUL
Broadcast attorneys still await rulings on some tougher indecency cases to help guide them when advising clients, they told us. The full FCC Mon. denied complaints against Will & Grace and Buffy the Vampire Slayer episodes that contained sexual material (CD Aug 10 p1), but attorneys said they provide little practical guidance on indecency issues. “Each were clearly garden-variety cases that were properly decided by the FCC,” said former FCC Chmn. Richard Wiley.
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Attorney Cliff Harrington agreed. “These two cases are somewhat tame; we need more borderline decisions.” The FCC found that Buffy’s character straddling the character Spike after a fight was not indecent because it showed no nudity. On Will & Grace, 2 women kissing and then performing a “dry hump” wasn’t graphically sexual enough to be punished, the FCC said.
Denying complaints on relatively simple decisions that should have been decided by the Enforcement Bureau and not brought before the full Commission are not helpful, said one attorney who didn’t want to be identified because of client conflicts. The Commissioners had said they wanted to decide these cases to give guidance to the Bureau on the FCC’s new decency rules, an FCC official said. Attorney Frank Jazzo said the 2 cases didn’t shed much light on what is indecent: “They weren’t controversial enough to provide additional guidance.”
Decisions on Janet Jackson’s baring her breast during the Super Bowl, further rulings on the Bono case or other cases against more profane language from shock jocks like Howard Stern would be a better guide, broadcast attorneys told us. FCC “flip flopping” on rulings such as Golden Globe continues to confuse lawyers, they said. Attorney David Kushner, who represents Young Bcstg., is awaiting a response to the FCC’s $27,500 fine - - the maximum -- for indecent material on a KRON-TV San Francisco Oct. 2002 morning newscast (CD Jan. 28 p1). The host interviewed performers who appeared to be wearing only capes when one exposed his penis to the camera. “This was clearly an accident,” Kushner said. “How is the FCC handling incidents against live newscasts?” he asked. The FCC’s recent decision is helpful, he said, but more examples of closer-to-the-line decisions will guide broadcasters on where the line is. Meanwhile, he advises clients to tread cautiously.
More indecency decisions are likely the next couple weeks, an FCC source said. A fine against a mid-size radio station for indecent content could come down this week, the source said.
Even as attorney’s struggle to help clients define indecency, many broadcasters are opting not to pay fines, we're told. CBS, which aired the Super Bowl incident, has publically said it would fight any FCC fine. Infinity Bcstg., rumored likely to face more fines for Stern’s show, also publically stated it would fight any fines.