Indecency Fine against ABC Sat at FCC Nearly Two Years
Last week’s order containing the second-largest indecency fine sat on the FCC’s top floor for nearly two years before all commissioners voted for it, said agency sources. In a departure from regular practice, FCC Chairman Kevin Martin didn’t approve the nearly $1.5 million penalty against ABC (CD Jan 28 p1) when circulating the notice of apparent liability on the eighth floor in March 2006, said the sources. Martin likely hoped to defer action on the order until an appeal was resolved in a similar case, said industry lawyers.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Martin may have been forced to act by a 5-year statute of limitations, said lawyers including Andrew Schwartzman and John Crigler. If the commission didn’t fine ABC stations that aired the Feb. 25, 2003, episode of NYPD Blue by Feb. 25, it would have run out of time to do so. Martin cited the limit in asking Wednesday that colleagues vote within 48 hours, said two commission sources.
Commissioner Deborah Tate voted for the order soon after it was circulated, said the sources. The fine should alert broadcasters that “families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly,” Tate said in written remarks accompanying the order’s late Friday release. Raunchy material can only air between 10 p.m. and 6 a.m., she added: “This is neither difficult to understand nor burdensome to implement.”
Martin likely wanted to put off action until resolution of an appeal of a $550,000 FCC fine levied against CBS for showing Janet Jackson’s nipple for a split second during the 2004 Super Bowl, said Schwartzman. But the 3rd U.S. Appeals Court in Philadelphia hasn’t ruled in that case.
“They're staring at the barrel of the statute of limitations,” said Schwartzman. In delaying until now, the FCC was “just looking for something that would go their way,” said Schwartzman. He participated in an appeal of record commission indecency fines levied on March 15, 2006, for so- called fleeting expletives. In that case, the court remanded the policy to the commission.
Issuing the notice of apparent liability now lets the FCC ensure that it can put out a forfeiture order later, an agency official said. FCC and industry officials said it’s unclear whether the agency soon will clear up a bulging backlog of orders, some almost five years old. No other complaints are circulating for a vote, an FCC source said. An agency spokeswoman declined to comment.
The oldest unresolved indecency complaint filed by Parents Television Council members at the group’s request concerns a March 2004 episode of Fox’s That 70’s Show, said the council’s public policy director, Dan Isett. But other complaints may be ripe for FCC action because of the 5-year window, he said. Council members complained about the NYPD Blue show that drew the fine. “The delay in getting here has been frustrating, but we are delighted by the decision,” council President Tim Winter said in a press release.
Commissioners may have voted for the order to remind broadcasters that the agency will act on indecency complaints, said industry lawyers. The FCC hadn’t fined any TV stations except in instances of license renewals since the March 2006 fines were levied against CBS for the Jackson escapade and for nude footage included in a Dec. 31, 2004, episode of Without a Trace, said Crigler. “They just kind of wanted to remind people they were still in the indecency business,” he said. “It’s been a long time since the commission has issued anything.”