Broadcasters Seek More Latitude with FCC Indecency Enforcement
The FCC should afford broadcasters more latitude when it comes to indecency enforcement, and focus on holding networks accountable for programming they supply to affiliates and on setting clearer guidelines for broadcasters to follow, TV station general managers and others said. With the Supreme Court’s rejection last month of indecency censures against Disney’s ABC and News Corp.’s Fox (CD June 22 p1), the onus returns to the agency to articulate what is actionably indecent. While much of the debate has focused on content, the question of how much responsibility should be borne by the affiliates should also be considered, said Bill Lamb, president of Block Communications’ WDRB-TV and WMYO-TV in Louisville, Ky.
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"When something occurs on the network that leaves the affiliate defenseless, like the Bono ‘F’ word, Nicole Richie or Janet Jackson, there is no way a local broadcaster could possibly protect themselves from that,” Lamb said. “Are fines for that kind of thing appropriate? I think they are. But they should be directed at the network, not at the local broadcaster who is absolutely defenseless in that situation, and in no way endorses it.” In the Bono and Richie cases, fleeting use of curse words generated a barrage of indecency complaints that landed at the FCC’s door, while Jackson’s brief breast-baring performance during the 2004 Super Bowl halftime show led to FCC complaints and hearings on Capitol Hill.
Broadcasters are still left wondering what types of content might lead to indecency enforcement, since the court rejected the actions on legal and not First Amendment grounds, said David Boylan, general manager of WPLG-TV. “I am pleased the court came to the right decision to reject the indecency claim. However, since they came to that conclusion by ruling broadcasters had not been given fair notice of the policy, it leaves broadcasters in the dark about what the court feels is indecent.” ABC and Fox representatives had no comment for this story.
An indecency foe who wants the agency to focus on 1.5 million backlogged complaints (CD June 27 p1) said broadcasters may not need much more guidance from the commission. The Enforcement Bureau should be able to get through the backlog since Fox II didn’t overturn underlying indecency limits, Parents Television Council Public Policy Director Dan Isett said. Asked for comment for this story, FCC Chairman Julius Genachowski’s office pointed to the written statement he issued the day of the Supreme Court decision, in which he said the commission will, “carry out Congress’s directive to protect young TV viewers.”
Broadcasters “can’t keep saying there is uncertainty when there have been court rulings, and the policy has withstood those,” Isett said. “Even prior to the 2001 policy statement, the broadcasters were saying that there was uncertainty. Is there always going to be an inkling of gray area here? Sure. But the idea that they're shooting in the dark after nearly 100 years of this law being in place, and 100 years of the broadcast medium, I think strains their credibility.” Adopting new indecency guidelines might land the FCC back in court, Isett said. “If the FCC were to go back and issue a new policy statement, it almost guarantees that the broadcasters would litigate."
The FCC should consider reverting to its 2001 policy statement on indecency, said communications attorney Andrew Schwartzman, who represented artists’ groups that backed the broadcasters in the case often called Fox II. “What I would like to see is for the FCC to abandon those complicated and inconsistent guidelines and come up with a much more consistent, much more simple, much more clear framework, starting and maybe ending with guidelines that the FCC put out in 2001,” he said. “We were operating fine with that for a couple of years until the FCC started fooling around with them.” That policy statement, he said, stipulated that repeated instances of indecent speech about sexual or excretory functions, or excessive displays of nudity, would be regarded as indecent, but otherwise provided broadcasters with “a lot of latitude."
Part of the latitude affiliates already enjoy is the right to preempt network programming, something Lamb said he did in 2006 when Fox scheduled a special in which O.J. Simpson planned to detail how he hypothetically would have killed his ex-wife Nicole Brown and her friend Ron Goldman. Simpson was tried and acquitted of the murders, but had written a book a few years later in which he theorized how he would have committed the crimes. “On things like the O.J. Simpson interview,” Lamb said, “there was going to be a special on Fox and I announced immediately that we were not going to be airing that, and shortly thereafter several broadcasters made the same declaration.” Eventually, Lamb said, News Corp. Chairman Rupert Murdoch said no Fox station would air the special, and that News Corp. also wouldn’t publish the book.
Lamb also said that affiliates should not be held accountable in cases where offensive conduct from people entering a live broadcast is heard or seen. “There is supposedly an opportunity for the FCC to fine broadcasters if some idiot enters a live shot and yells something obscene or puts up an obscene sign,” he said. “I don’t think that an affiliate station should necessarily be held responsible for the actions of idiots. By the very nature of broadcast news, you don’t delay live shots.” He added, “It’s not as though you're not constantly barraged by that kind of language and behavior in our junior high schools or on our cable channels, so let’s not act like we've never heard any of this before. But let’s do everything we can to protect ourselves from it.”