Broadcasters, Public Interest Groups Say FCC Indecency Rules Too Vague
The FCC’s indecency rules are too vague to survive court challenges or provide a clear definition of what constitutes a violation, said a host of filings from trade associations, broadcasters, affiliates and public interest groups on Wednesday,the deadline for comments on the commission’s indecency public notice. The Family Research Council said the commission has never defined “egregious,” while the Radio Television Digital News Association said the commission’s indecency policy is “unknown and unknowable to broadcasters, journalists, and program producers alike.” The commission must “step back from substituting its own editorial and artistic judgment for that of broadcasters and the creative community,” NAB said. “The Commission should decline to act absent a significant abuse of discretion."
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The FCC should not go back to its Golden Globes enforcement policy of penalizing broadcasters for fleeting expletives and brief nudity, said ABC, CBS, and affiliates of both CBS and NBC. “By imposing severe fines for fleeting expletives or brief images of nudity, the Golden Globes policy would unnecessarily chill speech, discourage broadcasters from airing live events and deprive the public of valuable programming,” said the CBS affiliates in their comments. Fox, NBCUniversal and a coalition of broadcasters including Media General and Allbritton said the FCC should cease regulating indecency altogether. “The Commission should take this opportunity to confront candidly and openly whether and to what extent it may continue policing broadcast indecency at all,” said NBCUniversal. “Time and technology have marched inexorably forward, but the Commission’s untenable effort to define indecent content through a hodgepodge of inconsistent and uneven rulings remains stuck in a bygone era."
Many of the broadcasters raised the same arguments brought up by a coalition of public interest groups led by TechFreedom (CD June 20 p7), that the increase in media choices and technological advances since the Pacifica decision that shaped the commission’s indecency rules means the old rationale for indecency regulation no longer applies. “With the availability of multiple blocking technologies, such as the V-chip and services like TiVo’s KidZone, parents today have options to curb their children’s accessibility to video programming,” said the joint coalition of broadcasters.
The Family Research Council used the same arguments about the ubiquity of media and availability of V-chips and technology that blurs nudity to argue in favor of a stricter indecency policy. “It is especially important that broadcast TV provide an area of protection for children,” FRC said. “The availability of the Internet, non-broadcast cable channels, video-on-demand cable TV, and movie streaming (e.g., Netflix, Amazon Prime, Hulu) ensures that broadcast indecency restrictions are not onerous for those wishing to view content that includes nudity."
FRC said the FCC’s effort to reconsider indecency policy should be nullified because the effort began after both then-Chairman Julius Genachowski and Commissioner Robert McDowell had announced that they would leave the commission. “This proceeding should only have been started after consideration by the full Commission when its members did not include holdovers,” said FRC.
The Parents Television Council attacked the commission’s elimination of a backlog of “stale” enforcement complaints, which it said were stale “due only to the Commission’s own inaction.” CBS also attacked the commission’s clearance of the backlogged complaints, but said the action was an illustration of “need for reform.” This “state of affairs is hardly calculated to breed respect for the administrative process, either among the subjects of regulation or advocates of stricter indecency enforcement,” CBS said. “The Commission’s strict liability regime has encouraged the filing of hundreds of thousands of indecency complaints that have overwhelmed the Commission’s ability to deal with them rationally, transparently and within a reasonable time frame."
NAB also said the commission should take steps to rein in the amount of complaints. “The commission should proceed with enforcement inquiries only where complaints have been submitted by a complainant with first-hand knowledge of the programming at issue and contain sufficient information and supporting documentation,” the trade association said. Fox and other broadcasters said as the commission reforms its policy, violations pending from the old indecency regime should be dismissed. “No matter the policy it attempts to follow for the future, the Commission must start fresh and dismiss all pending cases,” Fox said.