FCC Proposes $325,000 Indecency Fine for WDBJ Roanoke

The FCC proposed a fine of $325,000 -- the maximum allowed -- against Schurz Communications-owned WDBJ Roanoke, Virginia, for broadcasting explicit video from an adult film website on a news broadcast, said a notice of apparent liability (NAL) released Monday. It's “self-evident” that “the stroking of an erect penis on a broadcast program is shocking,” said the NAL. “Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching,” said Enforcement Bureau Chief Travis LeBlanc in a statement. The offending images' inclusion in the broadcast was “purely unintentional” and was visible only on some televisions for less than three seconds, said WDBJ in a statement. The station plans to oppose the fine, it said.

The explicit material was broadcast in July 2012 at around 6 p.m. during an evening news story about a local rescue squad volunteer who had previously acted in adult films, the NAL said. During the report, the station aired a brief screenshot from an adult film website hosting one of the volunteer’s films. Though the online clip of the volunteer didn’t contain indecent material, the screenshot included ads around the borders of the clip that included an “image of sexual activity involving manipulation of an erect penis” the NAL said. Though WDBJ said the explicit images weren’t visible during the editing process, a photojournalist for the station said he just didn’t notice the explicit pictures, the NAL said. After receiving viewer complaints, WDBJ didn’t rebroadcast the report, and removed it from the station’s website, the NAL said.

Though WDBJ has argued that the image was fleeting, the FCC said the duration was “not so brief as to preclude an indecency finding,” and said it was “sufficient to attract and hold viewers’ attention” since the station received several complaints. One broadcast attorney told us some previous FCCs may not have assessed a fine for this offense since it was unintentional and so brief, but the Parents Television Council’s Grassroots Director Melissa Henson disagreed. “This was so clearly a violation, I very much doubt this would have been given a pass,” Henson said.

The subject matter of the report likely contributed to the fine, Henson and the attorney said. If the sexual content had occurred in the background of a fire or some other news event, the FCC may have been more likely to see its inclusion as inadvertent, they said. “This was not circumstances beyond their control,” Henson said. “WDBJ included in the broadcast images from the adult film website that distributes films featuring the former star of such films. As a direct consequence of that action, in conjunction with its failure to monitor the full content of the broadcast, the Licensee aired the sexually explicit images,” the NAL said.

WDBJ said the FCC hadn’t provided proper notice that this sort of material would be indecent, since it issued a 2013 public notice seeking comment on its indecency policies “without clearly articulating the standards that would apply to indecency enforcement or whether the indecency policies would or would not apply during the pendency of the comment period,” the NAL said. Commission precedent shows that graphic sexual activity violates the FCC’s indecency policy, the NAL said. Though Henson conceded that the FCC’s indecency policies can be seen to have “a gray area,” WDBJ’s violation was so extreme that its indecency isn’t in doubt, Henson said.

The “enormous fine” proposed by the FCC is “an extraordinary burden on protected speech,” WDBJ said. The FCC’s base forfeiture for a violation of the indecency rules is $7,000, WDBJ said. “This unprecedented proposed fine is more than 46 times higher than the FCC’s own determination of the punishment for indecent speech,” said the station. The high fine could be “a signal that the FCC is serious about enforcing its indecency policy,” Henson said. “Today must not be the conclusion of indecency enforcement; rather it must be just the beginning of FCC enforcement action,” said PTC in a statement. The video clip “depicted not only nudity but also graphic sexual activity during a program that was broadcast when there was a reasonable risk that children were likely to be in the audience,” said the FCC in explanation of the fine.