Is the FCC Finally Ready to Face Reality About 'Indecency'?

WASHINGTON, D.C.—Back in September, outgoing FCC chairman Julius Genachowski and the U.S. Department of Justice decided to drop their efforts to collect the $71,000 fine the FCC had levied on 13 Fox Broadcasting-affiliated stations over the alleged indecent images—a pixilated "nude" woman riding cowgirl on a prospective beau at a bachelor party—that it broadcast during a 2003 airing of the Fox series Married by America.

At the time, Genachowski stated that, "In the wake of the Supreme Court's decision in Fox v. FCC, the Commission is reviewing its indecency enforcement policy to ensure the agency carries out Congress's directive in a manner consistent with vital First Amendment principles. In the interim, I have directed the Enforcement Bureau to focus its resources on the strongest cases that involve egregious indecency violations.  We also will continue to reduce the backlog of pending indecency complaints."

And what a backlog that was! Nearly 1.5 million complaints, most of which were generated by religio-conservative pro-censorship group Parents Television Council, whose online complaint forms were used to flood the FCC with over a million complaints about Janet Jackson's split-second tit exposure during the 2003 Super Bowl halftime show.

And of course, the PTC is still at it, filing complaint after complaint—like its campaign to get CBS to change the name of its 2010 comedy series $#*! My Dad Says, which CBS had already euphemized from the series' Twitter roots "@ShitMyDadSays," and more recently, urged its members to file complaints over CBS's handling of this year's Super Bowl post-game party, during which a couple of Baltimore Ravens players said "shit" and "fucking" on-air.

But hey, what can you expect from an organization that claims that between 2005 and 2010, there was a 2,409 percent increase in the use of the word "fuck" on primetime TV, when in fact, the word wasn't even broadcast once during that time. (Note: PTC counts bleeped versions of the word in its total.)

But now, with Genachowski likely to leave his position within the next month, the FCC on Monday authorized a 90-day "request for comment" period as to whether the "egregious" standard should be the agency's continuing operating principle, noting that the agency had fulfilled Genachowski's dictum "principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent." In other words, pretty much all the cases filed by the conservative religious nutjobs.

The public is also being asked to comment on whether it should target only repeated "offenses" rather than isolated incidents, and whether it should treat "non-sexual" nudity differently than "isolated profanity." In other words, if Charlotte Ross bares her ass briefly and gives viewers a glance at side-boobage, as she did in the NYPD Blue episode that was the basis for FCC v. ABC, Inc., should that be considered more or less violative than Nicole Richie complaining, as she did during the 2003 Billboard Music Awards telecast, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"

Of course, even the word "egregious" is open to FCC employees' interpretation. While the dictionary defines it as "conspicuously bad," the simple fact that a word or image was broadcast on TV or radio might easily be deemed "conspicuous," and depending on how many bluenoses work at the agency, many words beyond George Carlin's "seven filthy words" might easily meet the stretched definition of "bad."

According to the report on the Broadcasting & Cable website, an FCC spokesperson referred those inquiring about the definition to examples contained in a 27-page FCC document, released on April 6, 2001, titled "Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency," which can be read here.

Notably, the Industry Guidance refers to a series of cases captioned Action for Children's Television (ACT) v. FCC, and states that according to court decisions in those cases, "the FCC had to identify the compelling government interests that warranted regulation and also explain how the regulations were narrowly tailored to further those interests" for any broadcast speech outside the agency's established "safe harbor" of 10 p.m. to 6 a.m.

The paper also sets forth an "analytical approach" to determining indecency, which boils down to two points: 1) "First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition – that is, the material must describe or depict sexual or excretory organs or activities," and 2) "the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium," using "the full context in which the material appeared."

If that sounds cribbed from the Supreme Court's obscenity test in Miller v. California... it clearly is, and the majority of the remainder of the document is taken up with specific cases where the FCC has applied those standards.

Anyway, guess who's upset that the FCC would even consider ignoring many dirty words or sexy images?

"The FCC's announcement is deeply vexing for at least three reasons," said PTC president Tim Winter. "It unnecessarily weakens a decency law that withstood a ferocious, ten-year constitutional attack waged by the broadcast industry. It invites yet another wave of special interest pressure to obviate the intent of Congress and the will of the American people. And it connotes a change in indecency enforcement policy at the FCC that nobody knew about...Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course which will guarantee nothing but a new rash of new litigation."

Well, let's analyze that for a moment. Of the "big name" indecency cases the FCC has tried to bring over the past decade—Janet Jackson's tit, Charlotte Ross's ass, Cher's responding to critics with a simple "Fuck 'em" at the 2002 Billboard Music Awards and Nicole Richie's statements, as noted above, in the same venue the following year—it's lost every single one of them, so that hardly fits the definition of having "withstood a ferocious, ten-year constitutional attack," though it certainly cost broadcasters enough moolah fighting for their speech rights.

Beyond that, there's good reason to doubt that "the will of the American people" needs any "special interest pressure" to continue not to have a problem with the minor incidents of "indecent speech" that PTC files its millions of complaints about, and with Genachowski's September, 2012 order limiting FCC action to "egregious indecency violations" having been published widely in communications industry media, PTC can hardly say the change was something that "nobody knew about"—and as noted above, it's exactly the topic on which the FCC is currently seeking comment!

Of course, with Genachowski stepping down soon, the results of the FCC's comment period will be interpreted by his successor, and no one's sure exactly who that's going to be, though it's likely to be someone who shares the speech philosophy of President Obama—a likelihood that's undoubtedly worrying PTC immensely.

As Broadcasting & Cable editorialized in February, regarding the post-game Super Bowl party, "[T]imes have changed. While a court has said the FCC’s fleeting indecency policy is not unconstitutional, Genachowski said last fall that the FCC was only pursuing egregious indecency violations. What that translates to is an effort to return the FCC to its more restrained, pre-[Janet]-Jackson indecency enforcement status. It wasn’t exactly hands-off then—just ask Howard Stern—but definitely less aggressive.

"The PTC is free to complain," the editorial continued. "That is their right. The FCC is free to apply its 'egregious' standard and conclude that the fabric of the nation will not be rent by a couple of swear words from football players excited to have won the Super Bowl. Neither Jane Fonda nor NBC was pilloried a few years back for using the c-word on morning TV. And any regular NFL-watcher will have heard more than one colorful comment from the sidelines on a referee’s call... We applaud the FCC for ratcheting back from the brink of censorship, whatever the reason. That is why we are confident there will be no similar overreaction this time around."

AVN, of course, is a bit less confident... but hopeful, since the FCC's indecency policy may easily be a guidepost to the Justice Department's obscenity policy.