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FCC defines the indefinable

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Seven years in the making, new guide tells broadcasters how to avoid fines From the Spring 2001 issue of The…

Seven years in the making, new guide tells broadcasters how to avoid fines

From the Spring 2001 issue of The News Media & The Law, page 24.

By Emily Hagemann

Seven years after agreeing to write guidelines as part of a court settlement, the FCC instructed broadcasters as to how they can avoid fines by laying out some of the factors the agency considers when reviewing indecency complaints.

The guidelines issued on April 6 followed years of broadcasters testing what they could say on the air, numerous press releases from one commissioner criticizing the FCC for what she called a lack of indecency enforcement within the agency, and a promise by the new FCC chairman to pull back on his agency’s past activism and shift the telecommunications battleground to Congress and the states.

Whether the release of the guidelines is a precursor to a crackdown on indecency or simply making good on a long-standing promise is yet to be seen, but it is a major development for an agency that for the last seven years has said very little on the subject of indecency.

The FCC has been regulating indecent content on the nation’s airwaves with the U.S. Supreme Court’s blessing since 1978. The nation’s highest court ruled in FCC v. Pacifica Foundation that George Carlin’s monologue “Filthy Words” was indecent and said the government could constitutionally regulate indecent broadcasts. For most of the next decade, the FCC regarded indecency as the repetitive broadcast of the “seven dirty words.” After public complaints criticized some broadcast content, the agency in 1987 issued a new standard of indecency. The agency decided to abandon the previously narrow policy in favor of a prohibition of “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.” The new definition encompassed more than the “seven dirty words.”

The U.S. Supreme Court said because indecent speech is protected under the First Amendment, any regulation must be narrowly tailored to further a compelling government interest. One FCC regulation that has survived this test is the rule allowing restriction of indecent speech outside of a “safe harbor” time period, which the U.S. Court of Appeals in Washington, D.C., finally approved in 1995 after much wrangling. During the safe harbor zone, which runs from 10 p.m. to 6 a.m., the FCC does not regulate content for indecency. Any broadcast outside those hours must be free of indecent content, as children are more likely to be watching. The government’s interest in helping parents control their children’s exposure to indecent content was sufficiently compelling, the court held.

The vague nature of the indecency definition has led to concerns within the broadcast community as to what it can and cannot say on the air.

The case that led up to the guidelines began in November 1989 when the FCC fined the “Steve and Garry Show,” an afternoon program on Evergreen Media Corp.’s WLUP in Chicago, $6,000 for indecent broadcasts. The agency cited several broadcasts as indecent — a parody of Neil Diamond’s “September Morn” entitled “Kiddie Porn”; a joke by a caller about a gay bar with the punch line, “May I push your stool in for you?” and finally, a short dialogue deriding NBC reporter Bob Costas’ interview with former Miss America Vanessa Williams who relinquished her title after Penthouse published photographs of her posing in sexually explicit poses with another woman.

Evergreen Media Corp., which has since been taken over by Clear Channel Communications Inc., refused to pay the fine because it said the broadcasts were not indecent if viewed in the full context of the commentary. It sued the FCC, challenging the agency’s legal authority to enforce indecency standards.

A trial in federal court was avoided when the two sides reached an agreement in February 1994. Evergreen agreed to drop its suit against the FCC if the agency would dismiss Evergreen’s fines and publish guidelines within nine months interpreting court cases and its enforcement policies regarding broadcast indecency. (U.S. v. Evergreen Media Corp.)

The FCC did not publish the guidelines and continued to either dismiss indecency complaints or fine offending stations without issuing them.

John Winston, assistant enforcement bureau chief to the FCC, said the process for issuing the guidelines took seven years because agency officials had to evaluate them and add comments.

The FCC did not institute any new policies in the guidelines, nor did it more clearly define indecency. The guidelines instead collected FCC rulings on indecency and explained them in one document, which may give broadcasters a comprehensive picture of the way the agency will enforce the rules in the future.

The guidelines emphasize that indecent utterances will be considered in their full context. The guidelines outline some of the issues the FCC looks for in an indecency complaint, such as: the explicitness or graphic nature of the material; whether the material dwells on or repeats at length the indecent content; and whether the material apparently is presented for pandering or titillating purposes or for shock value. The agency will assess the graphic nature of broadcast content in light of its full context, noting that while explicit language in a newscast might not be patently offensive, persistent sexual innuendo with inescapable sexual meaning in another context might be.

To best demonstrate the parameters of indecency, the guidelines include examples of actual incidents that warranted a fine or dismissal.

Transcripts of broadcasts that received complaints are followed by an explanation of the FCC’s decision. The examples range from well known “shock jocks” like Howard Stern, who over the years has amassed more than $1 million in fines, to the banter of local morning talk show hosts.

Included in the examples was a San Diego station fined for a song about candy bars. The agency said while the song used double meanings, the song was “clearly capable of a sexually specific meaning.” Similarly, the FCC fined a station for content in a Stern broadcast that included language such as: “Have you ever had sex with an animal? Well, don’t knock it. I was sodomized by Lambchop.” The agency said the material consisted of “vulgar and lewd references to the male genitals and to masturbation and sodomy.”

On the other hand, a segment of Oprah Winfrey’s television show on how to improve romantic relations and a broadcast of a high school sex education class were not indecent because “the material presented was clinical or instructional in nature and not presented in a pandering, titillating or vulgar manner.”

The FCC said it does not monitor the airwaves for indecency — instead it relies on the public’s complaints. Gearing the guidelines also toward listeners, the FCC described the requirements of a complaint, as well as the actions it takes when it receives a complaint.

“Given the sensitive nature of these cases and the critical role of context in an indecency determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of indecent programming,” the guidelines stated.

The complaint must contain: a full or partial tape or transcript of the program, the date and time of the broadcast, and the call sign of the station. The enforcement bureau then decides to either dismiss the complaint or contact the station for further information. If the commission decides that certain material meets the definition of indecency, it can impose a warning, a fine or revoke a station’s license.

According to the FCC Web site, the agency has fined seven stations totaling $86,000 since the beginning of this year.

Two of the commissioners, while agreeing with the guidelines, issued separate statements.

Commissioner Susan Ness noted the delicate line the FCC walks when addressing content issues and said the agency was careful not to tread on the First Amendment. She said the policy statement alone would not “solve the festering problem of indecency on the airwaves,” and urged broadcasters to restore a code of conduct. Ness also suggested that the commission streamline the complaint process.

While Commissioner Harold W. Furchtgott-Roth noted his amazement that it took the commission so long to produce the guidelines, he also predicted any action to enforce the indecency guidelines would “set the stage for a constitutional challenge” regarding the agency’s authority to regulate content.

He also said the broadcast content restrictions should be eliminated. “Technology, especially digital communications, has advanced to the point where broadcast deregulation is not only warranted, but long overdue.”

Deregulation is a goal shared by FCC Chairman Michael Powell, who has said that Congress should set the terms of telecommunications rather than federal bureaucrats. Those who seek to address moral and political concerns — such as indecency — should take their concerns to Congress.

“Social judgments should be done by people who have direct accountability to the public,” Powell said in a news conference after President George W. Bush named him chairman in January. Lobbyists often prefer the FCC “because it’s easier to convince three or five” commissioners than “535 elected officials.”

Powell said in a Feb. 6 press conference that it is not his job to clean up the airwaves.

“I think there’s a lot of garbage on television,” he said. “There are a lot of things children shouldn’t be seeing. But I don’t know that I want the government as my nanny.”

In a strong dissent to the indecency guidelines, Commissioner Gloria Tristani said the policy “diverts the attention and resources away from the ongoing problem of lax enforcement, which is a pressing concern of America’s citizens.

“It would better serve the public if the FCC got serious about enforcing the broadcast indecency standards,” Tristani said in her statement.

Tristani has already this year written four objections to FCC enforcement bureau actions dismissing indecency complaints.

“Unfortunately, this is not an isolated instance,” Tristani wrote about the dismissal of a complaint, a dissent that followed almost word for word her past objections. “The Commission appears so adverse to indecency cases, and has erected so many barriers to complaints from members of the public, that indecency enforcement has become virtually non-existent. It’s time for the Commission to begin taking indecency cases seriously again. It’s our duty under the law, and, more importantly, our duty to our children.”

Complaining about the dismissal of complaints at radio stations from Pittsburgh to St. Louis, Tristani said the enforcement bureau often does not seek the necessary information to answer the indecency question, but instead construes “the facts alleged in the complaint in the light most favorable to the broadcaster rather than the complainant.”

“I am at a loss to explain the failure to even seek further review,” Tristani wrote in another objection letter. “This decision adds weight to the public’s conclusion that the FCC’s indecency enforcement program is ineffective.”

When asked during an interview with Television Digest about what she would have the bureau do differently, Tristani said: “I would make sure that every complaint we receive . . . wasn’t prejudged (by the bureau) as to whether these cases were indecent or not. One thing I ought to make clear. I’m looking at every letter” the bureau sends out dismissing complaints — many of which never become public. As for commissioners, “we receive complaints in our e-mail all the time.” She does not pass them on to the bureau, she said, “unless they are very specific . . . I’m not concerned about giving the bureau additional things to do. I’m more concerned about what they’re supposed to be doing and not doing properly.”

The guidelines recently issued by the FCC may not signal any significant changes to how the agency deals with indecency, but the agency will soon get a makeover.

Bush on April 6 nominated two Republicans and one Democrat to fill commissioner vacancies. Kevin Martin will fill the seats left by former chairman William Kennard when he resigned in January and Kathleen Abernathy and Michael Copps will take Furchtgott-Roth’s and Ness’ positions when they leave later this year.

Bush may have the opportunity to appoint one more commissioner as Tristani has indicated that she plans to resign from the FCC at the year’s end.