Indecent Proposals

As the FCC and Congress take aim at ridding the airwaves of indecency, broadcast journalists worry about getting caught in the crossfire

From the Spring 2004 issue of The News Media & The Law, page 12.

By Liam Hurley

In his first game back from an ankle injury, Los Angeles Lakers center Shaquille O’Neal led his team to an 84-83 victory over the Toronto Raptors on Feb. 1. O’Neal had 36 points in the win, yet the Lakers’ perennial all-star was none too pleased with the referees who officiated the game.

“My message to (commissioner) David Stern is get some people in there that understand the game and don’t try to take over the fuckin’ game, because people pay good money to see good athletes play,” O’Neal said in an on-the-court interview, broadcast live by KCAL-TV in Los Angeles immediately following the action.

“Shaq, we’re on live,” reporter John Ireland told O’Neal.

“I don’t give a shit,” O’Neal said.

The National Basketball Association suspended O’Neal one game, which cost him approximately $295,000 in salary. (He makes $26.5 million this year.) However, the Federal Communications Commission opted not to take action against the station, an affiliate of CBS.

According to First Amendment advocates, it is one of the few positive signs in recent months that federal regulators and legislators, in their crusade against broadcast indecency, will stay out of the news media’s business.

“CBS News is going to go through the same editorial process it always has,” said the company’s spokesperson, Sandy Genelius. “The indecency issues that are currently being discussed do not affect news coverage; it is an entertainment issue.”

To be sure, it was a musical production that prompted federal lawmakers to declare war on broadcast indecency. Following the unveiling of singer Janet Jackson’s right breast during this year’s Super Bowl halftime show — ironically, on the same day as the interview with the Lakers’ O’Neal — members of Congress proposed new restrictions and increased fines for actions deemed “a progressive coarsening of our culture as reflected in broadcasting, cable and video games,” according to FCC Commissioner Kathlee n Q. Abernathy.

In March, the U.S. House of Representatives overwhelmingly passed a bill that would raise the maximum fine for broadcast indecency by more than 1,000 percent — from $27,500 to $500,000 — and could restrict “violent” programming to hours between 10 p.m. and 6 a.m. The bill further allows the FCC to not only fine the broadcasting company that aired the indecency, but also the individual who performed or uttered it.

The U.S. Senate bill, which was not debated before Congress went into spring recess, would increase the minimum fine to $275,000, the original amount proposed by the House in February. The Senate also places a cap of $3 million in fines per 24-hour period for companies, and a cap of $500,000 per 24-hour period for individuals.

Not everyone in Congress supported those measures, however.

“This is going to be a very dark day in our history,” said Rep. Gary Ackerman (D-N.Y.), speaking on the House floor on March 11, when the House passed the Broadcast Decency Enforcement Act. “We’re going down the slippery slope of eroding our Constitution.”

Although unhappy about the pending legislation and new FCC enforcement guidelines, the nation’s largest radio broadcasting company, Clear Channel Communications, has since announced a new zero-tolerance policy toward indecency. Clear Channel, which operates 1,200 radio stations nationwide and received a $775,000 indecency fine from the FCC earlier this year, has fired a handful of its radio talk-show hosts. Among them was Florida-based radio personality Todd “Bubba the Love Sponge” Clem, whose “sexually explicit” show led to the monstrous fine. It later dropped controversial talk show host Howard Stern from its stations as well.

The FCC has not yet articulated how news programming will be judged under the new indecency guidelines, which broadcasters say are vague. In 1989, the commission declined to fine affiliates of National Public Radio after receiving complaints from listeners who heard an expletive-laden recording of an FBI wiretap of New York mobster John Gotti. The FCC said at the time that penalties were not justified because Gotti’s remarks, captured on tape, were aired in the context of a news broadcast.

“It has been erroneously assumed that news broadcasts are exempt from indecency enforcement. They are not,” said Kathy Kirby, attorney for the Radio and Television News Directors Association. “The FCC has already demonstrated they will be more vigorous in enforcing indecency laws in news broadcasts, and they will continue to do so with this legislation.

“The impact of the legislation might be — because of the elevated fines, because of the possible license revocations — that television stations will move away from live broadcasts, or seek to censor them in some way,” she added.

In January, the FCC took “context” out of the equation and fined station KRON-TV in San Francisco $27,500 for a live broadcast interview that included a shot of a man’s genitals. Performers from the on-stage show “Puppetry of the Penis,” an Australian comedy troupe that twists its genitalia into shapes such as celebrities, animals and food, was interviewed by the station in October 2002. During the live broadcast of the interview, a camera panned downward to performer David Friend’s exposed genitals. The visual lasted less than a second, and the television station apologized profusely.

Nonetheless, the FCC referred to the broadcast as “titillating and shocking,” and fined the independently operated station.

How the commission will interpret news broadcasts moving forward remains a mystery.

The case of “shock jock” Howard Stern highlights the challenges of differentiating between entertainment and news. In April, Clear Channel Communications announced that it will no longer air Stern’s radio show, owned and syndicated by Infinity Broadcasting, from its six stations that carried it. The decision came after the FCC fined Clear Channel $495,000 for a program, broadcast in April 2003, in which Stern and his guests discussed anal sex while sounds of flatulence played in the background. (Infinit y is now under investigation for that same broadcast.)

Stern was initially suspended from Clear Channel stations following an interview with socialite Rick Saloman, who appeared in a homemade sex video with Paris Hilton. Stern and Saloman discussed anal sex and other sexual activities, and a caller to the show made various racially insensitive remarks.

Susan Tetreault, associate chief of staff for the FCC’s Enforcement Bureau, said the commission is currently investigating the interview with Saloman. No ruling had yet been made as of mid-April.

Yet in September 2003, the commission issued a declaratory statement that established on-air interviews by Stern to be “bona fide news programs.” Stern had wanted to interview actor Arnold Schwarzenegger, who was then running for governor of California, so Infinity Broadcasting sought an exemption to the equal-time rule. The rule was created to provide all candidates in a political election with equal broadcast time, but “bona fide” news programs are not held to the rule.

In the judgment of the FCC, interviews by Stern met the three standards of news: “the program must be regularly scheduled; the content, format and participants must be determined by the licensee; and a determination must be made by the station ‘in the exercise of its bona fide news judgment and not for the political advantage of a candidate for political office.’ ”

So if Stern’s show is a “bona fide news program,” and the FCC has repeatedly shown its willingness to fine the show — Infinity Broadcasting paid a $1.7 million fine, the largest in the FCC’s history, in 1995 for several indecency violations relating to Stern’s show — it stands to reason that broadcast news operations have reason to be concerned.

Consistency in FCC rulings of indecency are among broadcasters’ top concerns.

In March, the commission overruled an October 2003 decision by its own Enforcement Bureau, saying the ruling was “not good law.” The FCC said that the phrase “fucking brilliant,” uttered by U2 singer Bono live on national television during the 2003 Golden Globes award show, was indecent.

The Enforcement Bureau had said the phrase was not indecent because it was “fleeting” and not uttered “in a sexual context.” The commission chose to reconsider that ruling after receiving numerous complaints from legislators and conservative family groups.

The FCC did not fine NBC or its broadcast affiliates, which aired the awards show. The commission did, however, put broadcasters on notice that any future use of the “f-word” would be deemed indecent. Such a ruling could include financial sanctions and “possible license revocations, if appropriate,” the commission said in a press release.

“The FCC has basically taken context out of the use of vulgar words,” said John Eggerton, Washington bureau chief of the industry trade magazine Broadcast & Cable. “I think it will chill free speech, but it won’t threaten news reporting.

“But honestly, with some of the measures bound to be passed in the Senate bill,” Eggerton added, “who really knows for certain what kind of effect this will have.”

The FCC declined to comment on whether news programming will be held to a different standard than entertainment in determining indecency.

Blind Determinations

The FCC’s ability to regulate speech aired over the radio and on network television stems from the 1978 U.S. Supreme Court case FCC v. Pacifica. In 1973, a Pacifica radio affiliate in New York City aired comedian George Carlin’s “Filthy Words” monologue at 2 p.m. The FCC fined Pacifica, and the case rose to the nation’s high court.

In a 5-4 vote, the Supreme Court said the FCC could label indecent “language or material that depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs,” aired “when children were most likely to be listening or watching.”

The court ruled that the monologue was not “obscene,” but the FCC was also not in violation of the First Amendment by sanctioning the station.

The amount and extent the commission can sanction stations is now at the center of legislation. The Broadcast Decency Enforcement Act, authored by Rep. Fred Upton (R-Mich.), chairman of the House Subcommittee of Telecommunications and the Internet, would give the FCC broader powers and greater disciplinary weapons.

Also under the new provisions, the FCC can double fines for those who commit an act of indecency in front of a large television audience, although no one has yet defined what constitutes “large.”

A Senate committee also conditionally approved Sen. Fritz Hollings’ (D-S.C.) “safe harbor” measure, which would move violent programming to television slots after 10 p.m. The measure is contingent on an FCC study currently underway that is trying to determine the effectiveness of the V-chip, a device in televisions that allows parents to block programming they find objectionable.

Andy Davis, a spokesman for Hollings, said news broadcasters — whose ability to report news as it happens has long defined their medium — would be exempt from the rule. A spokesman for Upton said he thinks the bill will be submitted to President Bush by late April, provided, of course, that it is passed in the Senate.

A provision that was barely defeated in committee, however, was arguably the most radical piece of proposed legislation. Sen. John Breaux (D-La.) proposed an amendment that would have allowed the FCC to regulate cable and satellite stations — such as MTV and ESPN — in addition to the network stations currently under its regulatory authority. The bill was defeated in committee, 12-11.

John Dunbar, project manager at The Center for Public Integrity, a nonprofit organization in Washington, D.C., that specializes in government accountability, said the bill would have dramatically enhanced the commission’s power.

“Eighty-five percent of Americans watch cable television, and get their news from television in general,” Dunbar said.

While some members of Congress and the FCC see these steps as necessary to halt the spread of broadcast indecency, some believe Washington is setting a dangerous precedent that risks the sanctity of the First Amendment. Tom Carpenter, national director of news and broadcasting at the American Federation of Television and Radio Artists, said new internal policies at radio stations — imposed out of fear of further government regulations — are essentially a prior restraint on free expression.

Viacom President Mel Karmazin, testifying before the House Subcommittee on Telecommunications and the Internet in February, said recent FCC rulings “underscore the difficult task facing broadcasters as an industry to make subjective determinations within a matter of several seconds as to whether a specific program material is legally indecent.”

“Is the standard in Las Vegas the same as the standard in Salt Lake City?” he asked.

Clear Channel President Mark Mays, in a Jan. 27 statement, called on the FCC to help form “an industry-wide task force” to help monitor and address broadcast indecency.

Noting that indecency is an “industry-wide challenge,” Mays said that “we all must take responsibility to make sure it is addressed on a fair and consistent basis.”