In 2005, Congress passed the Broadcast Decency Enforcement Act of 2005, increasing potential maximum forfeitures against broadcast stations from $25,000 for each day of a violation subject to a $250,000 maximum per violation up to $325,000 per day and $3 million per violation, respectively, for the broadcast of “obscene, indecent or profane language.” The FCC amended its rules in 2007 to reflect this statutory change. However, that increased forfeiture authority had not been exercised by the FCC until now. In a Notice of Apparent Liability released Monday, the FCC issued the maximum $325,000 forfeiture against TV Station WDBJ in Roanoke, Virginia for showing less than three seconds of a hand stroking an erect penis during a news story about a former adult film star who had joined a local volunteer rescue squad.

FCC rules prohibit the television broadcast of indecent material between the hours of 6 am and 10 pm, when children may be present in the audience. The newscast at issue aired at 6:00 pm in July 2012. Indecent speech has been defined as material that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.” To be considered “patently offensive,” the Commission considers (1) the explicitness or graphic nature of the description or depiction; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates or shocks the audience.

The FCC decided that the three second clip at issue here satisfied these criteria, because the clip portrayed not only nudity but sexual activity as well. The Commission therefore distinguished it from cases where an isolated expletive had been aired. The FCC also noted that there is no exemption for news programming. Interestingly, the clip at issue was shown in one of three small boxes that bordered the primary video image purportedly showing the woman who was the subject of the news story. That primary video image showed the woman placing her own finger in her mouth and was not deemed to be indecent. The licensee claimed that station personnel did not notice the small boxes to the right of the primary video when they downloaded the video from an adult website. When the news story ran, however, viewer complaints followed and the station did not rebroadcast the story and removed it from the station’s website.

In reference to the brevity of the clip at issue, the FCC cited Supreme Court Chief Justice John Roberts’ concurrence in refusing to reconsider the Third Circuit’s decision that CBS did not have adequate notice of the FCC’s policy regarding fleeting indecency in the 2004 Super Bowl incident, in which the Chief Justice stated that all broadcasters have notice of that policy going forward. The Commission also rejected the $7000 base forfeiture for an indecency violation set forth in the agency’s Forfeiture Policy Statement, noting that the broadcast at issue was “extremely graphic, lewd and offensive,” therefore justifying a higher forfeiture. The Commission noted that the station’s parent company, Schurz Communications, owns multiple media interests with annual sales revenues in excess of $127 million in 2013, thus indicating the licensee’s ability to pay.

As this is only a “Notice of Apparent Liability for Forfeiture,” WDBJ now has the ability to respond to the FCC as to why this forfeiture should be cancelled or reduced.