Indecency: Where Do We Go From Here?

by Womble Carlyle Sandridge & Rice, LLP
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In two recent articles, I discussed the Supreme Court indecency decision in the Fox case and the disappointment of the communications bar and of broadcasters in the failure of the Supreme Court to resolve the First Amendment Constitutional issue of whether the FCC can define and regulate indecent speech for over-the-air broadcasting. Since the court declined to reach the issue, broadcasters are left with a confusing array of cases, statements, forfeiture rulings and other precedent from which to try to make sense out of FCC policy in guiding their programming decisions. Suppose you really want to run the film Saving Private Ryan or a music documentary such as the Martin Scorsese Presents the Blues program with all the expletives intact. What happens if you take that risk?
Clearly you run the risk of attracting the attention of the FCC Enforcement Bureau. Even if the FCC in not listening, broadcasters are plagued with a number of “watchdog” groups who have enlisted armies of viewers and listeners to scour the airwaves looking for that special, and perhaps single, expletive. Examples include the Parent’s Television Council (http://www.parentstv.org/) and Media Action Center (http://www.mediaactioncenter.net/) whose legions are scanning the airwaves for content they might deem indecent.  Many of these organizations tutor their members on how to file complaints with the FCC and they have been active in FCC license renewal cycles.
How the staff decides to deal with a complaint, or even just a letter, may make a great deal of difference to the licensee. But, there is no guarantee you will even know about it. The FCC’s Enforcement Bureau does not investigate every complaint, given the magnitude of complaints that are filed every year.
However, whether it investigates or not, when a complaint is filed there is a strong probability that the Enforcement Bureau will place a hold on any Commission action that could benefit the station or its licensee, including action on a license renewal or an application for transfer or assignment of license. Frequently, the broadcaster will not learn of the complaint or the hold until several years after the complaint was filed when it seeks FCC action on an application, or when another complaint does get investigated. Then, at that later time, in order to obtain the desired action, the licensee will have to defend its actions or demonstrate why the complaint was never valid. For example, in one case, after trying to find out why there had been no action on an assignment of license application, an inquiry finally produced information that Enforcement had placed a hold on the station for an alleged indecent broadcast that had occurred a couple of years prior. I was able to demonstrate that the complaint had actually targeted another station about 100 miles away with a confusingly similar call sign. 
To get the hold released took an engineering exhibit to demonstrate that our station’s signal could not have been received at the location of the complainant and did not carry the syndicated program that was the subject of the complaint. Moreover, because the Commission guarantees anonymity to complainants who wish to remain anonymous, the licensee may never learn the name of the complainant or other facts necessary to rebut the claim.
A concern whether there are any issues with the station can typically be quelled with a written inquiry to the Enforcement Bureau asking whether complaints have been filed against the station and to determine whether there is anything requiring a response.
In many cases, the Bureau will send a letter of inquiry (LOI) to the station with a demand for response by a date certain. Whenever such a letter is received, it is important to fully investigate the matter and provide a candid response to the Commission. If additional time is required, the staff is generally quite cooperative in providing for a reasonable extension to investigate the case and provide a full response. The primary principle in communicating with the Bureau is always to be fully candid and responsive to a Commission request; there is no greater offense than to be less than candid in responding to a Commission inquiry.
FINES
If the Commission does find a violation it may decide to impose a forfeiture, or fine. Forfeiture proceedings are provided for under Section 1.80 of the rules. In determining the amount of the forfeiture penalty, the rules provide that the Commission will take into account the nature, circumstances, extent and gravity of the violations, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. The base forfeiture amount for transmission of indecent or obscene materials is $7,000.
Unfortunately, until the issue of indecency and how the Commission must respond to it is settled, there is little guidance for either the broadcaster or the FCC staff. The Commission receives thousands of complaints every year and does not have sufficient staff to investigate each one. To maintain a clean record, a broadcaster may wish to periodically examine its record at the FCC.
There is one further option for a broadcaster who requires Commission action on an application after a complaint has been filed and a processing hold has been placed on the station, the is one further option. The staff has authority to enter into a consent agreement under which the licensee essentially confesses judgment before the Commission, accepts a forfeiture obligation (fine) and obtains a grant from the Commission of the application. For this purpose, the Commission has drafted several form agreements which it will provide upon request. Be prepared, however, for rather harsh language and understand that the Bureau staff has been given almost no latitude for negotiation on either the language of the consent agreement or the consequences to the licensee. Generally, the only option other than accepting the consent agreement as presented by the FCC it is to simply walk and wait it out, as many have done. 
Now, is that indecent, or what?

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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