FCC SPELLS OUT BROADCAST INDECENCY POLICIES
Primary factor in FCC decision whether broadcast material is indecent is “whether the material appears to pander or is used to titillate” or was “presented for its shock value,” FCC said in policy statement (FCC 01-90) on indecency. FCC Comr. Tristani predicted statement would become “how-to manual for those licensees who wish to tread the line drawn by our cases.” Comr. Ness said statement wouldn’t solve problem and urged broadcasters to reinstate voluntary code of conduct. Comr. Furchtgott-Roth said FCC should deregulate broadcast content entirely. NAB was still reviewing document at our deadline.
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Statement didn’t appear to make any significant changes in FCC indecency rules, instead used examples of previous Commission indecency decisions to highlight principles it would use in deciding on indecency complaints. Statement was required by 1994 indecency settlement with Evergreen Media, and Furchtgott-Roth said he was amazed it took so long to comply with terms of that agreement. Tristani said FCC really didn’t need to issue statement at all. Statement was adopted March 14, but not released until Fri.
Policy statement sets several guidelines for indecency complaints that FCC is likely to uphold: (1) It retains policy that complaint must be well-documented, with complete tape or transcript of broadcast, as well as information about date, time, call letters. (2) Broadcasts, to be indecent, must describe or depict sexual or excretory organs or activities and must be “patently offensive as measured by contemporary community standards for the broadcast medium.” In footnote, Commission said that community standards were used to ensure that judgment wasn’t based on “its effect on a particularly sensitive or insensitive person or group.”
(3) “Full context” of material was critical to determining whether material was offensive. Commission said, for example, explicit language might not be offensive in newscast but “sexual innuendo that persists and is sufficiently clear to make the sexual meaning inescapable might be.” (4) Other key factors to be considered include “explicitness or graphic nature” of material and whether material “dwells on or repeats at length” descriptions of sexual or excretory activities. (5) Long list of examples agency used shouldn’t be used to compile “meaningful selection of words or phrases” that might be considered objectionable, like so- called “7 dirty words” of George Carlin quarter-century ago. (6) Absence of “pandering or titillating nature” won’t necessarily prevent indecency determination.
Policy statement could establish “false safe harbors” for indecent programming, Tristani said in her dissent. She said she wasn’t aware of any “rush of inquiries” by broadcasters for clarification of indecency rules and settlement of single indecency complaint “should not compel the FCC to adopt our most significant industrywide policy statement on this subject, particularly when doing so does not serve the public interest.”
Policy statement alone “will not solve the festering problem of indecency on the airwaves,” Ness said, but broadcasters can. In addition to urging them to restore code of conduct, she said Bush Administration and Congress should remove any antitrust impediments to code. She said FCC should make its complaint procedure more user friendly.
Any Commission action to enforce indecency guidelines “would set the stage for a new constitutional challenge” to content regulation, Furchtgott-Roth said. Content regulation is based on Red Lion and Pacifica court decisions, he said, but “their continuing validity is highly doubtful” because broadcasting no longer is dominant medium: “As alternative sources of programming and distribution increase, broadcast content restrictions must be eliminated… Broadcast deregulation is not only warranted, but long overdue.”