Backlogged Indecency Complaints Led Some to Expire

The five-year statute of limitations for commission action expired in a small number of instances without a fine or conclusion, broadcast lawyers said. In other cases, they said tolling agreements that let stations with pending indecency complaints get license renewals -- often so they could be sold -- lapsed, making moot those cases. The FCC had been agreeing to tolling agreements of two or three years’ length, which wasn’t long enough for the regulator to finish work on them, industry attorneys said. The agency more recently has asked licensees to agree to tolling periods of indefinite length to prevent such lapses, they said.

The Enforcement Bureau “has undertaken a comprehensive review of the backlog of indecency cases to develop a plan of action to address them,” a commission spokesman said. “The FCC is committed to fair and appropriate indecency enforcement, and has taken and will take action where clearly warranted, consistent with the First Amendment and other applicable legal standards.” FCC General Counsel Austin Schlick declined to comment.

The FCC may not act on many complaints until it gets court decisions, some lawyers who do indecency work said. “I don’t think much of anything will happen until we get rulings from the 2nd and 3rd Circuits,” said lawyer John Crigler of Garvey Schubert. “My guess is there will be some attrition that happens just by passage of time but that the commission won’t do anything very dramatic until the course is clear one way or the other from the courts.” Broadcast lawyer Scott Flick of Pillsbury Winthrop said of indecency policy in general that there’s much “up in the air."

Commissioner Robert McDowell is among those frustrated at the extent of the complaint pileup, saying during a Wednesday interview it’s among the things the agency ought to act on (CD June 17 p1). “I have said for a long time and now, I think through three chairmen, that as a matter of good government I would like to see the broadcast indecency complaints … worked on,” he said. Of 1.44 million complaints relating to more than 13,000 shows, he said some “are older than at least one of my children."

The general counsel’s office had conducted reviews of indecency cases during the tenure of Michael Copps as interim chairman and under current Chairman Julius Genachowski, agency officials said. Recent court cases were among the reasons that prompted the review, they said. It’s unclear what action will occur as a result of those examinations, commission officials said. Cases are pending at the 2nd U.S. Appeals Court in New York against the 2002 and 2003 Billboard Music Awards on Fox and at the 3rd Circuit in Philadelphia against CBS for airing Janet Jackson’s nipple for a split second during the 2004 Super Bowl. The Fox case was sent back to the 2nd Circuit by the Supreme Court, which said the commission didn’t act wrongly.

"The overwhelming delay in the process of these complaints” is “simply inexcusable,” said Public Policy Director Dan Isett of the Parents Television Council, which encourages members to file complaints on shows the group believes violated indecency rules. He’s unaware of any complaint filed by members at the group’s behest in recent years that has been resolved. “I think there is some low hanging fruit,” Isett said. “If they are invalid on their face, if they are about cable programming or inside the safe harbor” when sexually explicit material or cursewords can be aired late at night and early in the morning, “those should still be dismissed.” That likely still leaves hundreds of thousands of complaints that need to be adjudicated, he estimated. The commission often gets multiple complaints over one show.

The FCC seems to have largely paused on taking final action on indecency complaints in light of the court cases, lawyers representing radio and TV stations said. They said a notable and recent exception is this month’s Enforcement Bureau $25,000 notice of apparent liability to Fox Television Stations for not fully responding to a letter of inquiry on more than 100,000 complaints on a January episode of the American Dad cartoon in which a man masturbated a horse (CD June 4 p11). By sending letters of inquiry to all stations carrying Fox programming, which Flick said number 235, the commission seems to be trying to exert pressure through affiliates on the network to respond to the complaints, lawyers not involved in the case said. Fox may be setting up the case to go to court, they speculated. A company representative declined to comment.

The commission appears to have deviated from precedent in sending indecency inquiries to all stations carrying Fox programming without attaching complaints against each one, said Northwest Broadcasting CEO Brian Brady. The four Fox affiliates owned by Northwest didn’t receive copies of such complaints, said Brady, chairman of that affiliate board for that network. “I've talked to over 40 television stations across the country, Fox affiliates, and none of them have told me they've gotten a complaint,” he said. “It seems to me that’s outside the past practice of the FCC. They've said they would only do this if there was a complaint filed.” Given the volume of complaints received on American Dad, the commission likely got one from a viewer in each market, even if it didn’t attach them to the inquiries, said Isett.

The FCC’s message to Fox affiliates: “We're going to get our pound of flesh,” said Flick. “The real challenge” of the letters sent to all affiliates is they have 30 days to respond, he continued. “You can’t really sit back and say `I'm sure this will be taken care of by the network'” and “you have to be spending your resources for the quite plausible possibility that you will be filing” a response, he said. “Clearly the affiliates will not be happy about this.”