FCC Held Up Gray/Schurz Over Indecency Fine; PTC Wants Ratings Overhaul

Several communications attorneys told us it’s seen as unlikely that the commission would take substantive action related to indecency or the TV ratings system under Chairman Tom Wheeler. Regulating indecency hasn’t been “a big issue” for Wheeler, said John Crigler, a broadcast attorney at Garvey Schubert. “Why would he go on a witch hunt now?” Under then-Chairman Julius Genachowski, the agency updated the record on indecency and sought comment on a policy of not going after fleeting violations.. Crigler pointed to the FCC's lack of subsequent action in that docket over the following years as a sign that future action is unlikely.

The bureau wouldn't lift the hold against the Gray transaction unless Schurz paid the full amount, Goodman said. After the fine was first proposed in a March 2015 notice of apparent liability, Schurz protested being assessed the maximum fine for nudity contained in a small part of a screenshot from an adult film website that was aired during a news report, and filed an opposition to the NAL in June. The bureau required the full forfeiture amount before lifting the hold even though Gray TV agreed to accept responsibility for the matter, the proceeding still had two years on the statute of limitations, and Schurz is remaining in the broadcast business, Goodman said. “The inadvertent display of two seconds of nudity during a legitimate news story did not justify any forfeiture, much less the maximum forfeiture.” The bureau declined to comment.

The FCC’s action in assigning WDBJ the maximum fine has made broadcasters less likely to air indecent content, PTC President Tim Winter said Monday, marking the 20th anniversary of the TV ratings system and accompanying release of a PTC study chronicling what it sees as the failures of the current ratings system. The current ratings have “widespread systemic problems” and must be overhauled to be more accountable, consistent and transparent, Winter said. PTC will pursue a lobbying campaign at the FCC and Congress to get the ratings system changed, Winter said.

Several communications attorneys told us that despite the fine against WDBJ, there’s unlikely to be an appetite at the FCC or Congress to do so. Legislators are unlikely to take up such a high-profile issue in the midst of a presidential election, and Wheeler is also unlikely to do so, the attorneys said. With high-profile issues such the broadcast incentive auction in front of him, Wheeler may not have the time to tackle indecency, Pillsbury Winthrop communications attorney John Hane said. Getting involved with TV ratings or tackling indecency issues would raise a host of regulatory questions and First Amendment issues for the FCC, Crigler said. “Teeing up” a proceeding that asked questions about indecency-related matters without taking action would be a way for the commission to look as though it's taking action on the issue without getting stuck in a quagmire, one broadcast attorney suggested.

The PTC study found that regularly scheduled TV series that are rated TV-G ( appropriate for all ages) no longer exist during prime time, and that the amount of prime time TV-PG content is on the decline, Winter said. PTC also found that there is little difference between content rated TV-PG and content rated TV-14, appropriate for a 14-year-old. Winter said he had seen episodes of TV-14 rated shows that contained explicit language and sex. Broadcast content is never rated TV-MA no matter its content because it would discourage advertisers, Winter said. “TV networks rate their own shows, creating an inherent conflict of interest,” he said in a PTC news release.