Dereliction of Duty

How the Federal Communications

Commission Has Failed the Public

One day before the US House of Representatives was scheduled to hold a hearing to investigate the Federal Communications Commission's (FCC) failure to enforce federal indecency laws, the FCC handed down its first-ever fine against a television station in the continental United States. San Francisco television station KRON-TV was fined $27,500 for airing a segment during a local morning show featuring the stage troupe, "Puppetry of the Penis," during which one of the performers inadvertently exposed his penis.

Although the FCC conceded it was fleeting-less than a second-it also said it was "graphic and explicit," that it was "intended to pander to, titillate and shock viewers," and that the station had failed to take adequate precautions.

Prior to this incident, the FCC had only once before fined a television station for broadcast indecency. On March 30, 2001 the Federal Communications Commission handed out a $21,000 fine for television indecency to Telemundo of Puerto Rico. The Notice of Apparent Liability (NAL) cited three separate televised acts of indecency – ranging from a woman implying oral sex while she shared a bubble bath with a man, to raw sexual innuendo dealing with sexual intercourse and homosexuality. Neither nudity nor raw language was cited in the NAL.[1]

Incidents of this type are not restricted to radio, either. In January of 2003, the televised broadcast of the Golden Globe Awards on the NBC network included the following remarks by U2 singer Bono: "This is really, really, fucking brilliant." Over 18,500 complaints were filed with the FCC concerning this egregious 8:00 p.m. ET broadcast. Nevertheless, the FCC refused to take action against NBC and its affiliates. The Commission's Enforcement Bureau reasoned that because in this case the "f-word" was used as an adjective instead of as a verb, NBC did not violate the federal code. This decision was subsequently appealed and is currently being reviewed by the full Commission. Under mounting public and political pressure, FCC Chairman Michael Powell announced that he wanted to see the Enforcement bureau's decision reversed, but indicated no interest in fining the offending broadcasters.

These infrequent displays of regulatory backbone on the part of the FCC stand in stark contrast to its other recent actions. While listening to a WRLR FM radio broadcast of the "Lex and Terry Show," Angela Woods of Hueytown Alabama was offended by the graphic and vulgar description of female genitalia. When she called the station to complain, the management reported her displeasure to Lex and Terry. They then broadcast their hope that she would have "…a wreck and get killed on the way to work." Woods then filed an indecency complaint with the FCC. The FCC dismissed the complaint on the grounds that the broadcast comments were "not indecent because they are not patently offensive as measured by contemporary standards for the broadcast medium work."[2]

Why is it that in the entire history of the FCC, only two television stations have ever been fined for airing indecent material when every night American homes are under siege from the broadcast networks, bombarded with flagrant and repeated instances of partial nudity, explicit sexual content, raw language, and graphic violence? Why does the FCC ignore its Congressionally mandated role to enforce broadcast decency standards over the publicly owned airways? Why does the FCC refuse to enforce statutes the courts have repeatedly upheld as a reasonable balance between the First Amendment's right to free speech and the compelling public interest to protect the well-being of its youth?

I. A Brief Overview of the Federal Communications Commission, its Structure and Functions

The FCC was established by the Communications Act of 1934 as a U.S. government agency independent of the Executive Branch, directly responsible to Congress. The act combined three government agencies -- the Interstate Commerce Commission, the Federal Radio Commission, and the Postmaster General -- into one agency that would regulate all interstate and international communication. Today, the FCC regulates television, radio, wire, satellite and cable in all of the 50 states, the District of Columbia, and U.S. territories.

Five Commissioners, appointed by the President of the United States for a term no longer than five years, unless they are serving out an un-expired term, direct the FCC. The President selects one Commissioner to serve as Chairperson. To maintain a degree of political independence, no more than three of the commissioners may belong to the same political party. Additionally, none of the commissioners may have an interest in any business related to their work at the FCC. President George W. Bush appointed all five of the current commissioners, and three of the five are Republican Party members. The Commissioners supervise all FCC activities, delegating responsibilities to Commission Bureaus and Offices.

There are six Bureaus and ten staff Offices. The Offices provide specialized support services such as personnel, legal, and administrative functions. Bureaus and Offices regularly share expertise in addressing FCC-related issues. The Bureaus and The Office of Engineering and Technology process applications for licenses, analyze public complaints, conduct investigations, develop and implement regulatory programs and rules, and participate in hearings, among other things. The Enforcement Bureau is responsible for regulating television content, promoting telephone competition, fostering efficient use of the public broadcast spectrum, and enforcing FCC rules and license authorizations.

II. The FCC's Role in Fighting Indecency and Obscenity on Television

The FCC Enforcement Bureau's Investigations and Hearings Division handles citizen complaints alleging broadcast of obscene and/or indecent material.[3] In order to better understand the FCC's role in enforcing decency standards, one must understand the definitions for indecency and obscenity used by the FCC. Federal Law prohibits the utterance of "obscene, indecent, or profane language" by means of radio communication [18 USC §1464]. Violations of that statute can be punished by fine or imprisonment. The FCC's authority to enforce this law is set forth in 47 USC § 303.

Obscenity:

It is a violation of law to broadcast obscene programming. Obscene programming – as defined by Miller v. California (1973) -- follows a three-pronged test. To be considered obscene, the material must contain the following elements:

1. An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest.

2. The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law.

3. The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.[4]

Obscene material is not protected by the First Amendment of the Constitution and can be banned, and the courts have upheld this standard. The FCC states this prohibition clearly: "It is a violation of federal law to broadcast obscene programming at any time."[5] Nevertheless, it is difficult to define a condition as subjective as "community standards."

Indecency:

On the other hand, indecency is defined differently, and although it is protected by the First Amendment, it can be restricted. Unless the programming meets the following definition, the FCC can take no action:

The FCC has defined broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.[6]

Once the FCC deems that the offensive material meets this definition, the Commission must choose the least restrictive means to regulate that speech in the future.[7] It is interesting to note, however, that even with these narrow and somewhat restrictive parameters, the courts have consistently upheld the Commission's authority to regulate indecent speech.[8] Supreme Court Justice John Paul Stevens described the First Amendment protection, for indecent language in the case of FCC v. Pacifica Foundation, 438 U.S. 726 (1978):

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.[9]

Unfortunately, with the pervasive violence on America's public airwaves, violence is omitted from the above definition, and not considered indecent by the rules regulating the Federal Communications Commission.

III. How the FCC Enforces Decency on Television

FCC indecency standards and enforcement capability flows from the aforementioned 1978 Supreme Court case FCC v. Pacifica Foundation, 438 U.S. 726. In Pacifica the Supreme Court held that the government could constitutionally regulate indecent broadcasts. The Pacific Radio Corporation was found by the FCC to have allowed the broadcast of indecent and offending material – a recording of George Carlin's now infamous "Seven Dirty Words" monologue. The Supreme Court upheld the FCC disciplinary action against the Pacifica Foundation.[10]

The definition has remained substantially unchanged since the time of the Pacifica decision. In 1988, a federal appellate court ruled that the FCC's definition of indecency was constitutional and not inherently vague as claimed by the broadcasting industry (Action for Children's Television v. FCC, 852F.2d 1332, D.C. Cir. 1988). Most recently, in Reno v. ACLU, 521 U.S. 844 (1997), the U.S. Supreme Court struck down an indecency standard for the Internet but did not question the constitutionality of the FCC's broadcast indecency standard.[11]

IV. Enforcement Obstacles

The Safe Harbor

Only indecent material broadcast between the hours of 6:00 a.m. and 10:00 p.m. is subject to FCC enforcement. The hours between 10:00 p.m. and 6:00 a.m. is referred to as "safe harbor" as stated in rule 47 C.F.R. § 73.3999.

This restricted time frame was instituted to avoid broadcast during times of the day when there is a reasonable risk that children may be in the audience. These times, however, do not apply to cable networks as determined by the Supreme Court Case, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

Case Study

A 24-Hour Ban on Indecency

In the late ‘80s and early ‘90s, Congress worked closely with the FCC to eliminate and/or minimize "safe harbor" hours.

In 1988, Senator Jesse Helms attached a rider to an appropriations bill to require the FCC to implement 18 U.S. Code § 1464 banning indecent broadcasts completely – a 24-hour ban. He reasoned that it was necessary because children have access to the television and radio all hours of the day. The bill passed both houses of Congress and President Ronald Reagan signed it into law in December of 1988. The FCC began enforcing this Congressional mandate, but the D.C. Circuit Court stayed the ruling after several groups petitioned the Court to have the "safe harbor" re-instated.

During the stay, the FCC continued to ban indecent programming between the hours of 6:00 a.m. – 10:00 p.m. The Commission also requested that a team of staff study justifying the 24-hour ban. In 1990, after receiving the staff's report stating a clear need for the ban based on the proliferation of technology available to children, [12] the Commission unanimously voted to re-instate the 24-hour ban. Once again, this position was challenged in the courts. D.C. Circuit Court Judge Abner Mikva required the FCC to end the ban, stating that the 24-hour ban precluded adults from enjoying Constitutionally protected indecent programming.

Again, Congress stepped in and after much wrangling and Court activity, it was determined that "safe harbor" should remain the prescribed hours of 10:00 p.m. until 6:00 a.m. Thus, the FCC was allowed to enforce indecency laws between the hours of 6:00 a.m. and 10:00 p.m.[13]

Viewer Complaints:

The FCC does not actively monitor television broadcasts for indecency violations – nor does it keep a record of television broadcasts. It relies exclusively on documented indecency complaints from television viewers. Therefore the burden of proof lies squarely -- and heavily -- on the offended complainant.

Chairman Michael Powell has stated emphatically that it is absolutely false that a complainant needs to provide a transcript of the offending show. However, a review of the FCC's website says otherwise.

In order for a complaint to be processed, the complainant must provide:

1) A full or partial tape or transcript or significant excerpts from the program;

2) The date and time of the broadcast, and

3) The call sign of the station involved.[14]

The FCC specifies that notwithstanding how the complainant provides the information (whether in transcript form or a tape recording of the alleged televised indecency), it must be detailed enough so the Commission can determine the context of the entire broadcast, as well as the legitimacy of the complaint.

Subject matter alone is not enough for the FCC to declare material indecent or obscene. "Thus, for example, stating only that the broadcast station ‘discussed sex' or had a ‘disgusting discussion of sex' during a program is not sufficient. Moreover, the use of specific, isolated words is not determinative of whether material is indecent."[15]

This however, does not appear to be the original intent in considering context. In a letter to PTC President Brent Bozell dated December 5, 2003, Commissioner Kevin Martin stated: "Our concept of what constituted ‘indecent' material changed from the ‘Seven Dirty Words' because the Commission thought that definition was too narrow. We took context into account in order to broaden what would constitute indecent material."

Instead, the FCC uses context to excuse what could otherwise reasonably be considered indecent material. The recent FCC ruling on the Bono incident reflects this attitude and has led Reps. Doug Ose (R-CA) and Lamar Smith (R-TX) to introduce legislation in December of 2003 to make eight words and phrases indecent no matter how used.[16]

Case Study

One Commissioner's Plea to Simplify Filing Requirements

In January of 2001 the FCC dismissed a complaint from a woman in Pennsylvania alleging that full-frontal nudity was shown on a news program at 8:53 a.m., without advanced warning from the broadcast station.

The Enforcement Bureau dismissed the complaint because the woman did not provide "tape, transcript, or significant excerpts," of the broadcast. Claiming that because of the Constitutional protections afforded to indecent speech, "the FCC generally requires complainants to provide a full or partial tape or transcript or significant excerpts of the program."[17]

Outraged by the Enforcement Bureau's finding, Commissioner Gloria Tristani (1997-2001) said the burden of proof was unfairly placed on the complainant. She also noted that the First Amendment to the Constitution has nothing to do with evidentiary standards when filing a complaint. Tristani stated:

The First Amendment does not require a certain level of proof in a citizen's complaint to the FCC. The FCC is free to gather evidence however it wants – from complainants or from broadcasters.

These complaint filing requirements (tape, transcript, or significant excerpt) are not only unrelated to the First Amendment, they are disconnected from reality. People do not normally tape or transcribe the programs they are watching or listening to, and thus it is unfair to expect people to file such material with their complaints.[18]

During her tenure with the FCC, Commissioner Tristani was a committed ally in the fight against televised indecency. In a final statement before resigning from the Commission, she implored the Commission to simplify the complaint process and take seriously the enforcement of punishments against stations that engage in indecent broadcasting:

The Commission needs to get serious about enforcing the law enacted by Congress to limit indecent material on the airwaves that reaches our children. The courts have repeatedly held that the Commission's indecency enforcement activities do not violate broadcasters' First Amendment rights because our rules are designed to protect children. Indecency enforcement can require the agency to make difficult judgment calls regarding language and context, but that is no reason for the Commission to shrink from enforcing the law. A good place to start would be making the complaint process more consumer-friendly.[19]

Taping Requirement:

In his first official action at the FCC, newly appointed FCC Commissioner Michael Copps (2001 – present) suggested that broadcasters be responsible for keeping recordings of their programming to aid the public and the government with enforcing indecency statutes. "I want to ensure that the Commission investigates rigorously the complaints filed by citizens. Americans have the right to expect their government to enforce the indecency laws of the United States."

Although advocated by Commissioner Copps, other FCC Commissioners have not endorsed requiring broadcasters to maintain recordings of their programming.

Viewer Despair:

For years, viewers have watched television standards erode. The transition from the days when Rob and Laura Petrie on the Dick Van Dyke Show could not be seen sleeping in the same bed, to programming today that depicts oral sex and decapitations has led many viewers to despair and conclude that nothing can be done to halt the decline in standards of decency.

"What's really happening now is a transformation to the daily normalization of this," says Robert Thompson, professor of media and pop culture at Syracuse University, "It's commonplace to hear erection jokes on Friends at 8 o'clock; even gentle little programs like Everybody Loves Raymond have the kind of stuff, when it played on Three's Company twenty years ago, made the PTA go completely ballistic."[20]

If the public is even aware of the FCC's function in the fight against televised indecency, it must be frustrated knowing that only one U.S. television station has ever been fined for indecent or obscene programming.

V. A Breakdown in Enforcement

The FCC grants operating licenses only to local broadcasters and not to national broadcasters. Therefore, the FCC can only take action against the affiliate by revoking a station license, imposing a monetary forfeiture, or issuing a warning for the broadcast of indecent material.

The U.S. Supreme Court has affirmed the FCC's congressionally mandated power to regulate indecency and prohibit obscene television broadcasts through 18 U.S.C.§1464. And, although thousands of Americans lodge indecency complaints against various television shows, the FCC refuses to act responsibly.

Shady Accounting Practices at the FCC:

While the FCC acknowledges that indecency complaints rose significantly between the second and third quarters of 2003,[21] they still take no action to remedy the outrage. In 2003, the Parents Television Council and its membership lodged more than 100,000 indecency complaints against numerous prime-time television shows, made-for-television movies and special events.

Case in point: The FCC reported that in the second quarter of 2003 it received only 351 complaints about broadcast indecency, however in that same period; PTC members alone filed over 8,000 complaints. The reason for such egregious oversights can be found in the FCC protocols – the FCC bundles the complaints it receives regarding a specific broadcast as one consolidated complaint.

Case in point: The FCC counted the18,000 complaints PTC members registered with the FCC following the January 2003 Golden Globes Bono incident as a single complaint.

Case Study

The Victoria Secret Fashion Show 2002

The Victoria's Secret Fashion Show aired during prime-time November 20, 2002 on CBS. Members of the Parents Television Council filed more than 4,000 complaints[22] against this broadcast on the grounds that the hour-long broadcast featured near-nude models, which many believed offended accepted standards of decency. One complainant to the FCC called the fashion show, "a high-tech strip tease."[23] A spokesperson for the FCC's Consumer and Government Affairs Bureau was overwhelmed by the public response to the show.[24]

The fashion show garnered 10.5 million viewers and was rated TV-14. CBS spokesman Chris Ender said, "Does it push the envelope? Sure. But everyone knows what Victoria's Secret fashion show is. With the advance publicity and the content advisory, every viewer will be armed with information to make their own choice."[25]

Several CBS affiliates made their own choice by not airing the show during prime time when young children could be in the audience. "I don't believe it meets the standards of our communities in the time period offered," said Jeffrey Anderson, general manager for Fisher Broadcasting, Inc, in Idaho Falls, Idaho. "It's family viewing hour."

Although the FCC received scores of complaints for the same show when it appeared on ABC in 2001, it ruled that the complaints did not demonstrate that the sexual aspects of the material were "so graphic or explicit as to be patently offensive." [26] The FCC has yet to rule on the indecency complaints filed against the CBS 2002 Victoria's Secret Fashion Show.

Even though more than 6,000 Americans filed indecency complaints regarding this program – the FCC counts them as one complaint.

Televised Indecency is Not Taken Seriously at FCC:

The FCC Web site's front page makes no mention of its role in the fight against programming indecency. Nor does the Web site's "About the FCC" section refer to its responsibility of fighting indecency and obscenity. What it does mention though is everything else the FCC regulates and enforces, such as cell-phone deregulation, broadband competition, and spectrum use. Maneuvering the Website is easy, but locating information on how to file indecency complaints or the FCC's enforcement role is difficult. This difficulty is also present in the FCC's 2002 Annual Program Performance Report. The 51-page document contains exhaustive data concerning the FCC's goal to "increase competition in all communication markets and to deregulate where appropriate to promote competition."[27] However, the document contains only data concerning common carrier grievances with scant mention of viewer complaints concerning broadcast subject matter. Only on page 29 is the agency's response time average for the "111,528 informal consumer complaints" described.

Clearly the FCC is interested in enforcing and regulating other matters.

Case Study

Strict Fine & Jail Time

William Flippo, of Florida, was sentenced in September, 2002 to fifteen months confinement and levied a $25,000 fine for unlicensed operation on amateur radio frequencies and intentionally interfering with amateur radio communications. Following his fifteen-month sentence, Flippo will be required to serve a one-year period of supervised release. All for interfering with amateur radio frequencies in Florida.

While the law is important to uphold because Amateur Radio Operators can provide valuable community service in times of disaster – especially when no other means of communication may be available – Mr. Flippo was not interfering during a time of crisis.

It would be nice if The FCC would be as resolute in enforcing and collecting the fines it has assessed against offending broadcasters as it was with Mr. Flippo. Unfortunately, when fined by the FCC, the broadcast licensee has the legal right to refuse to pay the fine. When that occurs, the FCC turns the matter over to the Justice Department for judicial action. However, the Justice Department rarely goes to court to collect these FCC fines because they are deemed too small to warrant the attention of the department's legal staff. Thus, the statute of limitations runs it course, and the station's record remains unblemished when its license comes up for renewal.[28]

Indecency Complaints Not Dealt With in a Timely Manner:

Congress, the courts, and the FCC are all in agreement that broadcast indecency can be identified by any of the characteristics:

The explicitness or graphic nature of descriptions of sexual or excretory organs or activities;
Whether the material dwells on or repeats at length such subjects;
Whether the material appears to pander or is used to titillate;
Whether the material is presented for shock value.[29]

Undoubtedly, many viewers believe that the FCC is actively monitoring television broadcasts, and therefore anything that makes its way over the broadcast airwaves must be sanctioned by the FCC, leaving them to ask, "If what I saw on television tonight isn't prohibited, then what does the FCC consider indecent?" The viewer must then notify the FCC of his/her complaint and include a tape or transcript of the offensive material, the name of the station it aired on and the date and time of the program. The material is sent to the FCC and then the offended complainant waits. And waits. And waits. Commissioner Martin believes these complaints must be dealt with in a more timely fashion:

I also support your request that the Commission commit to resolving indecency complaints within a specific time frame. In fact, in a speech I gave in February of 2002, I called on the agency to place such deadlines on all of our agency complaints. All parties – consumers as well as the companies we regulate – deserve timely responses to the issues that concern them.[30]

Unresolved Complaints:

Since 1989 the PTC has taped every prime time program aired on network television, carefully documenting and transcribing all instances of violence, sexual content, and foul language. This gives our membership the necessary resources to file indecency complaints with the FCC. Here is a truncated listing of PTC indecency complaints and the responses received from the FCC:

Leap of Faith

This program aired on NBC, February 28, 2002 at 8:30 p.m. PTC membership filed 2,341 complaints with the FCC citing the overly sexualized content of the plot. The program was full of conversations laden with sexual innuendo (much like what Telemundo Puerto Rico was fined for) and abusive language (whore, bitch, bastard).