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.
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."
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.
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.
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."
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.
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.
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.
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.
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.
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.
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, 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.
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.
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."
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.
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."
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.
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.
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."
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,
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
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."
A spokesperson for the FCC's Consumer and Government Affairs Bureau was
overwhelmed by the public response to the show.
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."
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."
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."
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.
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