FCC's Full Frontal Assault on TV

In a single stroke that has television's creative community seething, Federal Communications Commission Chairman Kevin Martin gave notice that his agency will clean up the broadcast airwaves, starting with TV.

The relative quiet that had marked his first year in office was shattered last week by a mortar round aimed at the TV industry. The damage from the FCC's latest set of indecency rulings: more than $4 million in fines, including a record $3.6 million proposed fine against CBS' Without a Trace for sexual situations—not nudity, not language—and either fines or findings against 10 stations for airing shows that were indecent or profane. That's more than all the TV shows that have ever been fined for indecency put together.

Four shows were ruled indecent and/or profane but were not fined, and dozens of other complaints were rejected.

More than anything, the rulings reflect the thinking of the TV industry's new sheriff, Martin. If the ruling released last week wasn't as comprehensive as some had hoped, it underscores the current FCC's strict interpretation—however subjective—of the laws on the books.

As Hollywood tries to decipher the federal government's Byzantine findings, writers and show creators say the document has already begun to chill their appetite for edgier fare. Some stations and networks will appeal. CBS, for one, vowed to aggressively fight the charge for the recent fine and the more famous $550,000 fine for Janet Jackson's breast-baring dance at the Super Bowl two years ago, and the network will likely go to court to defend itself against such charges.

The report, which addresses “hundreds of thousands of complaints” on programs airing between February 2002 and March 2005, said the cases further refine the FCC's standard. The agency said it hoped to give “substantial guidance” to TV stations and networks. “I share the concerns of the public, and of parents in particular, that are voiced in these complaints,” Martin said.

With these rulings, his FCC appears to have allied itself with anti-indecency activists. One such group, the American Family Association, has even created an online “Thank You” note it is urging members to send to Martin.

The FCC report stated that “the decisions repeatedly demonstrate that we must always look to the context” to determine indecency. To critics, it was more of “I'll know it when I see it.” In TV's capital cities, Los Angeles and New York, TV executives carped that last week's patchwork of rulings confuses, rather than clarifies, what can be seen and heard on TV. The word “dickhead,” for example, is OK, but “bullshit” isn't. And broadcasters can no longer hope to compete with cable by bleeping and pixelating their way to edgier fare. In several cases, the FCC proved that no nudity or profanity is necessary if the context of the material is indecent.

For example, in Con El Corazón En La Mano, shown on Telemundo Oct. 9, 2004, a man rapes a woman in a public restroom while a second man prevents her from escaping. NBC Telemundo argues the scene is neither explicit nor graphic because no nudity was involved. But the FCC rejects that claim and NBC's secondary claim that the rape scene is analogous to Saving Private Ryan, for which the FCC allowed graphic language, because it was “critical to portraying serious incidents realistically.” The FCC concluded that NBC had not proved that the explicit rape scene was essential. NBC Telemundo was fined $32,500, even though it had included a warning about the upcoming scene.

Innuendo or even pixelated nudity, as evidenced in a episode of The Surreal Life 2 in 2004, can be considered indecent. The FCC said that “the mere pixelation of sexual organs [which includes breasts, according to the agency] is not necessarily determinative in our analysis.”

Reality producer Mark Burnett, who's responsible for CBS hit Survivor, says he has decided not to try to push the envelope. “Survivor is a family show not on at a late hour, so I need to watch it. This all began with Janet Jackson,” he adds, “and I've been cutting with that in mind.”

All the commissioners supported the indecency actions with the exception of Democrat Jonathan Adelstein, who dissented from the language penalties, calling them “dangerously off the mark.” He defended the Martin Scorsese documentary The Blues: Godfathers and Sons, which included numerous uses of the “s-word” and “f-word,” both of which are deemed vulgar and graphic. To critics, the decision seemed at odds with the FCC's previous rulings that f-words in both Saving Private Ryan and Schindler's List were not indecent in context.

The FCC tried to cushion the punch with its decision to start giving more weight to community standards. It said it would fine only the stations that had a complaint filed against them, rather than multiplying the fine by the number of stations that carried the broadcast. Although that appeared to cut broadcasters a break and recognized the community-standards element lost in its earlier policy, it may be a distinction without a difference. In a world of mass e-mailings, it is easy enough to drum up complaints against lots of stations.

There were complaints against 111 CBS stations over Without a Trace, many generated by a Parents Television Council (PTC) online complaint form. “We're just giving voice to hundreds of thousands of viewers whose standards of decency are being violated,” says PTC Director of Corporate and Government Affairs Dan Isett.

Still to be decided is the FCC's reconsideration of the Golden Globes decision on Bono's f-word that served notice that language was in the FCC's sights, as well as the proposed $1.18 million fine—the previous record against one show—targeting Fox's Married By America, for pixelated sexuality. A package of radio indecency actions—which are “percolating,” say several FCC sources—will be the next shot in the war on content.

Writer/producer Tom Fontana (one of the creators of the gritty Homicide) is amused that the FCC order comes a week before the March 22 debut of his WB series, Bedford Diaries, about a group of students in a human-sexuality class who keep diaries of their sexual experiences. “It has always been a fight to do shows that are pushing the envelope,” he says. “You're trying to find that balance between not being offensive and telling the whole story.”