CBS Defends Inaction on Without a Trace

Network Claims It Didn’t Think Action Was Necessary on Scripted Drama

By John Eggerton -- Broadcasting & Cable, 10/22/2007 2:22:00 PM

CBS said it didn’t take any remedial action after the Federal Communications Commission found drama Without a Trace indecent back in 2006, saying it didn’t think it had to.

The network was responding to questions posed by the FCC in June after the Parents Television Council in August 2006 challenged the license of CBS' KUTV(TV) Salt Lake City over the episode and that lack of action.

CBS did not suspend any station employees nor conduct an internal investigation after the FCC proposed a record $3.6 million fine (called a "notice of apparent liability) against CBS and other station owners for airing an episode of Without a Trace that contained a teen-orgy scene the FCC decided was indecent. (CBS has an outstanding appeal of the fine that has been pending for a year-and-a-half.)

That's according to a two-page letter CBS delivered to the FCC late Friday, ahead of a midnight deadline. The network was trying to explain what appeared to the PTC to be noncompliance with an agreement CBS parent Viacom struck with the commission in 2004 to expunge a raft of indecency complaints.

CBS said it did not think it had to take various steps -- suspend employees, investigate the incident -- spelled out in the agreement because the NAL was against a scripted drama, rather than a live, unscripted show like a morning radio program or awards show that an employee would need to bleep or edit.

CBS also said that if the FCC disagreed with that interpretation, CBS' failure to do so had been at most an "unintended omission" in an otherwise extensive, good-faith effort to comply with the agreement.

That effort, the network added, included installing editing systems at radio stations, audio and video delays at TV stations and training staffers about compliance with indecency laws.

The PTC said CBS violated the terms of a Nov. 23, 2004, consent decree, in which CBS parent Viacom paid $3.6 million to wipe out all the indecency complaints and proposed fines against CBS except the Super Bowl Janet Jackson/Justin Timberlake reveal, which CBS appealed in federal court. One of those indecency complaints had been against that orgy scene.

Only a few weeks after the decree had wiped out that complaint, CBS aired the same episode again, and an incensed PTC filed a new complaint. In March 2006, the FCC issued an NAL finding the Trace episode indecent.

According to the terms of the consent decree -- specifically subsection (f) of paragraph 8, according to the commission -- "If a Viacom-owned station receives a notice of apparent liability for a broadcast occurring after the effective date [Nov. 23] which relates to violation of indecency laws, all employees airing and/or materially participating in the decision to air such material will be suspended and an investigation will immediately be undertaken."

The PTC targeted KUTV for the license challenge in part because it was a CBS-owned station and in part because it was in Utah, "where the episode’s airing is ‘probably more demonstrably in violation of community standards,’" a PTC spokesman said at the time of the initial filing against the station.

In its initial response to the PTC complaint about decree compliance, CBS said it did not think the broadcast was indecent or that its employees had done anything wrong by airing it. But according to the terms of the decree, at least as the PTC read it, that was essentially immaterial since the remedial actions are triggered by what the FCC thinks is indecent -- the NAL -- not whether CBS agrees or not. In fact, CBS challenged the fine -- a challenge the FCC has yet to resolve after more than one year.

The FCC in a June 27 letter asked CBS to say whether it had launched an investigation or suspended any employees, and if not, to explain how that could be squared with the language of the decree.

After a series of extensions for an answer that had initially been due in early July, CBS said in its answer Friday that it thought the consent decree language applied to "live, unscripted programming," since the vast majority of complaints dealt with that programming (mostly radio, notably Howard Stern).

"The automatic suspension requirement of paragraph 8 (f) seems to make sense when applied to live programming in which an employee wither might utter on-air something arguably inappropriate or indecent, or might negligently fail to ‘bleep’ an arguably inappropriate or indecent utterance by a nonemployee who is a guest on a program," CBS associate general counsel Howard Jaeckel said in the letter. "The requirement, however, seems inappropriate when applied to scripted programming, which is reviewed in advance, at every stage of production, by standards and practices personnel."

"I don't remember the clause in the consent decree that said there is no problem if it is an unintended omission." said PTC President Tim Winter told B&C. "As a matter of law they had an obligation to fulfill it and they did not do so. I think there should be ramifications." 

This was a negotiated settlement that they crafted and entered into. It was their remedy and they are ignoring the remedy that they themselves created. I think they should be taken to task for it.

If the FCC concludes that CBS did violate the consent decree, KUTV's license could be designated for a hearing before an administrative law judge, who would decide whether or not CBS gets to keep the license. Losing a license is virtually unheard of.

Winter says that the FCC should either designate that hearing, or er-open the thousands of complaints wiped away by the decree.

CBS is selling KUTV, but the FCC has yet to OK the transfer, which can't happen while there is an outstanding complaint against the station. CBS made its case in a two-page amendment to its license-renewal application for KUTV.