Putting Our Finger On FCC Indecency Policy

There was lots of chatter and twitter Monday over the bird flipped during the Super Bowl half-time show on NBC Sunday and whether that could possibly draw the FCC’s attention as a violation of indecency policy.

Currently, there are over a million complaints pending due to the current court challenges and ongoing uncertainty about the FCC’s ability to enforce its policy, but the middle finger could fall under that current policy since the FCC has said that if they know what you mean, and the middle finger definitely conveys a specific four-letter command, the fact that the words, or images are not literally conveyed is not necessarily a shield.*

For example, it has said that blurring and bleeping language is not an absolute protection if it is clear what the person is saying.

The FCC had no comment at press time on whether any complaints had been lodged with the enforcement bureau. At least theoretically, the number of complaints should not matter, since the decision is about whether or not it meets the FCC standard, which is a “know it when I see it” judgment call.

The finger flip and either mouthed or drowned-out F-word by M.I.A. was reminiscent of the Janet Jackson reveal in 2004 that prompted a backlash in Congress and toughening of FCC indecency fines and enforcement. NBC apologized for the finger flip, saying its tape delay, which broadcasters instituted for many live events following that crackdown, failed to catch it. It also pointed out that the NFL was responsible for the half-time entertainment. “The NFL hired the talent and produced the halftime show,” said the network in a statement. “Our system was late to obscure the inappropriate gesture and we apologize to our viewers.”

The halftime was billed on screen as an NFL Network production. The league took greater control over the entertainment after their avowed embarrassment over the 2004 show and the ensuing hoopla.

For its part, the NFL put it back on NBC, saying there was “a failure in NBC’s delay system,” and adding that the bird was “completely inappropriate, very disappointing, and we apologize to our fans.” An NFL source said that while the NFL did arrange for the performers, including M.I.A., and produced the show, there was no indication in rehearsal that she was going to flip it.

The Parents Television Council called the finger a “slap in the face” (not sure whether pun was intended) and asked NBC and the NFL to hold those responsible accountable. It did not threaten to complain to the FCC, however. Its complaints over Jackson’s reveal on CBS helped prompt the FCC’s indecency crackdown.

* According to footnote 101 in the FCC’s omnibus order of March 15, 2006, which provided “guidance” to broadcasters about what it could find indecent: “[U]se of visual images in conjunction with [song] lyrics to describe and depict sexual activity could be described as innuendo rather than direct references, they are nonetheless sufficiently graphic and explicit to render the material actionably indecent because the sexual import of those images in conjunction with those lyrics was “unmistakable.”