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FCC Tackles Backlog of Indecency Inquiries

Shows from four years ago among million-plus pending complaints 3/11/2010 04:42:00 AM Eastern

After a hiatus of what numerous
attorneys say is
close to two years, the
FCC has begun to follow up on
some of the one million-plus
indecency complaints it has
acknowledged are in its pipeline,
including one concerning
a Dr. Phil episode that aired
four years ago.

This development will require
broadcasters to once again
hunt down old show tapes, and
accrue documents and other
materials—along with new
lawyers’ fees—to defend their
own or their networks’ programming
decisions.

Two communications attorneys
who spoke on background
acknowledged that they are
aware of at least three letters
of inquiry sent out by the FCC
in the last two months. After a
complaint is filed, the letter is
essentially the FCC’s first step
in following up on a complaint
if the Enforcement Bureau
deems that it merits further
inquiry. It is a step the FCC
has heretofore been reluctant
to take.

The letters come after a period
of court-enforced—or at
least prompted—inactivity on
that front, the attorneys said.

That hiatus was due to the court
decisions, including the FCC’s
indecency findings against
the Super Bowl halftime and
swearing on Fox, that initially
went against the commission.

FCC sources had suggested
back in the wake of those two
lower-court decisions, which
overturned indecency findings,
that the commission’s hands
were effectively tied. The
sources further implied it was
a safe bet that no indecency
complaints would be followed
up anytime soon.

Republican Commissioner
Robert McDowell said during
his renomination hearing last
June that it was past time for
the commission to start clearing
out the backlog of what
was then some 1.2 million indecency
complaints. An aide to
the commissioner, while saying
there has been no group briefi ng
on indecency issues in general,
added that there was no comment
on the apparent resumption
of indecency letters.

RENEWED CALL TO ACTION

But the Supreme Court’s remand
and/or reversal of both
decisions, and a new FCC
chairman vowing to clear out
a backlog of complaints of all
types, has once again inspired
action on the indecency front.
“They have a ton of those
things, and I think they are
just trying to push them out,”
said one of the communications
attorneys.

He said that the complaint
letter he was familiar with targeted
a 2006 episode of Dr.
Phil dealing with masturbation.
He said that before this
letter went out, it had been
“approximately forever”—certainly
more than a year—since
he had seen a letter of inquiry
on indecency out of the FCC.

The other attorney would not
identify the subject of the complaint,
but said it was a separate
complaint and that he knew of
at least one other, though he
had not seen it.

Since the Dr. Phil complaint
is not about nudity or profanity,
it would appear to be a
long shot for FCC action. But
even though a letter does not
mean the FCC will necessarily
levy a fine, it still requires
action on the broadcaster’s
part. The station must compile
evidence—tapes, scripts—and
make its case for why it thinks
the program was not indecent,
or for extenuating circumstances
if it does.

That process takes a lot of
time and, more important,
money, said one of the attorneys.
While noting his own
upside—he will be on the receiving
end of some of this
money—the attorney acknowledged
the vexing downside for
broadcasters.

“Inquiries are quite intrusive
and burdensome,” he said. “It
is not cost-free, even if you
don’t hire me.”

 ONLY THE BEGINNING

Both attorneys said they believed
this was only the beginning
of an effort to clear out
the backlog. One, however,
added that it could also be a
gesture meant to demonstrate
to legislators concerned about
the indecency issue that commissioners
weren’t sitting on
their hands.

An FCC spokesman said the
commission does not comment
on its review of complaints.

 

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