Washington

FCC Extends Comment Deadline on Indecency Policy Change

Grants NAB request for more time to poll its members on impact 5/13/2013 12:02:53 PM Eastern

In response to a request from the National Association of Broadcasters, the FCC has extended the comment deadlines to June 19 and July 18 on its proposal to change its current indecency enforcement policy.

FCC chairman Julius Genachowski signaled last fall that the FCC would only pursue "egregious" complaints. That was a way to help resolve some of the million plus backlog of complaints. Since then, the commission sought comment on whether that should become an official change from its inconsistent indecency enforcement policy.

The initial comments were due May 20 and June 18, but NAB said it needed more time to poll its members on the change and its impact. So far, the docket boasts over 94,000 comments, mostly several-line criticisms of the planned change.

The FCC has been getting pushback from the Parents Television Council, Morality in Media and others for what they see as a move toward more lax enforcement.

The direction from the chairman to only go after egregious cases, which B&C reported back in February, followed the Supreme Court decision in FCC v. Fox that the FCC's fleeting indecency and profanity enforcement policy, at least as applied, was too vague. The court did not find the regime unconstitutional, but said it was applied with insufficient notice, which violates administrative procedure laws.

The current FCC has spent several years defending previous efforts to regulate fleeting nudity and profanity. But last September, the commission dropped its pursuit of Fox over nonpayment of a 2003 indecency fine for Married by America, dismissing the suit in D.C. district court.

In March, the FCC put out a public notice seeking comment on whether that "egregious" standard should be adopted as the FCC's new approach post-FCC v. Fox.

It also asks whether the FCC should revert to its policy of requiring repeated rather than isolated utterances for an indecency finding, or treat isolated, "non-sexual" nudity different from isolated profanity. While the FCC is gathering comment for a possible future decision, the "egregious" policy change remains in place.

The notice does not define what the FCC has been considering "egregious" in determining what meets that standard, but a spokesperson did refer to this 2001 guidance from the commission, signaling that the examples there met the standard. The notice also makes clear that the FCC will review and take action against such complaints.

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