FCC’s Colbert Investigation Has Consequences

Complaint can be punishment, says veteran attorney

Why This Matters

Whether termed “indecency” or not, a complaint can work its way against a network for a long time.

Stephen Colbert’s late-night jabs at President Donald Trump have drawn plenty of heat, with talk of FCC investigations and threats to creative content.

But while the FCC is highly unlikely to take any action, there is still a cost to the regulatory overhang of a government investigation regardless of the eventual outcome.

Colbert let fly with some colorful insults aimed at the President, including an oral sex reference (bleeped) involving Vladimir Putin — he later conceded that he would change a few words that were “cruder than they needed to be” — and calling the President “BLOATUS,” “presidunce” and “pricktator.”

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FCC chairman Ajit Pai confirmed it had received complaints about the broadcast and was looking into them, as it does with all such complaints. But since the broadcast was in the 10 p.m. to 6 a.m. safe harbor where indecent content is permissible on broadcast TV, the FCC is unlikely to be able to take any action, even if Pai wanted to.

There is also a law against obscenity, but that is content without redeeming social importance, and given that the most extreme web porn, except involving minors, is allowed under the obscenity law, Colbert’s slams would hardly seem to be in danger on that front either.

However, even complaints that are eventually dismissed have costs, says John Crigler, a partner with Garvey Schubert Barer in Washington, who has defended broadcasters against indecency and even obscenity claims.

“The complaint can be the punishment,” he said, and have real consequences that can include holding up license renewals or transfers — the complaint would be against any CBS affiliate where there is a complaint from a viewer in that market (FCC complaints are against stations, not networks). A pending complaint is also something that a station has to report to its auditors.

A complaint could also prompt a settlement with the FCC to get out from under the cloud of an investigation that can drag on, particularly if there is a pending merger with license transfers that need approving. “Sometimes it is worth it to pay the piper and march on,” Crigler said.

The last big crackdown came under a Republican chairman and with Congress marching programmers and government officials into hearings to ask what was to be done to prevent another Super Bowl “reveal.”

Another way the FCC could send a signal that the content was concerning, but without taking action itself, would be to point out that its hands were tied on the indecency front given the safe harbor, but refer it to the Justice Department since it was protected from FCC indecency rules by that safe harbor rule, but not from the DOJ’s enforcement of obscenity, which is illegal at all times.

Back in February, after an F-bomb on Saturday Night Live and Adele’s F-bomb on the Grammys, Pai said of the indecency rules in an interview with Fox Business: “The law that is on the books today requires that broadcasters keep it clean, so to speak.”

Pai did suggest he would be watching what broadcasters say on the air: “As a parent I want to make sure that my kids have a wholesome experience when they are watching programs like that,” he said.