Adelstein: Indecency Complaint Clarification Needed


FCC Commissioner Jonathan Adelstein took issue with some parts of the FCC's order upholding its $550,000 fine against the Janet Jackson 2004 super Bowl reveal (actually, Justin Timberlake did the revealing).

In a partial dissent from the Wednesday order, his criticisms were several, including that the FCC had not clarified its complaint policy and hadn't fined enough stations.

Calling the Jackson action "arguably one of the most shocking incidents in the history of  live broadcast television," Adelstein said, as he did in his partial dissent from the initial order, that the FCC should have fined all the CBS stations, not just the CBS-owned stations. That would have boosted the total fine to several million dollars.

"Notwithstanding  the  fact  that  this  Commission  has  always  purported  to  apply  a  national indecency  standard  on  the  broadcast  medium," said Adelstein, "the  Commission  has  failed  to  penalize  the  vast  majority  of  stations  that  actually  broadcast  the  offending  halftime  performance."

Adelstein also says the order did not clarify the FCC's new policy that it can only levy fines for broadcasts that were actually the subject of viewer complaints. That means to fine a station, a complaint has to cite that station. "It  is  still  unclear  how  the  Commission  determines  the  sufficiency  of  a  viewer’s  complaint  in  light  of  this  new  enforcement  policy," he said.

Adelstein also said there was insufficient clarity on how to treat a complaint where it was unclear the complainant had seen the show in the market complained about, as well as whether it had been viewed over cable or broadcast.

There is one theory that holds that a broadcast viewed on cable has the same protections from FCC indecency enforcement as any cable network carried on the pay service, though others argue that must-carry rules make TV stations uniquely pervasive in cable homes as well.Adelstein explained his confusion in a footnote to the statement: "In the Omnibus TV Order [a March 15 order proposing fines against about a hundred stations over a dozen or so programs], the sole  guidance the Commission provided was that it would propose forfeiture against only the  licensee whose broadcast of the material was actually the subject of a viewer complaint. Yet in the same order, based on a California viewer’s complaint of  indecent material against a local  Washington,  D.C. affiliate and the entire network, the Commission  proposed  forfeiture only against the local D.C. affiliate. The California viewer did not even assert that she viewed the program in Washington,  D. C. Further, in the same case, it as completely  unclear whether the complainant even watched the program on over- the- air broadcasting or  on  cable. The  Commission  is obligated to resolve or clarify these legitimate concerns." Adelstein also said that the order's citing of opinion polls relating to community standards was out of line. "While the Commission, in [the] Order, maintains that it rejects the use of third- party polls as 'determinative,'" he said, "and that it does not 'rely' upon any third-party polls, we should provide clear guidance as to whether the Commission, as a matter of policy, even 'considers' polls in its indecency analysis.  The answer to that inquiry should be an unequivocal 'no.'