Editorial: That’s Just ‘Flunked’

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We don't mean to pick on the FCC. OK, scratch that: In this case, we definitely mean to pick on the FCC.

If we had searched long and hard for a better example of the commission’s self-inflicted wounds on indecency enforcement, we could not have found a better one. This week’s “Washington Watch” section, which spotlights some arguments for “Getting the heck out of indecency-enforcement Dodge,” includes the plight of a noncommercial station in Minnesota whose license has been “in limbo” for three years, according to the station, apparently because a listener mistook the phrase “you flunked me” for, well, something else, in a public radio segment about Breaking Bad, the much-decorated AMC series.

Breaking Bad actually could use stronger language because it is on cable, and cable operators can pretty much say what they want on TV. That is one of the points broadcasters have been making in comments to the FCC. But in this case, Breaking Bad wasn’t, which is clear from the transcript of the show and the audio from the show on the NPR website, which FCC staffers also have access to.

But the point is that the FCC has both let an easy call remain unmade, and left a station’s license in limbo after what amounts to evidence that suggests the humorously confused SNL character Emily Litella was doing the complaining, when she wasn’t busy calling about the “Supreme Court’s decision on the deaf penalty.” Granted, this is partly because the commission had more than 1 million complaints to try to work through. And that is due to the commission essentially having invited those complaints by being an activist agency on indecency—up until former chairman Julius Genachowski ramped it back after a partial smackdown from the courts.

Sometimes it is difficult to tell whether broadcasters are asking for no indecency regs, or for the government to impose the same regime on cable. And that uncertainty is probably no coincidence, since broadcasters are looking to hedge their bets. If they can’t get more freedom, the competition should be under the same constraints. That is not the kind of level playing field that best serves the public, but we understand broadcasters’ frustration with still being singled out for special FCC treatment.

The FCC is currently still getting input from the public on whether it should focus only on egregious cases. We think they should—though that will ultimately require the time spent on defining “egregious”—if the alternative is to chase every fleeting indecency and profanity.

But we agree with the National Association of Broadcasters that, at some point—and hey, how about now?—the FCC needs to recognize that it cannot justify imposing indecency regs on broadcasters based on last century’s argument that it was uniquely pervasive or accessible to children. We contemplated taking a random poll of some children to determine how pervasive broadcast TV was vis-à-vis other distribution platforms currently vying for their attention, but they were too busy surfing the Web from their home computers and smartphones to answer.

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