David Solomon, chief of the Federal Communications Commission's Enforcement Bureau, said that when the bureau was created five years ago, their unofficial motto was firm, fast, flexible and fair. They joked that they might become known as the "f-word" bureau. Little did he know?
He insisted to a Media Institute crowd Wednesday that the Bono decision did not mean the f-word was, per se, off limits, and said the bureau and commission still are taking context into account, pointing to the precedent of the news exemption for f-words in mafioso John Gotti tapes on NPR.
He did not concede the point, but did recognize the criticism that the punishment of the fleeting, live, non-sexual adjectival f-word by Bono left little room for a non-actionable use of the word, at least in the entertainment realm.
But news is not a shield, either, he pointed out, citing the KRON-TV puppetry of the penis case, in which a morning news show was fined for an errant puppet. Solomon said that fine was because the on-air newspeople appeared to be encouraging the "flash."
Solomon, whose earlier decision that the Bono f-word was not indecent was reversed by the full commission, told a Media Institute crowd in Washington that broadcasters must start doing more to self-regulate, and not hide behind "the mantra of the First Amendment." He praised Clear Channel's settlement, but said more needs to be done. "There is a clear line broadcasters are crossing," he said.
Solomon said he expected the FCC's new indecency enforcement regime to be challenged in the courts, saying he would welcome the guidance on how best to proceed with enforcement as he tries to balance First Amendment concerns with a content enforcement power that has been on the books since 1927.
He said that court challenge could come sooner than later, citing a D.C. circuit court decision last year in the AT&T "slamming" case that a petitioner doesn't have to wait until the Justice Department tries to collect a fine before challenging it in court.
Although the FCC has been fining the maximum of $27,500 per indecent incident as part of its ramped-up enforcement, Solomon said that if the Congress boosts the fines by a factor of 10, as expected, he doesn't expect to continue to routinely fine the maximum.