Broadcasters better be on their toes. A changing attitude in Washington promises a tougher stance on indecency, says one expert on fighting the FCC. John Crigler has some suggestions for dealing with it.
"People are falling all over themselves to regulate," says Crigler, attorney for station owner Pacifica. "The FCC sees an easy political issue here. They're going to get more power. Congress is all with them, and nobody thinks about the fact that they are regulating constitutionally protected speech."
With the FCC preparing to slap fines on the majority of 30 pending indecency complaints, the potential impact on the bottom line is not lost on the Broadcast Cable Financial Management Association.
BCFM plans a conference call next month to give members tips on living with what probably will be a trickier enforcement standard. BCFM President Mary Collins said the indecency primer was planned before the Super Bowl halftime flap, but the timing couldn't have been better.
Crigler, of Washington law firm Garvey Schubert Barer, last year persuaded the FCC to rescind its fine against KBOO(FM) Portland, Ore., for airing the Sarah Jones rap song Your Revolution. The fine had its ironies because the song is an anthem rallying black women not to fall for the vulgar stereotyped version of womanhood in many rap songs.
For $69, Crigler will walk stations through strategies for avoiding the sort of racy programming that makes Washington see red and stations lose green. If they do run afoul of regulators, he has strategies for appealing the fines.
One strategy is patience. "They're not all going to get fast-track treatment like CBS," he says. Reversing the KBOO fine took over two years.
The FCC is reluctant to weigh factors like artistic and political merit. "They will acknowledge that the factors are relevant," Crigler says, "but they really don't know what they are doing."
He thinks TV and radio execs need some practical advice. For example, he says, "a radio program director needs to screen every song. It isn't going to work to pop on a new CD, listen to 10 seconds of it, throw it on the air, and try to defend yourself later."