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FCC Lowers $4 Million-Plus Indecency Boom - Broadcasting & Cable

FCC Lowers $4 Million-Plus Indecency Boom

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In its most sweeping indecency actions ever, the FCC has hit the industry with millions in fines and proposed fines, including unanimously upholding the $550,000 fine against CBS O&O’s for the Janet Jackson Super Bowl reveal, as well as finding episodes of Without a Trace, Surreal Life 2 and numerous other shows indecent.

The proposed fines represent multiple millions of dollars. The maximum $32,500 fine against 111 CBS stations for an episode of Trace (a scene with a teen sex party) translates to over $3.6 million alone.

Then there is the $550,000 fine for Jackson and another proposed $355,000 in fines against six other shows for language and sexuality.

Trace is the single biggest indecency fine, and the actions are by far the most ever taken by the FCC against TV, which has heretofore been the subject of only a handful of complaints.

The Jackson action is a fine, while the others are proposed fines that the parties will have an opportunity to refute.

But in what is a new direction for the FCC, it said it would not extend fines to other stations that have broadcast an "indecent" show if they have received no complaints from the markets where the show aired. "We recognize that this approach differs from that taken in previous commission decisions, " the FCC said, ..."but in the absence of complaints concerning the program filed by viewers of other stations, it is appropriate that we sanction only the licensee of the station whose viewers complained about that program."

For NBC, even one complaint was too many. The network says it will challenge its fine in court, saying: "The FCC has no authority to censor a program based on its own taste." CBS is likely to go to court as well. Attorney Robert Corn-Revere, who would likely spearhead any court challenge to the Jackson fine--CBS’ next step beyond simply not paying it--said he could not comment on the FCC decisions.

Of the Jackson decision, CBS said in a statement that it would "continue to pursue all remedies necessary to affirm our legal rights," calling the fine "just another step in the process."

Of the Trace fine, CBS said: "[the network] strongly disagrees with the FCC’s finding that the Dec. 31, 2004 broadcast of Without A Trace was indecent.

The program, which aired in the last hour of prime time and carried a ‘TV 14’ V-Chip parental guideline, featured an important and socially relevant storyline warning parents to exercise greater supervision of their teenage children.

"The program was not unduly graphic or explicit, and we will pursue all remedies necessary to affirm our legal rights, while knowing that millions of Americans give their stamp of approval to Without A Trace each week."

According to the raft of FCC actions that has been anticipated for months--all TV--pixilating is no defense for nudity, which means bleeping may not be a defense for language either.

"The Commission today affirms its initial finding that the broadcast of the Super Bowl XXXVIII Halftime Show was actionably indecent," said FCC Chairman Kevin Martin. "We appropriately reject the argument that CBS continues to make that this material is not indecent. That argument runs counter to Commission precedent and common sense."

It did a lot more than that. The FCC also found several programs indecent for language, including an episode of NYPD Blue and a PBS show, The Blues: Godfathers and Sons. According to those rulings, bullsh-t can be indecent, as are the f-word and s-word in a documentary.

Blue was not fined because the incident occurred before the FCC’s Bono decision, which put stations on notice that it would target language. Blues was fined, however, for some swearing post-Bono.

According to the FCC actions, breasts can be indecent, and what is far more problematic, pixelating is no defense, as the FCC said in proposing a fine against Surrreal Life 2: "In this regard, the mere pixilation of sexual organs is not necessarily determinative under our analysis because the material must be assessed in its full context. Here, despite the obscured nature of the nudity, it is unmistakable that partygoers are exposing and discussing sexual organs."

That suggests that the FCC’s "I know it when I see it" enforcement could extend to bleeped language as well if it was clear what was being bleeped.

Far from reconsidering its decision that an f-word by Bono in a Golden Globes broadcast was indecent, as numerous First Amendment scholars suggested it should, the FCC expanded its crackdown on language.

Those indecency findings against language troubled Democratic Commissioner Jonathan Adelstein, who disssented in part, saying: "The Order builds on one of the most difficult cases we have ever decided, Golden Globe Awards, and stretches it beyond the limits of our precedents and constitutional authority.

"The precedent set in that case has been contested by numerous broadcasters, constitutional scholars and public interest groups who have asked us to revisit and clarify our reasoning and decision.

"Rather than reexamining that case, the majority uses the decision as a springboard to add new words to the pantheon of those deemed to be inherently sexual or excretory, and consequently indecent and profane, irrespective of their common meaning or of a fleeting and isolated use."

Adelstein also took issue with the FCC's decision not to fine multiple stations, saying "I cannot find anywhere in the law that Congress told us to apply indecency regulations only to those stations against which a complaint was specifically lodged. The law requires us to prohibit the broadcast of indecent material, period."

First Amendment attorney John Crigler, who has represented Pacifica in indecency challenges, saw some silver lining in the FCC’s decision not to extend the language crackdown to so-called fighting words, but confine it to sexual and excretory functions. He also said he was not surprised that the commission said pixilating was not a defense, saying it has been moving in that direction.

NBC was quick to criticize the ruling against an independent Spanish-language station NBC owns:

"The FCC’s decision to fine NBC Universal’s Spanish-language independent television station KWHY for airing in Los Angeles a movie that has been repeatedly broadcast over the past dozen years is not supported by law or the FCC’s prior rulings," said NBC in a statement.

"The scene contained no nudity, offensive language or other material that a court or the FCC has previously deemed indecent. The scene was pivotal to the movie’s plot and the relationship between the two main characters.

"Viewers were properly warned about the movie’s adult content in the strongest possible terms, both through a written advisory and a TV-MA rating, allowing them to make their own informed choice as to whether or not to watch the program. The FCC received only one single complaint.

" While the challenged rape scene in "Con El Corazon En La Mano" contained material that some people may find disturbing and distasteful, the FCC only has the legal authority to decide whether it violates the statutory and constitutional standard for indecency. This movie did not violate that standard.

"The FCC has no authority to censor a program based on its own taste."

"Moreover, the FCC justified the maximum fine in part because a viewer advisory had been aired, which bizarrely penalizes a broadcaster for taking its responsibilities to its audience seriously. If the FCC adheres to its ruling, we intend to challenge it in court."

Fox said: "We do not agree with the FCC's decision that a fleeting expletive in the context of a live broadcast is either indecent or obscene under the law and Supreme Court precedent."

The FCC had not taken any indecency actions, other than clearing out some of the docket through a couple of consent decrees, in over a year. One of those companies was CBS, but the Without a Trace episode aired after the consent decree was signed.

According to a pleased Parents Television Council, which lodged many of the Trace complaints, the first episode’s airing was covered by the consent decree, but a re-airing a few weeks later was not.

In addition, said PTC Executive Director Tim Winter: "We applaud the FCC for upholding the substantial fine against CBS for Janet Jackson’s indecent exposure during the 2004 Super Bowl, for finding the graphic sexual content in The Surreal Life 2 to be indecent, and for clarifying whether utterances of the F-word and S-words are indecent."

Not in the batch were the reconsideration of the Bono finding and a complaint against Fox’s Married By America, both of which are still pending, though the FCC would be hard-pressed to overturn Bono when it used the Golden Globes as a starting point for its expansion into more language. A separate batch of radio indecency complaints are also in the works.

The FCC’s long report on the indecency complaints dismissed some casual uses of words like "ass" and "slutty sister," and a political commercial which mentioned a judge’s leniency toward a man convicted of "rape" and "sodomy" noting in that case that the mere mention of conduct that involves sex is not in itself indecent.

Similarly, it said a March 18, 2004, Oprah Winfrey Show segment in which an expert explained teen sex slang for certain sex games, like a "rainbow party" during which girls perform oral sex on boys, was not indecent.

The FCC said that while the conversation was graphic, the "material is not presented in a vulgar manner and is not used to pander to or titillate the audience. Rather, it is designed to inform viewers about an important topic.

"To the extent that the material is shocking, it is due to the existence of such practices among teenagers rather than the vulgarity or explicitness of the sexual depictions or descriptions. It would have been difficult to educate parents regarding teenagers’ sexual activities without at least briefly describing those activities."

Nor did the FCC find against NBC for a March 8 episode of a now-cancelled sitcom, Committed.

A complaint the FCC received said an episode showed a woman grabbing a man’s genitals.
The FCC concluded: "Our review of a videotape of the episode indicates that the episode does not show the woman touching the man’s genitals – the touching is only suggested – and the suggested touching is not sexual in nature, but apparently intended by the female character to help the man hit the high notes of the national anthem."
Likewise, it dismissed a complaint against CBS’s Two and a Half Men in which it is apparent that female physician has squeezes an actor’s genitals to the point of discomfort while giving him a physical, after she discovers he forgot that he had dated her in the past.

But the FCC did fine some Spanish-language stations for playing suggestive music videos and for depicting a rape in a telenovela, but let slide some on-air swearing.

The most notorious case involved Nicole Ritchie during the Billboard Music Awards show on the Fox network on Dec. 10, 2003, where she used the F-word and the S-word. But the FCC said, under prevailing FCC rules at that time (prior to its Bono decision that made even such casual mentions actionable) Fox, the offending network, couldn’t be faulted for not bleeping her.  --PJ Bednarski contributed to this report.
Here, from the table of contents of a 200-plus page report, is a list of programs for which complaints were either acted upon or dismissed.


A.Notices of Apparent Liability for Forfeiture.......................................................................

22

1.“The Surreal Life 2” (February 8, 2004)...................................................................... 22

2.“Con El Corazón En La Mano” (October 9, 2004)...................................................... 33

3.“Fernando Hidalgo Show” (October 19, 2004)........................................................... 43

4.“Video Musicales” (February 2-March 8, 2002)......................................................... 52

5.”The Blues:Godfathers and Sons” (March 11, 2004)................................................. 72

6.“The Pursuit of D.B. Cooper” (March 15, 2003)......................................................... 87

B.Indecent And/Or Profane Broadcasts But No Forfeiture Proposed.................................. 100

1.“The 2002 Billboard Music Awards” (December 9, 2002)........................................ 101

2.“The 2003 Billboard Music Awards” (December 10, 2003)...................................... 112

3.“NYPD Blue” (various dates between January 14 and May 6, 2003)....................... 125

4.“The Early Show” (December 13, 2004)................................................................... 137

C.Broadcasts That Do Not Violate Indecency/Profanity/Obscenity Restrictions................. 146

1.“Alias” (January 5, 2005)........................................................................................... 147

2.“Will and Grace” (November 11, 2004).................................................................... 153

3.“Two and a Half Men” (February 21, 2005).............................................................. 160

4.“Committed” (March 8, 2005)................................................................................... 163

5.“Golden Phoenix Hotel & Casino Commercial” (February 19, 2005)....................... 166

6.“The Oprah Winfrey Show” (March 18, 2004)......................................................... 173

7.Political Advertisement (October 14, 2004)............................................................... 180

8.“The Amazing Race 6” (December 21, 2004)........................................................... 188

9.Various Programs Containing Expletives (various dates between August 31, 2004 and February 28, 2005).......................................................................................................................... 193

10.“Family Guy” (January 16, 2005).............................................................................. 200

11.“The Academy Awards” (February 27, 2005)........................................................... 206

12.“8 Simple Rules” (February 4, 2005)......................................................................... 210

13.“The Today Show” (January 11, 2005)..................................................................... 213

14.“The Simpsons” (September 9, 2004)........................................................................ 219

15.“America’s Funniest Home Videos” (February 5, 2005)........................................... 224

16.“Green Bay Packers v. Minnesota Vikings” (January 9, 2005)................................. 227

17.“Medium” (January 17, 2005).................................................................................... 230

FCC RELEASES ORDERS RESOLVING NUMEROUS BROADCAST TELEVISION INDECENCY COMPLAINTS

Washington, D.C. – The Federal Communications Commission (FCC) today released decisions resolving over 300,000 consumer complaints about the broadcast of indecent, profane, and/or obscene television programming.  In these decisions, the Commission addresses complaints about nearly 50 television programs broadcast between February 2002 and March 2005.  The decisions respond to the public’s growing concern about the content of television programming.  At the same time, they provide further information for broadcasters about the kinds of material that are and are not prohibited under the FCC’s indecency and profanity standards. 

In the decisions, the Commission takes enforcement action against the broadcast of a wide variety of television programming.  The FCC upholds its earlier decision against CBS for the broadcast of indecent material during the February 1, 2004 Super Bowl XXXVIII halftime show.  The Commission rejects CBS’ claim that the pulling off a portion of Janet Jackson’s bustier to reveal her breast is not indecent.  The Commission also holds that CBS consciously and willfully failed to take actions to prevent the broadcast of the material, and that CBS is responsible for the halftime show.

The Commission also finds episodes of “Without a Trace” and “The Surreal Life 2,” which contained numerous graphic, sexual images, to be impermissible under the Commission’s indecency standard.  The Omnibus Order also finds indecent the broadcast of a movie containing a graphic rape scene and a talk show featuring a female guest who appeared in an open front dress.  Finally, the Commission finds indecent and profane several television programs containing offensive language.  Where material is found actionable, the Commission sanctions all licensees whose stations are the subject of viewer complaints filed with the Commission. 
Finally, the Commission denies complaints regarding numerous other television programs.  Although the complained-of material may offend many people, the Commission concludes that the material in 28 television programs involved was not actionable. 

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