It is apparent by the number of hateful and vitriolic calls and e-mails that I, and my members, have received following the AP story about my advice to our member stations on indecent language in a DSCC third party political ad that the general public has little, if any, understanding of the restraints under which broadcasters operate. Let’s be very clear here: my advice to stations had nothing to do with Mr. Burns or Mr. Tester and everything to do with helping our members comply with Federal law.
Unlike newspapers and cable and satellite radio and television, free over-the-air broadcasters must follow a strict, but oftentimes murky, set of regulations approved by Congress and administered by the Federal Communications Commission. Earlier this year Congress increased the penalty for “indecency” to $325,000 per incident, a ten fold increase from $32,500, up to a maximum of $3,000,000 per day per station. If each television station in Montana had run this ad just one time, and the Commission later found it “indecent,” the fines could have totaled $18,250,000!
Unfortunately neither Congress nor the Commission has yet come up with a clearly defined set of standards that can be relied upon to judge “indecency.” For example, they declined to fine stations for airing “Saving Private Ryan” which contained multiple uses of the “F” word, but did fine stations for a single, fleeting use of the same word by Bono during a live awards ceremony. It is exactly this inconsistency that prompts us to always advise our members to exercise caution and consult legal counsel.
Ironically, shortly after issuing my station advisory I left for a meeting where two FCC Commissioners—one Republican and one Democrat—and the head of the FCC’s political compliance division and no fewer than 50 communications attorneys were in attendance.
FCC Commissioner Jonathan Adelstein, a Democrat, told the audience that “he used to be able to tell broadcasters to look to past Commission decisions for guidance on the FCC's indecency standard, but he's not so sure anymore. I'm a little confused myself, which is not good for you." Commissioner Robert McDowell, a Republican, admitted to “not being able to give you any clarity on what is or is not indecent. So basically, you have 40% of the FCC saying, essentially, ‘I don't know.’" It is precisely this indecision that worries us. At a later session Bobby Baker, the head of the political compliance division, advised that “given the uncertainty at the Commission, you are always better to err on the side of caution and decline the ad.” Not a single lawyer in the room disagreed. Mr. Baker further asserted that had the ad in question come from a candidate rather than a third party (the law treats candidate authorized and sponsored ads very differently from those placed by third parties such as the campaign committees for the Democratic or Republican parties), he would have advised stations that they would be well within their rights to channel the ads to the “safe harbor” time period between 10:00 PM and 6:00 AM. You can always differentiate between candidate sponsored ads and third party ads because candidate sponsored ads must contain the now ubiquitous “I’m (candidate’s name) and I approved of this ad.”
I seriously doubt that you would ever see such an ad sponsored by Mr. Tester’s campaign because, quite frankly, I think he has a lot more class than that.
Should the DSCC or any other group or individual care to purchase a surety bond guaranteeing the amount of any potential fine against our stations, I will be happy to reconsider my advice.
President / CEO
Montana Broadcasters Association